mmmmm IMHlwiiii I' 1 1 iuuwtMilJU«*PWi«wuui ' i Cornell University Library KFN5205.R31 1903 The law and practice of surrogates' cour 3 1924 022 805 042 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022805042 THE LAW AND PRACTICE OF SURROGATES' COURTS STATE OF InTEW YORK, By AMASA a. KECriELD, LL. D. sixth edition Bt EOBEKT l. redfield, OF THE NEW YORK BAR. NEW YORK : bakbe, vookhis & company, 1903. Entered, according to Act of Congress, in the year eighteen hundred and ninety-four, by AMASA A. REDFIELD, In the office of tho Librarian of Congress, at Washington. COPTHIGHT, 1902, Bt B,0BERT L. REDFIELD. J. a. LYON COMPANY PRINTERS AND BINDERS ALBANY, N. *. PREFACE TO SIXTH EDITIOK The task of preparing the present edition, owing to the enor- mous number of new cases (many reported under different titles) with which the profession continues to be inflicted, has been unusually onerous, and though it has not been thought advisable to make any radical revision in the substance of the text, except in so far as the acts of the legislature have required it, it is believed that this edition will be found more serviceable than its predecessors. ~Ho one, whose attention is directed to the subject, can fail to remark the great increase in the volume of litigation conducted in surrogates' courts, since their establishment as courts of record. In the fourth edition of this work (1890) there were cited 3,700 cases; in the fifth edition (1894), 4,000, while in the present edition no less than 5,500 cases are mentioned in the notes, on different pertinent points. Very many of these do not appear in the official reports, but wherever possible, all cases reported since the last edition have been cited as well from the official as the unofficial series. An effort has been made to save the reader the necessity of con- sulting reports which are possibly inaccessible, by a statement of the points decided. To make that possible, within a reasonable compass, the pages have been somewhat lengthened, sharper-faced type has been employed, and condensation of matter has been freely indulged in; yet, notwithstanding, the present work is larger, by thirty-nine pages, than the last preceding edition. It is believed, too, that the numbering of the section headings, thus permitting a closer indexing of the subject-matter, will facilitate the practitioner. The forms have been revised, to meet the requirements of Code amendments, and a considerable number of new precedents have been appended. In this connection I cannot omit to acknowledge my obligation to the several surro- gates of the State, for their efficient aid in furnishing me with copies of the forms used in their respective courts. E"ew York, December, 1902. EOBEKT L. REDFIELD. [iii] TABLE OF COlNrTE:N"TS. PAGE Preface iii Table of Statutes Cited xiii Table op Cases Cited xxvii Introduction Ixxv CHAPTEE I. CONSTITUTION AND ORGANIZATION OF SURROGATES' COURTS. Tit. 1. — The court and the surrogate 1 2. — Disqualifications of surrogate 8 3. — Substitutes for surrogate, in case of vacancy in office, disability, or disqualification 8 4. — Surrogates' clerks and other officers of the court, and their powers and duties 12 5. — Records to be kept by the surrogate 15 6. — Surrogate's bond and the prosecution thereof 16 7. — Compensation and fees of surrogate 20 CHAPTER II. JURISDICTION AND POWERS OF SURROGATES' COURTS. Tit. 1.— General statutory jurisdiction 23 2. — Limitation of general powers 28 3. — Incidental jurisdiction and powers 34 4. — Concurrent and exclusive jurisdiction 42 5. — Deposit and custody of wills 45 6. — Deposit of moneys and securities 47 CHAPTEE III. COMMENCEMENT OF PROCEEDINGS; APPEARANCES, PLEADINGS, ETC. Tit. 1. — Commencement of proceedings, including service of process. ... 49 2. — Appearances, pleadings, etc 58 [V] vi Table of Contents. CHAPTER IV. PARTIES TO PROCEEDINGS IN SURROGATES' COURTS. PAGE Tit. I. — Who are necessary parties 62 ■2. — Death of a party and revivor of proceeding 70 3.^ — Intervention of third parties 72 4. — Special guardians 75 CHAPTEE V. TRIAL PRACTICE, DEPOSITIONS, ETC. Tit. 1. — Hearing before the surrogate or referee. 80 2. — Depositions, discovery of papers, etc 87 CHAPTER VI. THE PROBATE OF WILLS. Tit. 1. — Proceedings before application for probate 91 2. — Jurisdiction of probate 95 Art. 1. — Establishment of wills by civil action 95 2. — Proof of wills in surrogates' courts 99 3. — Application for probate 103 Art. 1. — Application, where made 103 2. — Application for probate, how and by whom made 108 3. — The citation and its service 114 4.— Proof of will 116 Aet. 1. — Uncontested and contested probate 116 2. — Means of proof; competency and qualification of wit- nesses 120 3. — What law governs probate 130 4. — Facts material to question of probate 133 Subd. 1. — Preliminary considerations 133 2. — Execution, attestation, and publication of wills 141 3. — Testator's knowledge of contents of will.... ](i] 4. — Testamentary capacity 164 5. — Fraud and undue influence 17.) 6. — Mistakes which invalidate will 182 7. — Revocation and alteration of will 18.5 5. — Codicils and instruments annexed to will 194 6. — Lost or destroyed wills : 196 7. — Nuncupative wills 201 8. — Decree granting or refusing probate, recording will, etc 202 Table of Coh tents. vii CHAPTEE VII. PAGE THE VALIDITY, CONSTRUCTION, AND EFFECT OF WILLS 209 CHAPTEE VIII. CONTESTING WILL ON ALLEGATIONS AFTER PROBATE 239 CHAPTEE IX. LETTERS TESTAMENTARY. Tit. 1. — When and to whom letters issue 247 2. — Renunciation and acceptance of appointment 250 3. — Necessary qualifications of executor 254 4. — Ancillary letters on foreign probate 258 5. — Letters to testamentary trustees 264 6. — Force and effect of letters 267 CHAPTEE X. ADMINISTRATION WITH THE WILL ANNEXED 269 CHAPTEE XI. LETTERS OF ADMINISTRATION IN INTESTACY. Tit. 1. — Jurisdiction in cases of intestacy 280 2. — Who are entitled to letters 285 3. — Proceedings to obtain letters 291 4. — Qualifications of administrator 299 5. — Effect of grant of letters 300 6. — Administration de honis non 303 7. — Ancillary letters of administration 304 CHAPTEE XII. PUBLIC ADMINISTRATORS. Tit. 1. — Nature and object of office 307 2. — The county treasurer as public administrator 311 3. — Public administrators in New York and Kings 314 CHAPTEE XIII. TEMPORARY ADMINISTRATION 326 viii Table of Contents. CHAPTEE XIV. EEVOCATION OF AUTHORITY OF EXECUTORS, ADMINISTRATORS, AND TESTAMENTARY TRUSTEES. PAGE Tit. 1. — Incidental revocation of letters 340 2. — Direct revocation by proceeding and resignation 343 Aet. 1. — Letters of executors and administrators 343 2. — Authority of testamentary trustees 356 CHAPTEE XV. OFFICIAL BONDS OF OFFICERS SUBJECT TO THE SURROGATE'S JURISDICTION: RIGHTS AND LIABILITIES OF SURETIES. Tit. 1. — General provisions relating to ofBcial bonds 365 2. — Particular classes of bonds 376 CHAPTEE XVI. INVENTORY AND APPRAISAL OF ASSETS. Tit. 1. — Duty to make and file inventory 383 2. — Compelling return of inventory 392 3. — Articles set apart for the family of deceased 396 4. — Effect of inventory as evidence 401 CHAPTEE XVII. ADMINISTRATION OF ESTATE AND PERFORMANCE OF WILL. Tit. 1. — The office and estate of executors, administrators, and testa- mentary trustees 404 Art. 1. — The title and object of the office 404 2. — The surrogate's control and supervision 410 3. — The estate of executors, administrators, and testamen- tary trustees 412 Subd. 1. — The nature of the estate 412 2. — The quantity of the estate 418 2. — Funeral charges and expenses of administration 435 Aet. 1.^ — Funeral charges 435 2. — Expenses of administration 440 3. — Widow's quarantine and sustenance 452 4. — Reduction of estate to possession 453 Aet. 1. — Proceedings before issue of letters 453 2.- — Pursuit of legal remedies, in general 455 3. — Special proceeding to discover property concealed or withheld 464 4. — Gifts causa mortis 471 Table of Contents. ix PAGE Tit. 5. — Dealing with estate 479 Art. 1. — Sources of authority and mode of exercise 479 2. — Care and custody of estate, pending administration, and liabilities incurred therein 486 6. — Liquidation and payment of debts and taxes 520 Art. 1. — Liquidation of claims 520 Subd. 1. — Ascertaining creditors 520 2. — Presentation and proof of claims 525 3. — Determining disputed claims 534 2. — Payment of debts 550 Subd. 1. — Classes of debts and order of priority 550 2. — Marshalling assets 558 3. — Proceedings to compel payment of debts .... 662 3. — Payment of transfer tax 575 7. — Payment of legacies 611 Art. 1. — Different kinds of legacies 611 2. — Ademption and satisfaction of legacies 628 3. — Abatement of legacies 632 4. — Lapse of legacies 636 5. — Proceedings to compel payment of legacies 640 8. — The payment of distributive shares 661 Art. 1. — Devolution of property made vacant by death 661 Subd. 1. — The statute of descents 664 2. — The statute of distributions 675 2. — The rights of husband and widow 689 3. — Rights of lineal kindred 692 4. — Rights of collateral kindred 695 5. — Proceedings to compel payment of distributive share.. 696 CHAPTEE XVIII. DISPOSITION OF REAL ESTATE TO PAY DECEDENT'S DEBTS. Tit. 1. — Nature and jurisdiction of the proceeding 699 2. — Procurement of the decree 708 3. — Execution of decree for sale 727 4. — Distribution of proceeds 737 5. — Miscellaneous provisions 746 . CHAPTEE XIX. ACCOUNTINGS. Tit. 1. — Action for an accounting 749 2. — Accounting in the surrogate's court 752 Art. 1. — Surrogate's jurisdiction 752 2. — The different kinds of accounting. . 753 X Table of Contents. PAGE Tit. 1. — Abt. 3. — Intermediate accountings 755 4. — Judicial settlement of account 758 Subd. 1. — Whose accounts subject to judicial settle- ment 758 2. — When settlement may be compelled 766 3. — At whose instance settlement may be com- pelled , . . . 770 4. — The petition, citation, and answer 775 5. — Filing account and objections thereto 784 6. — Proceedings upon contested accounting 790 5. — Form and contents of the account, and production of vouchers 804 Subd. 1. — Form and verification of the account and vouchers 804 2. — The subject-matter of the account 810 6. — Compensation of executors, administrators, and testa- mentary trustees 813 7. — The decree and its effect 830 CHAPTEE XX. GUARDIANSHIP. Tit. 1. — General guardians 835 Art. 1. — Appointment and general powers 835 2. — Accounting of general guardian 848 3. — Resignation of guardians and revocation of letters .... 857 2. — Foreign guardians and ancillary letters 861 3. — Guardians by will or deed 865 CHAPTEE XXI. SURROGATES' DECREES: THEIR EFFECT AND ENFORCEMENT. Tit. 1. — Impeachment of surrogates' decrees 871 2. — Proceedings to enforce decrees under the Revised Statutes 888 3. — Proceedings to enforce decrees under the Code 893 CHAPTEE XXII. COSTS IN SURROGATES' COURTS. Tit. 1. — Rules formerly prevailing 902 2. — Costs under the Code 904 Subd. 1. — ^Award of costs 904 2. — ^Amount of costs 914 Table of Contents. xi CHAPTER XXIII. PROBATE AND REVOCATION OF PROBATE OF HEIRSHIP. PAGE Tit. 1. — Probate of heirship 917 2. — Revocation of probate of heirship 919 CHAPTER XXIV. APPEALS. Tit. 1. — Appeals to the supreme court 921 2. — Appeals to the court of appeals 920 FORMS 947 INDEX TO FORMS 1073 GENERAL INDEX 1083 TABLE OF STATUTES CITED. I. U. S. R. S. Page 691 § 3466 § 3468 966 § 4718 § 4952 II. N. Y. Constitution. 1846 art. 6 § 14 § 15 1869 art. 6 § 15 § 16 § 21 § 27 art. 14 § 12 1894 art. 6 § 4 § 15 § 16 § 20 III. Revised Laws or 1813. 1 R. L. p. 52 365 § 7 416 § 1 446 452 IV. Revised Statutes (Marginal Paging.) 1 R. S. 71 § 16 82 § 6 100 §§ 3,4 101 § 11 120 §§ 29,30 382 §§ 77,87 388 § 4 718 §§ 5,7 720 §i§ 16-20 722 §§ 14^16 § 62 725 §§ 30,31 726 § 40 727 § 44 § 45 728 § 55 730 § 63 § 70 736 §§ 119-120 738 § 139 740 § 1 742 § 17 PAOE 553 653 429 427 1 2 1 2 7 1,120 2 1 666 42 58 95 747 436 421 747 2 17 17 386 866 671 219 421 670 221 415 227 218 486, 774 361 480 560 452 400, 452 1 R. S. 2 R. S. page 744 §§ 3,4 220 747 § 21 387 424 748 § 1 230 § 2 216 749 § 3 94 750 664 752 §§ 8, 9, 10 667 754 § 19 693 § 22 64 § 25 672 755 § 20 673 773 §§ 1-2 219 774 §§ 3-4 220 § 4 482 -560 34 524 55 § 25 664 56 § 1 164 165 56-60 §§ 1-21 164 57 § 3 227 § 5 230 § 6 124 58 42 § 15 872, 874 59 42 § 18 874 60 § 21 165 § 22 201 61 § 29 872 § 30 241 §§ 30,31 95 62 § 35 929 §§ 37,38 246 63 § 39 902 § 40 141 § 41 155 64 § 43 192 § 44 191 64 § 45 190 65 § 46 191 § 47 191 § 48 191 § 49 64, 192, 670 § 50 124 ,125 § 51 125 66 § 52 636 § 53 193 § 55 925 ,929 § 57 641 67 §§ 59,60 945 § 62 923 § 63 42 ,197 [xiiij XIV Table op Statutes Cited. 2 R. S. PAGE §§ 63a ,68a 44 68 § 71 •195 69 § 3 254 § 4 254 70 49 § 8 251 71 § 14 271 § 15 252 S 16 93, 431 454, 481 § 17 270,271 72 § 22 277,418 73 § 23 24 74 § 26 295 § 27 286, 289, 316 75 § 29 271 289, 691 § 31 276 § 32 299 76 § 34 291 77 § 40 337 78 § 45 271, 303 79 § 48 7 81 § 60 93, 454 § 78 405 82 §§ 6,7 ,8 384 83 § 5 390 84 §§ 11, 12 390 § 13 391, 624 § 14 391 §§ 15, 16 392 85 § 17 394 § 21 891 86 § 23 384 § 24 392 87 § 25 484 § 27 520 §■§ 27-30 552 § 28 552 553, 556 § 29 553 § 30 552 § 33 552, 553 88 §§ 31, 39 523 § 32 564 § 33 530 552, 623 §§ 35,36 537 89 § 38 458, 535 § 39 563 90 § 41 543 § 43 640 § 44 643 § 45 632, 641 93 § 57 514 § 58 813, 904 94 § 64 690 § 65 877 § 66 764 95 § 67 929 § 71 33 96 § 71 31 § 75 676 97 §§ 76,77,78 694 98 672 S 11 ?,90 2 R. S. PAGE § 78 273 § 79 691 § 83 655 102 § 11 87 105 § 30 734 108 § 48 701 109 § 53 701 § 55 416 110 § 58 732 113 §§ 1-5 526 114 § 4 431 § 9 65 §§ 9-11 647 115 § 13 647 116 § 18 32, 570, 756 § 18 743 § 19a 892 § 21 931 118 § 3 . 323 § 4 309, 315 § 34 309 119 § 5 316 § 6 309, 317 § 7 309, 317 120 i 8 309 §§ 8-13 318 121 § 14 316 § 15 308 §§ 16,17 318 122 §§ 18, 19, 20 319 §§ 21,22 323 § 23 309 123 §§ 24-27 317 § 28 308, 317 124 § 29 318 § 30 320 § 31 319 125 §§ 32,33 • 320 § 33 310 § 35 subd. 14 315 § 35 322 126 §§ 36,37 323 127 § 38 317 §§ 39,40 310 §§ 42,43 315, 324 128 § 44 324 §§ 45,46 316 129 § 47 308, 309 § 50 308, 309 § 51 308 130 §§ 52-55 312 §§ 57-59 312 131 § 60 314 § 61 309 §§ 61-64 313 § 63 309 § 65 308, 312 §§ 66-68 314 132 § 67 310 §§ 69,70,71 313 §§ 72,73 310 146 § 48 690 Table of Statutes Cited. 2 R. s. PAGE 150 § 1 865 s§ 2,3 866 152 § 9 892 § 13 929 153 § 18 929 §§ 20,21 845 s 22 854 191 § 152 , 561 220 § 1 23 s 1 subd 1 107, 280 subd 3 36 221 § 1 23,31 § 6 889 223 § 9 900 § 10 902, 903, 909 S 11 40 27G 7 393 §§ 11-24 88 404 § 67. 46 405 §§ 68,69 46 § 70 46 447 § 1 433, 528 « 2 433 449 § 17 92, 405 , 433, 435 452 §§ 32,33 669 500 557 608 § 95 " 937 609 §§ 97,98 941, 944 S 104 922 610 § 105 929 618 § 35 907 620 904 636 § 27 903 L. V. Laws (Session Laws). 1813 c. 92 § 2 284 1830 c. 230 § ■17 254 c. 320 § 18 299 § 19 7 § 21 9 § 23 566 1837 c. 460 § 1 109 « 1 subd. 5 107, 280 § 11 95 §§ 12-15 89 § 17 210 s 18 872 § 19 241 § 24 338 § 34 255 §§ 38,39 747 «§ 63,64 575, 892 § 65 891 § 70 902 § 71 23 § 72 701 § 77 88 C 469 § 61 36 1840 c. 80 428 <", 318 222 e. 386 § 40 903 PAGE L. 1841 c. 129 89 c. 261 222 1843 e. 172 701 c. 177 § 4 3 1844 c. 104 § 1 891 § 2 575, 891 c. 300 § 6 7 1845 c. 115 § 2 671 § 4 672 1846 c. 74 222 r. 274 557 1847 c. 80 §§ 1,2 416 c. 133 § 10 587 c. 276 § 8 1 § 14 3 u. 280 § 45 87 c. 298 701 c. 450 66 c. 470 § 46 58 1848 .0. 40 § 12 527 c. 200 691 c. 319 § 6 226 1849 c. 308 527 c. 375 691 1850 e. 82 700,702 § 1 26 c. 150 §§ 1,2 741 c. 272 § 1 764 R. 295 560 1851 e. 108 § 1 4 1853 c. 238 § 1 43 1855 c. 432 222 c. 547 64, 669, 670 § 1 693 1856 I-.. 147 § 4 316 1857 c. 82 § 3 700 c- 576 671 1858 c. 187 428 c. 213 17 c. 314 § 1 307,434 § 2 435 1859 ■.-. 261 § 2 535 1860 e. 90 691 c. 360 224 1862 u. 172 691 § 6 865 1863 c. 362 §§ 3,4 254 § 8 441, 813, 904 c. 358 § 27 subd. 4 316 c. 466 § 1 269 1864 c. 71 § 12 335 1865 u. 592 § 5 316 c. 733 36 1866 c. 115 929 § 1 764 c 136 586 c. 155 814 c. 656 428 c. 802 § 1 316 1867 c. 658 422 c. 722 § 8 903 c. 782 690,694 XVI Table of Statutes Cited. PAGE li. 1867 c. 782 § 1 764 § 2 70,109 255, 288, 299 § 3 164, 165 § 4 164, 165 § 5 254 § 6 286 § 11 290, 691 § 12 259, 290, 691 1868 i;. 513 671 1869 c. 22 64,670 § 1 192 i;. 260 26,700,702 c. 845 701 e. 855 § 7 16 1870 c. 20 § 1 3 c. 74 35 c. 277 428 c. 359 § 1 888 § 2 58 § 6 32, 690 § 8 42, 196 § 9 904 § 11 132,210,874,925 § 13 333 1871 c. 32 865 u. 239 § 1 17 e. 335 307 § 5 308, 325 ,;. 482 360 § 1 764 §§2,3 1 e. 859 §§5,6 2 § 7 3 § 8 9 1872 c. 92 702 c. 120 671 c. 141 671 c. 358 671 1873 c. 19 433 c. 79 254 § 1 255 c. 211 701,710 e. 225 § 1 389 c. 335 § 38 314 c. 552 917 c. 821 428 c. 830 § 10 673 1874 c. 127 917 e. 261 671 c. 267 440 c. 470 398 1875 c. 38 672 u. 336 671 c. 542 388,424 1876 e. 118 §§1,2 100 c. 448 25 c. 449 § 5 subd. 9 921 1877 c. 31 587,706 c. Ill 671 i;. 401 § 4 18 c. 416 § 1 25 1877 1878 1879 1880 PAGE L. 1877 e. 456 313 c. 129 702 e. 248 428 c, 311 9 c. 316 42 c. 389 741,846 c. 406 337 e. 231 734,813 e. 245 4,17,88 197, 255, 855 § 1 26 § 1 subd. 2 270 § 1 subd. 24 58 § 1 subd. 52 921 §§ 2,4,5 734 «. 561 427 1881 e. 319 226 c. 654 369,750 1882 c. 124 307,325 u. 185 266,418 c. 340 54 c. 410 307,323 § 216 314 § 218 323 § 219 309, 315 § 220 316 § 221 309, 317 §§ 222-224 309,318 § 225 316 § 226 308 § 227 318 § 228 319 § 230 309, 319 § 231 317 § 232 317 § 233 308, 317 § 234 318 § 235 319 § 237 310 § 239 322 § 239 subd. 14 315 § 240 323 § 241 317 § 242 310 § 244 315, 324 § 245 324 §§ 246,247 316 § 824 587 § 827 587 § 1178 317 §§ 1758-1761 46 § 2143 3 1883 f. 129, 182, 213, 221, 230, 250, 328; V, Y. Eec. of Marr. Albany, 1860; Mun- 286, 333; VI, 1; 'VII, 474, 484, 491; sell's Annals of Albany, III, 327; IV, VIII, 18, 19; XII, 197, 199; XIII, 16. 891; XXVIII, 107; Book of Inven. 2 Book of Corns. V, 62. Inteoductioit. Ixxxiii to swear executors or administrators that they "would faithfully execute their trust, or that the inventories or accounts to be ex- hibited by them in the prerogative court were true, and to super- vise the estates of intestates. This power of supervising the estates of intestates was in consequence of a clause in the act of 1692, which provided that, where any person died intestate, two freeholders 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 couiity delegated by the governor to supervise the estates of intes- tates ; that the person delegated should cause the goods and chattels to be sold, retaining the 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 enactments.^ 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 administer 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 tribunal, with this distinc- tion, however, that the local tribunal here was much more limited in its powers; and, further, that its judicial acts, such as taking 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 residu- ary estate under a will, or to any share in the estate of an intes- tate, 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 has expired, to compel its payment, in the supreme court or 1 Book of Corns. Ill, 473. Ixxxiv Inteoductiow. any court of record, if it amounted to more than £20, or if under that sum, in a court of common pleas ; and if a plea of wajit 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 mistakes 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 Eevised Statutes.^ This act and the general jurisdic- tion 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. 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.^ In fact, its whole business was managed for seventy years before the revolution, by the secretary of the province and his deputy, with little interference on the part of the governor, 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 thei con- trol of this officer. It was entirely managed by his deputy, who fulfilled many functions, which were so mixed up as the acts of one and the same person, that it was difficult even then to distin- 1 Laws of N. Y. Smith & Living- court of probate, before the 1st of ston's ed. I, 316; Street's N. Y. Coun- May, 1807, in pursuance of which the oil of Revision, 281. late Sylvanus Miller, who was then 2 The records belonging to it, and surrogate, went to Albany in 1800, everything appertaining to wills and and brought away everything that the administration of estates were could then be found. I presume that carried to Albany during the revolu- if any minutes had ever been kept of tion, before the evacuation of the city the court, they would have existed by the American troops. An act was then, and would have been discovered passed in 1799 (2 Greenleaf's Law of by Judge Miller, as the chain of rec- N. Y. 420), directing the judge of the ords now here, and which he arranged court of probate to deliver to the sur- and classified, are, for the whole colo- rogate of the city and county of New nial period, very complete and per- York all books, records, minutes, docu- feet. — Dalt, J. ments and papers belonging to the Inteoductiobt. Ixxxv guish the varied capacities in which he acted. The precise char- acter 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 covirt, were matters of great perplexity then, and a constant subject of complaint and remonstrance.^ One of the last of the secretaries, Clark, held no less than twelve distinct 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 acting as the general assistant of his principal, was examiner of the prerogative court, and the local delegate for the city and coiinty of New York, while at the same time he fulfilled the function of general delegate, or as Gov. Tryon describes the office, acting as principal surrogate. A course of management which was designed to baffle all inqtiiry then, and which succeeded in doing so,^ was not very easy to unravel after- ward, and, therefore, when the revolution broke out, very con- fused 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. The legislature, in 1778, meant to sweep away every authority vested in this court, in virtue of the prerogative 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 testa- mentary matters and in cases of intestacy, to be known as the court of probates ; and, accordingly, 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 jurisdic- tion 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 pro- bates of the colony, except the power of appointing surrogates.* From this period to 1789, this new tribunal, the court of pro- bates, continued to exercise the. same jurisdiction in such matters 1 See Gov. Moore's Letter to the 3 Daly's Judiciatl Tribunals of N. Y. Lords of Trade, and Gov. Tryon's upon 53; Rec. of Com. V, 70, 412, 418; VI, the same subject, Col. Doc. VII, 130, 201. 187, 283, 323. * 1 Laws of N. Y. Jones & Varick's 2 See Report of the Lords of Trade, ed. 23. N. Y. Col. Doc. VIII, 413. Ixxxvi Introduction. as the prerogative court had done. The proof of wills, where the deceased had efEects in more than one county, was taken before the judge of that court, and before the surrogate where the eilects 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. This court held stated sittings, at regular periods in different parts of the State, until 1783, when it was fixed in the city of New York until 1787, after which 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 revo- lution.^ In that year, 1787, an important change was made ; an act was passed^ by which the granting of probate and of letters of admin- istration was taken away altogether from the court of probates, except in certain specified cases, and conferred upon the surro- gates 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 council of appointment, should commission a surrogate for every county in the State, and empowered 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 probatei 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 admin- istration 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 be- 1 Rec. of Wills in N. Y. Surrogate's Inventories, 1 ; Eec. of Admin. IV, V, Office, XXXII, 50, 360; XXXIII, 2, VI, VII. 19, 59, 316, 421, 438; XXXIV, 436; 2 2 Laws of N. Y. Jones & Variek's XXXV, 290; XXXVI, 2; XXXVII, ed. 71. 316, 427; XXXIX, 286, 436; 1 Rec. of Introduction. Ixxxvii fore, or administration of their personal estates should be granted by, the judge of the court of probate, and in such cases the inven- tory 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 the order of dis- tributions after the payment of debts and expenses, and to compel the payment of the amounts so 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 testator, and to compel payment of it. This was a provision virtually empowering the court to call executors to account, which was an important change, as before that time probate or ecclesi- astical courts had no power, either by the canon law or by statute, to compel executors to account.^ Authority was also given to the court to enforce its decree for payment of distributive shares or bequests 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 pro- ceed according to the course of the courts having, by the common law, jurisdiction of like matters." In 1786, the court of probates, where the personal estate was insufficient to pay debts, was empowered to order the sale of the real estate, and make distribution of the proceeds among the cred- itors,^ but when the court was removed permanently to Albany, in 1797,^ it was found very inconvenient to resort thither in all cases for that purpose, and, accordingly, in 1797,* an act was passed 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 and to grant letters of administration where persons died out of the State, or within it not being inhabitants. In 1801, the surrogates were clothed with the same power as the judge of probate, to cite the administrators to account, to decree distribution, or the payment of bequests and legacies, and compel it by execution.^ In 1802, they were authorized to ap- point guardians for infants as fully as the chancellor might do f 1 Sparrow v. Norfolk, Noy'a R. 28 ; 5 1 Webster's Laws, 317, 325; Sey- Gibson's Codex, 466, 478. mour v. Seymour, 4 Johns. Ch. 409; 2 Greenleaf 8 Laws, 238. Foster v. Wilber, 1 Paige, 537 ; Dakin 3 3 Greenleaf s Laws, 391. v. Hudson, 6 Cow. 221. 4 Laws of N. Y. 1799, Andrew's ed. 6 3 Webst. 158. 724. Ixxxviii Introduction. in 1806, to order the admeasurement of dower of lands within their county, upon the application of the widow, the heirs or the guardians of minors;^ in 1807, to exercise powers as extensive as the court of probates, in ordering sale of lands for the payment of debts f in 1810, to order the mortgaging or leasing of the land of testators or intestates for the payment of debts, where any infants were interested; and all these laws, whether relating to the surrogates or to the court of probates, were incorporated in one general act in the revision of 1813, in which act are also embraced some other general powers, such as compelling the pro- duction of wills, documents, or writings, the attendance of wit- nesses, and the power of punishing for contempt; and, by an act passed in the same year, they were authorized to complete the unfinished business that might be left by their predecessor.^ In 1819, they were empowered to confirm sales of real estate ordered by them for the payment of debts, and to direct convey- ances to be made by executors or administrators;* and in 1821, to institute an inquiry respecting the personal estate of intestates not delivered to the public administrator, or not accounted for in a lawful and satisfactory manner by the person into whose hands it was supposed to have fallen. By the act passed in 1823, the court of probates was abolished. Its appellative jurisdiction on appeal from surrogates was trans- ferred to the court of chancery, and whatever other jurisdiction it possessed was by this act vested in that court. ° From 1823 to the passage of the Revised Statutes, the only acts of a general character relating to sun-ogates were acts directing them to record all letters testamentary and of administration, all appointments of guardians, and all orders and decrees upon the sales of real estate made by themselves or their predecessors.* It will be seen, as the result of this lengthened examination, that the powers conferred upon surrogates were, from the begin- ning, carefully einumerated in the commission under which they were first appointed, and by subsequent legislative acts ; that what was not granted to them 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 intes- 1 Id. 316. 4 Laws of 1819, 214. 2 5 Id. 138. 5 Laws of 1823. 3 Laws of 1813, 139. 6 Laws of 1828, 136. Inteoduction. Ixxxix tacy was transferred 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 administrators to ac- count 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 adminis- tration of estates, declared in their reports and notes,^ that their principal object was " to adapt the written law to the actual exist- ing law, and where that was settled, to express it in intelligible language, and to incorporate provisions which should terminate the uncertainty that now prevails over a large part of the sub- ject." Their revision, as adopted, formed almost a codification of the then existing law and practice of surrogates' courts. 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 surrogates' courts," commonly known by practitioners in these courts as the act of 1837 ; and the extent of the changes which it made in the system prescribed by the Revised Statutes is indicated by the fact that its seventy-seven sec- tions 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 reorganized, in consequence of constitutional changes made by the Constitution 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 legislature, but these changes have been made to remedy 1 Revisers' Notes, 5 Edm. Stat. 622. xc Inteoductioit. some supposed special defects, and without any reference to the system as a whole, until the present codification effected in 1880. The confusion resulting from this kind of fragmentary legisla- tion, 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 commissioners of the code, and had the especial attention of the late Surrogate Bradfoed. This statute was in- tended 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 l^Tew York, prepared by Messrs. Field, Notes, and Beadfoed, the commissioners of the codes, and published in 1862. The pro- posed 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 surrogates' courts, etc., went into effect on the first day of September, 1880, and, as was to be expected, has given rise to many questions of construction. But it is matter for con- gratulation that simplicity and uniformity have succeeded the obscurity and often the contradiction of the former statutes relat- ing to proceedings in these courts. It will be observed that the new legislation has left the jurisdic- tion 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 im- plied 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. CHAPTER I CONSTITUTION AND ORGANIZATION OF SURRO- GATES' COURTS. TITLE FIEST. THE COTJET, AND THE StJBEOGATE. 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' Courts, or the Court of the Ordinary. " The ordinary " was the technical term adopted by the English law to designate the bishop of a diocese, when sitting as an ecclesiastical tribiinal in the administration of the ordinary temporal jurisdiction of his see; his subordinate, or deputy, was called a surrogate, to indicate that he exercised a delegated power. In the State of I^ew York, the courts which, after some intermediate changes, have succeeded to the characteristic juris- diction of the ordinary, respecting probate and administration, are still termed Surrogates' Courts.^ § 1. Creation of the court — The Constitution of 1846, which remodeled the whole judicial organization of the State, super- seded the County Courts of Common Pleas and the Surrogates' Courts, which theretofore existed, and provided for the election of a county judge in each coimty, except that of iN'ew York, and made it his duty to hold the County Court, and also to perform the duties of the office of surrogate. Power was reserved, how- ever, to each county^ having over 40,000 population, to determine, from time to time, whether they would have a separate officer to perform the duties of surrogate; and where such an officer was elected, the county judge was relieved from service in the Sur- rogate's Court, except when called upon in an exigency, as here- iCo. Civ. Proc, § 2; Const., art. 6 6 (of 1869), § 15; art, 6 (of 1894), (of 1869), § 27. § 15; L. 1847, e. 276, § 8; L. 1871, c. 2 Const., art. 6 (of 1846), § 14; art. 859, §§ 2, 3. § 2. Oeganizatiost of Sukeogates' Couets. 3 after stated. The growth of judicial business has been such, that in thirty-one of the sixty-one counties of the State this course has been adopted, and a distinct office of surrogate created.^ The Constitution also provides that the Legislature may, on application of the board of supervisors of any county, provide for the election of local officers, not exceeding two in any county, to exercise the duties of surrogate or of county judge respectively.^ On the other hand, provision has been made for discontinuing the separate office of surrogate, in any county where it has been created, and merging it again in the office of county judge, by a resolution of the board of supervisors, when the office of county judge is vacant, to the effect that thereafter there shall be no such separate officer, and thereupon the office is to be deemed abolished from the time the office of county judge is filled.^ The surrogate is elected by the people, holding office six years f except in JSTew York county, where, since 1890, the term of office is fourteen years.^ He is a local officer, and, except in vacation month,* is confined, in the execution of his duties, to the county for which he is elected, although his process may run throughout the State; and he must reside in the county for which he is elected.^ § 2. Surrogate's Court of New York county — The Surrogate's Court of the county of New York is recognized by the Constitu- tion of 1846 as a then existing court, and is declared to remain, until otherwise directed by the Legislature, with its then exist- ing powers and jurisdiction. Hence the office of surrogate of New York county is not held under the Constitution, but is a local office established especially for that county under pre-existing laws, but recognized and continued by section 12 of article 14 of the Constitution. ■'*' By the New York City Consolidation Act of 1882,^^ so called, the special and local laws affecting public in- 3 See as to Steuben county, L. 1883, tl. 1890, c. 329; L. 1892, c. 642, § 1. c. 309. 8 Co. Civ. Proc, § 2505, as amended 4 Const., art. 6 (of 1846), § 15; art. 1881. 6 (of 1869), § 16; art. 6 (of 1894), 9 1 R. S. 101, § 11; L. 1892, e. 618, § 16. § 3. B L. 1871, c. 859, § 6. As to Niagara 10 People v. Carr, 86 N. Y. 512, county, see L. 1894, c. 109. affg. 25 Hun, 325. 6L. 1871, u. 859, § 5; L. 1892, c. 686, " L. 1882, e. 410. By this statute § 220. An election to fill a vacancy certain of the incorporated acts are before expiration of term, in counties reproduced in the exact language of other than New York and Kings, is to their originals, others are slightly be for full term of six years (L. 1886, modified; but it was not the intention c. 164) ; and not merely for the unex- of the Legislature, as declared by the pired term (People v. Townsend, 102 act itself, to make anv new enact- N, Y. 430.) ment, or to repeal, modify, amend, or 3 Oeoanization of Sdkeogates' Couets. §§ 3, 4. terests in New York city were brought together in a single statute ; among which special and local laws are those relating to the surro- gate and the Surrogate's Court of that city and county. ^^ Since January 1, 1893, the Surrogates' Court of the city and county of New York consists of two surrogates. By L. 1892, c. 642, provision was made for the election of an additional sur- rogate for New York county; and such officer was accordingly elected in November, 1892. His official designation is that of Surrogate, the word additional being no part of his title. "All the powers conferred by law upon the surrogate of the city and county of New York may be exercised by either of the surrogates of said city and county." ^* §3. In new or altered counties. — In case of the erection of a new county or the transfer of territory from one county to another, provision is made for the creation of a Surrogate's Court for the new county.^* Where a special proceeding is pending in a Surro- gate's Court, whose jurisdiction to entertain the same is taken away, or in consequence of the erection of a new county, or alter- ing the territorial limits of a county, it must be transferred by order of the court in which it is pending, to the Surrogate's Court having jurisdiction ; and the latter court has the same jurisdiction, power, and authority with respect thereto, which the former court would have had, if the territorial limits of its county had not been changed.-'^ § 4. Official designations — The separate officer elected to per- form the duties of the office of surrogate, is, by the present Consti- tution, expressly denominated the surrogate; and the same desig- nation has been conferred upon him by statute.-'® Where the supersede the substance of any pro- 14 Co. Civ. Proe., § 2479. This pro- visions of the incorporated acts vision of the Code is substantially the {§ 2143). same as L. 1870, e. 20, § 1 (amending 12 Id., § 1178. This act, so far as it L. 1843, c. 177, § 4), and section 2 of relates to surrogates and their courts, the act of 1870. See Matter of Me- was not repealed by the Greater New Guiness, 13 Misc. 714; 35 N. Y. Supp. York Charter. See L. 1897, i;. 378, 820. §§ 1608, 1609; L. 1901, e. 466. w Co. Civ. Proc, § 2480. The juris- ts Co. Civ. Proc, § 2504, amended diction of the surrogate of West- 1893. Vacancies occurring otherwise Chester county remains unaffected by than by expiration of the official term, the annexation of a part of the county by the effluxion of time, or by the dis- to the city of New York, by virtue of ability of age, the office is to be filled L. 1895, c. 934. (Matter of McKeon, in the same manner as vacancies in 20 Misc. 464; 58 N. Y. Supp. 589.) the office of a Supreme Court judge, 16 L. 1847, c. 276, § 14. The some- under section 9 of article 6 of the Con- what obscure provision of L. 1871. r. stitution (L. 1802, c. 642, § 2). See 8.59. § 7, that the "separate officprs art. 6 (Const. 1894), §§4, 15. elected to perform the duties of the § 5. Okganization of Sueeogates' Couets. 4 county judge is also surrogate, lie is to be designated, when re- ferred to in that capacity, the surrogate of the county, without any addition referring to his office as county judge. -^^ Other of- ficers who exercise the power of a surrogate, in certain contingen- cies hereafter referred to, are designated " special surrogates " and " acting surrogates." Pursuant to the permission granted by the Constitution, the Legislature has provided for the election, in cer- tain counties, of " local officers " to discharge the duties of surro- gate, or of county judge and surrogate, in cases of the inability, or a vacancy in the office, of the latter. The statute provides that such an officer, so elected, may, when acting as surrogate, be desig- nated the " special surrogate " of his county.-'* Where an officer, other than the surrogate, e. g., the district attorney, acts as sur- rogate in a case prescribed by law, he must be designated by his official title, with the addition of the words, " and acting surro- gate." ^^ Where the Supreme Court, in New York and Kings counties, exercises the jurisdiction of surrogate, the proceedings are entitled in the oourt,^" and, of course, no special designation is added. There remains the case of temporary appointment, by a board of supervisors, of a person to act as surrogate where that officer is disabled. ^^ As such a person is not " an officer " who " acts as surrogate," the statute appears to make no provision for an official designation in his case; so that, doubtless, his proper title, while he continues to act, is " surrogate " without additions. The language of the Code, which requires a petition in some in- stances to be presented to the " Surrogate's Court," and then con- fers power upon " the surrogate " to act upon the petition, while the decree or order made is spoken of as that of the Surrogate's Court, does not, we think, indicate that a distinction was intended to be made between the powers of a surrogate, and the powers of a court, at least none such as could raise a question of jurisdiction. § 5. Seal of court.— The Surrogate's Court has a seal, of which the surrogate has charge.^^ A description of the seal is required to be deposited with the secretary of state, and provision is made by statute for a new seal when the old one is unfit for use."^ When- oflfiee of surrogate under the fifteenth 18 Co. Civ. Proe., § 2483. and sixteenth sections of article 6 of 20 Co. Civ. Proc, § 2490, aa amended the Constitution, shall be denominated 1895. the surrogates of the respective eoun- 21 Co. Civ. Proc, § 2492. ties," was repealed by L. 1880, c. 245. 22 Co. Civ. Proc, § 2507. IT Co. Civ. Proc, 5 2483. 23 Co. Civ. Proc, §§ 27, 30. 18 Co. Civ. Proc, § 2483; L. 1851, o. 108, § 1. 5 Organization of Sueeogates' Courts. § 6. ever any other officer acts as surrogate, he uses the surrogate's seal. We have already seen that where the proceeding is in the Supreme Court, the seal of that court is to be used. § 6. Time and place of holding court — The Surrogate's Court is always open for the transaction of any business within its powers and jurisdiction.^* There are no stated terms in these courts ;^^ except in iN^ew York county, the surrogates of which are required, from time to time, to appoint times of holding terms of the Surro- gate's Court for the trial of probate proceedings and for hearing of motions and other chamber business, prescribing the duration of such terms and assigning the surrogate to preside and attend. Two or more terms may be appointed to be held at the same time ; the term held at chambers is to dispose of all business except con- tested probate proceedings, which latter are to be disposed of at a trial term. Provision is made for the publication of the appoint- ments of terms and assignments of surrogates to hold them.^® In counties in which the county judge is also surrogate, the Surro- gate's Court is held at the times and places of holding the County Court.^^ The statute further provides that, unless prevented by sickness or other unavoidable casualty, the surrogate must attend at his office on Monday of each week, except during the month of August, or, where Monday is a public holiday, on the following- Tuesday, to execute the duties imposed upon him. " But the surro- gate of any county may, by an instrument in writing, under his hand, filed in the office of the clerk of the county, at least twenty days before the first of January, in any year, designate a day of the week, other than Monday, on which he will attend at his office, or a month, other than August, during which he will be absent therefrom, or both, during that year ; and where the county judge is also surrogate, he is not required to attend at his office on any day when the County Court or Court of Sessions is sitting. The surrogate must also execute the duties of his office, at such other times and places, within his county, as the public convenience re- quires." ^ Any surrogate, during his designated vacation-month, " may sign decrees, letters testamentary, of administration and guardianship and orders, wherever he shall be passing such vaca- tion within the State." ^ 24 Co. Civ. Proc, § 2504; Gilman v. 28 Co. Civ. Proc, § 2505; People v. Oilman, 1 Redf . 354 ; 38 Barb. 364. Supervisors, etc., 34 Hun, 599. 25 Western v. Romaine, 1 Bradf. 37. 29 Co. Civ. Proe., § 2505, as amended 26 Co. Civ. Proc, § 2504, as amended 1892. Before this amendment, only 1893. the surrogate of New York could so 27 Co. Civ. Proc, § 2506. sign outside his own county. § 7. Okganizatiok of Sukeogates' Couets. 6 TITLE SECOISTD. DISQUALIFICATIONS OF SURKOGATE. § 7. General disqualifications — The surrogate is a judge *" of a court of record.^^ Besides his disability to act, by reason of sick- ness, absence, or lunacy, he is subject to the general disqualifica- tions of a judicial officer.^^ Accordingly it has been held that a surrogate is disqualified to make an order for the sale of a testator's real estate to satisfy a judgment recovered against the executors, in an action in which he was the creditor's attorney, although the relation of attorney and client had ceased more than four years before the application.^^ A surrogate cannot, of course, act as an attorney or counselor in his own court, or in a cause originating therein, or in a special proceeding which has been before him in his ofiicial character. !N^or can his law partner or any person connected in law business with him, practice or act as attorney or counselor in his court or in a cause originating therein. He is not allowed to demand or receive any compensation for giving advice in a matter before him, or which he has reason to believe will be brought before him for decision, or for preparing a paper or other proceeding relating to such a matter.^* 30 Co. Civ. Proc, § 3343, subd. 3. himself for such services performed as But he is not a " justice or judge " attorney, and, after exercising such within the constitutional provision jurisdiction, continued to act as at- that a judge or justice cannot hold tomey of record in litigations brought office " longer than until and includ- by the executor in adjoining counties, ing the last day of December next was held to be disqualified, and his after he shall be seventy years of decree passing the account declared age." (People V. Carr, 100 N. Y. 236.) void. (Wigand v. Dejonge, 8 Abb. Query, whether this is so with regard N. C. 260.) A surrogate with whom, to the surrogates of New York county, pending a probate contest, the funds whose " disability of ape " is pro- of the estate are deposited bv stipula - vided for by L. 1892, c. 642, § 2. tion of the parties to abide the result, 31 Co. Civ. Proc, § 2, subd. 20. has not a disqualifying interest. (Mat- 32 Co. Civ. Proc, § 46, as amended ter of Hancock, 91 N. Y. 284.) He is 1883. not disqualified to pass upon the pro- 33 Darling v. Pierce, 15 Hun, 542. bate of a will by the fact of a gift See Matter of Ryers, 72' N. Y. 1 ; Mat- to a church of which he is warden, ter of Manufacturing Co., 77 id. 101. and, it seems, he is competent to A surrogate who, before his election, entertain probate proceedings though had given general legal advice to an his wife is a legatee, where her legacy executor as to his rights and duties as fails by reason of her being a sub- such, and performed other legal ser- scribing witness. (Hopkins v. Lane, vices for him, and appeared as his 6 Dem. 12.) See Matter of Van attorney in foreclosure suits brought Wagonen, 69 Hun, 365. by him as such, and who, after his 34 Co. Civ, Proc, §§ 49, 50, 51. As election, assumed jurisdiction as sur- Purroeates' Courts were not courts of rogate over the executor, and settled record until 1877, it may be a ques- the accounts, embracing payments to tion whether the surrogates of New 7 OKGAIflZATIO:^" OF SuKEOGATES' CoUETS. §§ 8, 9, §8. Particular disqualification — The statute particularly pro- vides that a surrogate shall not be counsel, solicitor, or attorney in a civil action or special proceeding, for or against any executor, administrator, temporary administrator, testamentary trustee, guardian, or infant, over whom or whose estate or accounts he could have any jurisdiction by law.^^ So he is disqualified from acting upon an application for probate or for letters testamentary, or let- ters of administration, in any case where he is, or claims to be, an heir or one of the next of kin to the decedent, or a devisee or legatee of any part of the estate ; or, where he is a subscribing wit- ness, or is necessarily examined or to be examined as a witness, to any written or nuncupative will ; or, where he is named as exec- utor, trustee, or guardian, in any will or deed of appointment in- volved in the matter.*® Beyond these particularly defined disquali- fications the surrogate has a discretion whether or not he will act in a particular case, and, in general, the appellate court will not interfere with the exercise of that discretion.*^ § 9. Waiver of disqualification. — The last above-mentioned dis- qualifications cannot be waived ; but " an objection to the power of a surrogate to act, based upon a disqualification established by special provision of law, other than one of those enumerated in the last section (2496), is waived by an adult party to a special pro- ceeding before him, unless it is taken at or before the joinder of issue by that party; or, where an issue in writing is not framed, at or before the submission of the matter or question to the surro- gate." '« York, Kings, and Erie counties were amended L. 1830, c. 320, § 19. See subject to the constitutional provision Cornwell v. Wooley, 1 Abb. Ct. App. adopted in 1869 {art. 6, § 21), to the Dec. 441. effect that no "judge of a court of 37 In Matter of Newcombe (45 St. record in the cities of New York, Rep. 806; 18 N. Y. Sunp. 549), a party- Brooklyn, or Buffalo shall practice as filing objections to the probate of a an attorney or counselor in any court will, moved to have the matter sent of record in this State, or act as to the Common Pleas for trial before referee." But by the present Con- a jury, upon the allegation that the stitution (art. 6, § 20, adopted in surrogate was a personal friend of 1894) , no surrogate " hereafter elected decedent and of the principal bene- in a county having a population ex- ficiary under the will; that the trial ceeding 120,000 " may practice as an would require the examination of attorney or counselor in any court of many witnesses; that the testimony record in the State, or act as referee, would be conflicting, and consequently The surrogate of Monroe county is ex- a jury trial was necessary. Held, pressly disqualified by Co. Civ. Proc, that the surrogate's denial of the mo- § 2495, as amended 1893. tion was a matter of discretion, with As to the surrogate of Westchester which the general term would not in- countv, see Brown v. Brown, 64 App. terfere. Div. 544, 72 N. Y. Supp. 309. 38 Co. Civ. Proc. § 2497, substan- 35 Co. Civ. Proc, § 2495. tiallv following 2 R. S. 276; L. 1844, 36 Co. Civ. Proc, § 2496, following c 300, § 6. substantially 2 R. S. 79, § 48, as §§ 10, 11. OEGASriZATIOIir OF SUKKOGATES' COUETS. TITLE THIRD. SUBSTITUTES FOE SUEilOGATE, IN CASE OF VACANCY IN OFFICE, DIS- ABILITY, OB DISQUALIFICATION. § 10. Vacancy or disability in counties other than New York The Code provides that " where, in any county, except New York, the office of surrogate is vacant ; or the surrogate is disabled, by rea- son of sickness, absence, or lunacy; and special provision is not made by law for the discharge of the duties of his office in that contingency, the duties of his office must be discharged, until the vacancy is filled or the disability ceases, as follows: 1. By the special surrogate. 2. If there is no special surrogate, or he is in like manner disabled, or is precluded or disqualified, by the special county judge.^* 3. If there is no special county judge, or he is in like manner disabled, or is precluded or disqualified, by the county judge. 4. If there is no county judge, or he is in like manner disabled, or is precluded or disqualified, by the district attorney." ^^ It is also provided, that " in any county, except New York, if the surrogate is disabled, by reason of sickness, and there is no special surrogate, or special county judge of the same county, the board of supervisors may, in its discretion, appoint a suitable per- son, to act as surrogate, until the surrogate's disability ceases ; or until a special surrogate or a special county judge is elected or appointed." *^ §11. Disqualification in counties other than New York. — In case the surrogate of any county, except New York, is precluded or disqualified from acting with respect to any particular matter, his jurisdiction and powers with respect to that matter vest in the several officers designated above, in the order named. " If there is no such officer qualified 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 an adjoining county, other than New York, to act in his place in the particular matter. Thereupon the surrogate so designated has, 39 See Matter of Frye, 48 St. Rep. contempt may issue. (People v. Petty, 572; 20 N. Y. SupT). 588. 32 Hun, 443.) 40 Co. Civ. Proc, § 2484. " Before 41 Co. Civ. Proc, § 2492, as amended such an officer is entitled to act, proof 1893. "A person so appointed must, of his authority to act, as prescribed before entering upon the execution of in section 2487, must be made." (Id.) the duties of his office, take and file For definition of "disability," see Co. an oath of office, and give an official Civ. Proc, § 3343, subd. 15. The dis- bond, as prescribed by law, with re- trict attorney so acting may issue speet to a person elected to the office citations upon which attachments for of surrogate," (Id.) 9 Organization of Surrogates' Courts. §§ 12, 13. with respect to that matter, all the jurisdiction and powers of the surrogate making the designation, and may exercise the same in either county." ^ § 12. Vacancy, disability, or disqualification in New York county. — Special provision is made for cases of vacancy in the office of surrogate in the county of New York, and for cases of the disability or disqualification of the surrogates of that county. The Supreme Court, at a special term thereof, must exercise all the powers and jurisdiction of the Surrogate's Court where the surrogate is pre- cluded or disqualified from acting, with respect to a particular matter. Where the office of surrogate is vacant, or the surrogate is disabled by reason of sickness, absence, or lunacy, it must exer- cise all the powers and jurisdiction of that court until the vacancy is filled, or the disability ceases, as the case may be.** § 13. Vacancy, etc., in Kings county — Since the amendments of 1893, sections 2485, 2486, 2487, and 2492 are no longer ap- plicable to the surrogate of Kings county; and vacancies in the office, and the disability of the surrogate to discharge his official duties, are provided for under section 2484, applicable to surro- gates of other counties except New York. It is provided, how- ever, in the case of Kings county, that in any proceeding in its Surrogate's Court, before either of the officers authorized by sec- tion 2484 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 cause to the Supreme Court, to be heard and decided at a special term thereof, held in such county.** 42 Oo. Civ. Proc, § 2485, as amended e. 859, § 8), Holmes v. Smith. 3 Hun, 1893. 413; 6 T. & C. 57. Chapter 311 of L. 43 Co. Civ. Proc, § 2486, as amended 1879 is to the same effect as this sec- 1895. Prior to 1896 (L. 1895, c. 946) tion of the Code. the Court of Common Pleas was re- 44 Co. Civ. Proc, § 2484, as amended quired to exercise the powers of the 1893; which is an adoption of the surrogate, in case of his disqualifiea- provision of L. 1884, c 490, §§ 1, 2, 4. tion, whether the proceeding was com- "A certified copy of such order, to- menced before or after the adoption gether with the appropriate certificate of the Code. (Matter of Oilman, 42 or certificates of the authority of the St. Rep. 474; 17 N. Y. Supp. 494.) Be- officer to act as surrogate, shall be fore the adoption of the eighteenth sufficient and conclusive evidence of chapter of the Code of Civil Procedure, the jurisdiction and authority of the the Supreme Court might issue a com- Supreme Court in such matter or mission empowering a suitable person cause. After a final order or decree to act as surrogate in case there was is made in the matter or cause so no person capable of acting. (L. 1830, transferred to the Supreme Court, the c 320, § 21. And see Matter of Hatha- court shall direct the papers to be re- way, 9 Hun, 79.) See, for a construe- turned and filed, and transcripts of tion of the former statute (L. 1871, all orders and decrees made thereinto §§ 14, 15. Oeganization of Siteeogates' Ootjets. 10 § 14. Proof of authority of other officer or court to act. — In order to invest another officer, or, in New York county, the Su- preme Court, with the jurisdiction and powers of a surrogate, his or its authority must be proved in one of the following modes : " 1. Where the surrogate is disqualified, or precluded from act- ing in a particular matter, that fact may be proved by the surro- gate's certificate thereof ; or, except as otherwise prescribed in sec- tion 2485 (above), by affidavit or oral testimony. " 2. The fact that the surrogate is so disqualified or precluded, or that he is disabled, or that the office is vacant, and also the au- thority of the officer, or of the court as the case may be, to act in his place, may be proved, and are deemed conclusively established, by an order of a justice of the Supreme Court of the judicial dis- trict embracing the county. After such an order is made, the surrogate shall not make the certificate specified in section 2485 (above), and if such a certificate has been theretofore made and filed, the powers and duties of the surrogate therein designated, as specified in that section, thenceforth cease." *^ In the case of a transfer of a proceeding to the Supreme Court, by an officer acting as surrogate of Kings county, his order, as we have seen above, is conclusive evidence of the authority and juris- diction of the Supreme Court. § 15. Supreme Court justice's appointment An order under the second subdivision (above) may be made upon or without notice, as the justice thinks proper. The order itself must recite the cause of the making thereof; it must designate the officer or court, empowered to discharge the duties of the office of surrogate ; and, if it relates to a particular matter only, it must designate that matter. It may, In the discretion of the justice, require an officer to give security for the due discharge of his duties therein. Where the office of surrogate is vacant, or the surrogate is disabled by rea- son of lunacy, the attorney-general, if directed by the governor, must, or the district attorney, upon his own motion, may, apply for the order ; and a Supreme Court justice of the judicial district embracing the county must grant it upon his application. The justice may also grant the order, upon the application of a party, be recorded in the surrogate's oflBceof 1895. The making of the certificate such county; and when so filed and by the surrogate, or obtaining the recorded, they shall have the same order, as provided in sections 2487, effect as if they were filed and re- 2488, is a condition precedent to the corded in a case pending in the Sur- right of another officer to act in the roeate'a Court of such county." place of the surrogate, under section 45 Co. Civ. Proc, § 2487, as amended 2484. (Matter of Tyler, 60 Hun, 566.) 11 Oeqanizatiois^ of Sueeogates' Coxjets. §§ 16-18. or a person about to become a party, to any special proceeding in the Surrogate's Court. Where the surrogate is sick or absent, the granting of the order rests in the discretion of the justice, and its effect may be qualified, as the justice thinks proper.*® § 16. Proceedings in Supreme Court. — Where, in the foregoing cases, a special proceeding, which is cognizable before a surrogate, has been brought in the Supreme Court, it must be entitled in that court, and the papers therein must be filed or recorded, as the case may be, and the issues must be tried, as in an action brought in that court. Where a seal is necessary, the seal of the court in which the special proceeding is pending must be used; and the clerk of that court must sign each record which is required to be signed by the surrogate or the clerk of the Surrogate's Court. The issuing of a citation may be directed, and any order inter- mediate the citation and the decree may be made, by a judge of the court.*'' § 17. Revoking authority of appointee. — The order of appoint- ment made by a Supreme Court justice as above or by the board of supervisors under section 2492, may be revoked by a Supreme Court justice for any cause (except a vacancy in the office of sur- rogate), without prejudice to any proceedings theretofore taken by virtue of the order, or of the appointment, upon proof that the order or the appointment was " improvidently made, or that the cause of making it has become inoperative. Such an order of appointment, made upon the ground that the surrogate's office is vacant, is superseded without any formal revocation, by the filling of the vacancy. After the order or appointment is revoked, or the vacancy is filled, as the case may be, the unfinished business, in any proceedings taken by virtue of the order or appointment, must be transferred to, and may be completed by, the surrogate, in the same manner and with like effect, as where a new surrogate completes the unfinished business of his predecessor." *^ § 18. Remitting proceedings to Surrogate's Court. — The court entertaining any special proceeding ordinarily cognizable by a sur- rogate, may, at any time, in its discretion, upon being satisfied that the reason for the exercise of its powers and jurisdiction has ceased to operate, make an order to transfer to the Surrogate's Court any 4« Co. Civ. Proc, § 2488, as amended 1889. See Co. Civ. Proe., § 2481, 1889. 8ubds. 8 and 9; Matter of Martinhofif, 4TCo. Civ. Proc., i 2490, as amended 4 Eedf. 286; People v. Shaw, 3 Hun, 1895. 272; affd., 63N. y. 36. ■48 Co. Civ. Proc, § 2489, as amended §§ 19, 20. Organization of Surkogates' Couets. 12 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 appointment, the surrogate must cause entries to be made in the proper book in his office, referring to all the papers filed, and orders entered, or other proceedings taken, in the Supreme Court ; and he may cause copies of any of the orders or papers to be made, and recorded or filed in his office, at the expense of the county.*® § 19. Eecording proceedings taken before special officer, etc. — All acts and proceedings taken by, before, or by authority of, an officer or a person temporarily acting as surrogate of any county, must be recorded, or the proper minutes thereof must be entered, in the books of the Surrogate's Court, the same as if done or taken by, before, or by authority of, the surrogate of the county ; and the officer or person so acting, or the clerk of the Surrogate's Court, must sign the certificate of probate and any letters so issued, and must certify the record thereof in the book.'"'* TITLE FOURTH. SUEKOGATES' CLEEKS AND OTHER OFFICEES OP THE COUET, THEIB POWERS AND DUTIES. § 20. Appointment of office clerks — Each surrogate may ap- point, and at his pleasure remove, clerks for his office, and he may also appoint " the clerh of the Surrogate's Court." As to his office clerks, he may appoint as many, to be paid by the county, as the board of supervisors of his county authorizes him to appoint. The board of supervisors must fix the compensation of the clerk or clerks so appointed, and may authorize them, or either of them, to receive, for their or his own use, the legal fees for making copies of any record or paper in the office of the surrogate. A surrogate may appoint, and at pleasure remove, as many additional clerks, to be paid by him, as he thinks proper. ^^ In New York county, the court may appoint, and at pleasure remove, all clerks, officers, attendants, and employees in his office, or connected with his court, subject to the revision of the board of estimate and apportion- ment as to the number and duties of all such clerks, etc., with their respective salaries to be paid by the county. The surrogate may 49 Co. Civ. Proc, § 2491, as amended 60 Co. Civ. Proc, | 2494. 1895. BlCo. Civ. Proc, § 2508. 13 Obganization of Sukkogates' Coukts. § 21. require from his assistants security for tke faithful performance of their duties.^^ § 21. The clerk of the court — A surrogate may appoint a clerk employed in his office to be " the clerk of the Surrogate's Court." The appointment must be by a written order filed and recorded in his office, which he may in like manner revoke at pleasure. Such clerk is authorized to exercise, concurrently with the surrogate, the following powers of the surrogate: (1) He may certify and sign as clerk of the court, any of the records of the court, includ- ing a certificate of probate (see Code Civ. Proc, § 2629), and the records and papers left uncompleted or unsigned by the surro- gate's predecessor. (2) He may issue any mandate, to which a party is entitled as of course, either unconditionally, or upon the filing of any paper, and may sign, as clerk of the court, and afiix the seal of the court to, any letters or mandate issued from the court. (3) He may certify, in the manner prescribed by the ninth chapter of the Code of Civil Procedure, a copy of any paper re- quired or permitted by law to be filed or recorded in the surro- gate's office. (4) He may adjourn to a definite time, not exceed- ing thirty days, any matter, when the surrogate is absent from his office, or unable, by reason of other engagements, to attend to the same. (5) He may take the acknowledgment or proof of any in- strument to be used or filed in the court of which he is clerk.^^ In New York county, the clerk of the Surrogate's Court may, with the approval of the surrogates, authorize and deputize, one or more of the other clerks, employed in the Surrogate's Court of that county, to sign his name, and exercise such of the other powers conferred upon him by section 2509, as he shall designate. °* The surrogate, however, may prohibit the clerk from exercising any of the foregoing powers, but the prohibition will not affect the validity of any act of the clerk done in disregard of the prohibi- tion.^^ A surrogate's clerk cannot file an unsigned decree or other- 52 L. 1884, c. 530; L. 1892, c. 642, acting business; and the surrogate is § 4, superseding Co. Civ. Proc, expressly prohibited from allowing g§ 2502, 2508, so far as they relate any person not duly appointed clerk, to the county of New York. See officer, or employee, to have any spe- also §§ 1180, 1189, 1191, and 1204 of cial privileges in or about the office, the Consolidation Act. In New York (L. 1884, c. 530, § 10.) county, no person not officially con- 53 Co. Civ. Proc, § 2509, as amended nected with the surrogate's office or 1900. court is allowed permanently to have 54 Id. or occupy any desk or position in the 55 Co. Civ. Proc, § 2509, as amended ofRce or court as his place of trans- 1893. §§ 22, 23. Oeganization of Sueeogates' Courts. 14 wise make it valid.^^ The clerk of the court has a general power to take and certify any oath or affidavit required or authorized by law, except an oath to a juror or a witness upon a trial, an oath of office, and an oath required to be taken before a particular officer.^^ He may also administer oaths, take affidavits and the proof and acknowledgment of deeds, and all other instruments in writing, and certify the same, with like force and effect as if taken and certified by a county judge.^^ The clerk of the Surrogate's Court, in addition to the power*^ enumerated above, may exercise concurrently with the surrogate of the county, the following powers of the surrogate : "~0n the re- turn of a citation issued from such Surrogate's Court on a petition for the probate of a will, where no objection to the same is filed ; or, where all the persons entitled to be cited, sign and verify the petition, or personally, or by attorney, appear on the probate thereof, cause the witnesses to the will to be examined before him. Such examinations must be reduced to writing, and for such purpose, he is authorized to administer and certify oaths and affirmations in such cases in the same manner and with the same effect as if administered and certified by the surrogate." ^* § 22. Clerk's disabilities — The clerk or other person employed in any capacity, in a surrogate's office, shall not act as appraiser, as attorney or counsel, or as referee or special guardian, in any matter before the surrogate.^" § 23. Surrogate liable for clerk's acts — The surrogate is de- clared to be liable, as well as the sureties in his official bond, for any act of the clerk, during the surrogate's term of office, as if the act was performed by the surrogate. To indemnify him against the liability, he may take security from the clerk.*^ As to the surrogate's bond, and the prosecution thereof, see title sixth of this chapter. 56McNaughton v. Chave, 5 Abb. N. 1893, formerly section 2511. See Id.. C. 225; Roderigas v. East River Sav- §§ 61, 90. It has been held, though ings Bank, 76 N. Y. 316. erroneously, we think, that where all 57 Co. Civ. Proc, § 842. the parties consent, a clerk of the 58 L. 1900, c. 510, amending L. 1884, court may be appointed referee, u. 309. (Thome's Estate, 4 Law Bull. 48) 69 Co. Civ. Proc, § 2510, adopted in The official stenographer of the court 1893 from L. 1885, c. 367. This see- has not such a relation to the court tion originally applied solely to Kings as to disqualify him from acting as county, but by L. 1894, c. 211, the referee. (Benedict v. Cooper, 3 Dem. additional powers conferred upon the 362.) clerk of the Surrogate's Court in that 61 Co. Civ. Proc, § 2511, as amended county were extended to the clerks 1893, formerly section 2510. See L. of Surrogates' Courts in every county. 1884, c 530, § 5. 60 Co. Civ. Proc, § 2500, as amended 15 Oeganization of Sueeogates' Cotjets. §§ 24, 25. TITLE FIFTH. RECOBOaS TO BE KEPT BY THE SUEEOGATE. § 24. Books of surrogate.— Each surrogate is required to pro- vide (at the expense of the county) and keep a record-book of wills, etc. ; a record-book of letters testamentary and letters of adminis- tration, issued out of his coiirt ; a record-book of every decree whereby the account of an executor, administrator, trustee, or guardian is settled ; a book, containing a minute of every paper filed, or other proceeding taken, relating to the disposition of the real property of a decedent, and a record of every order or decree made thereon ; a book recording every decree or order, the record of which is not required to be kept elsewhere, together with a memorandum of each execution issued, and of the satisfaction of each decree recorded therein ; a book recording all letters of guard- ianship, and a book of fees and disbursements.®^ To each of the books so kept must be attached an alphabetical index, referring to the page of the book where each subject may be found. Each decree revoking the probate of a will, or revoking or otherwise affecting letters testamentary, letters of administration, or letters of guardianship, or suspending or removing a testamentary trus- tee, 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 reference to the book and page where the subsequent decree is recorded. The books so kept pertain to the surrogate's office, and must be open at all reasonable times to the inspection of any person.®^ The statute also provides that there shall be kept a book wherein shall be recorded a statement of all moneys directed, by the order of the surrogate, to be deposited with the county treasurer, or, in the city of New York, with the city chamberlain.®* § 25. Stenographer's notes — The Code provides for the appoint- ment of stenographers,®^ whose duties are to take full stenographic notes of proceedings in which oral proof is given, unless his ser- vices are dispensed with by the surrogate, to write out such notes legibly and at length, and to file them in the surrogate's office.®® The notes so written out are then authenticated by the signature 62C!o. Civ. Proc, § 2498. 65 Co. Civ. Proc, §§ 2512, 2513. For 63 Co. Civ. Proc, § 2499. amount of stenographer's fees, see Co. «4L. 1895, c. 544. Civ. Proc, § 3311, as amended 1891. 66 Co. Civ. Proc, § 2541. §§ 26-28. Oeganizatiojst of Subrogates' Couets. 16 of the stenographer, referee, the surrogate, or the clerk of his court, as the case may be, and, in New York and Kings counties, and in any other county where the supervisors direct, are to be hound at the expense of the county. Upon the record of a decree, in a contested case, a reference is required to be made to the bound volume, and the page of such minutes.®^ § 26. Papers, etc., to be preserved — The surrogate is required to carefully file and preserve in his office, every deposition, affi- davit, petition, report, accoimt, voucher, or other paper, relating to any proceeding in his court ; and to deliver to his successor all the papers and books kept by him.^* § 27. Custody of records — Except in New York and Kings counties, the general charge of the books and records of the office is, by the statute, given to the board of supervisors of each county, who may authorize the surrogate to cause certified copies to be made for public use ; and they are required to do so, whenever, by reason of age or exposure, or any casualty, the same shall be neces- sary for the public service ; and provision is made for determining the necessity for such copying and the payment for the same.*^ TITLE SIXTH. § 28. Surrogate's bond — Within twenty days after notice of his appointment or election, the surrogate must execute to the people of the State, a bond for the application and payment of all moneys and effects that may come into his hands as surrogate. In the city and county of New York, the amount required is $50,000 ; in Kings county, $25,000, and in other counties, $10,000. The bond must be joint and several, with at least two resident free- holders as sureties. It must he acknowledged by all the persons executing it, and the sureties must justify, in the aggregate, in double the penalty of the bond. The county clerk is made the jvidge of the sufficiency of the sureties, and being satisfied of that fact, he must indorse his approval on the bond, and file it in his office, and also record it in the records of deeds. And such record, or a certified copy thereof, is made original evidence of the con- 67 Co. Civ. Proc, § 2543. to furnish certified copies, includes 68 Co. Civ. Proc, § 2500, aa amended surrogates. 1893. Section 961, requiring certain 69 L. 1869, c. 855, § 7. officers to search files and records and 17 OeGxV.MZATIOX Oh- SuilEOGATEs' COUETS. §§29,30. tents of the bond in any action against the surrogate or his sure- ties.'* In like manner, a person appointed, in any county, except iSTew York, to act as surrogate, during the disability of that officer by reason of sickness, absence, or lunacy, or in certain cases of va- cancy, is required, before entering upon the execution of the du- ties of his office, to give an official bond, as prescribed bv law with respect to a person elected to the office of surrogate.^' § 29. Bond of officer acting as surrogate — The former statute,''^ requiring every county judge, special county judge, or other officer authorized to act as surrogate, before entering upon or discharging any of the duties of surrogate, to execute a bond, in the same man- ner and vrith the same conditions as are required of surrogates, has been repealed,^^ and replaced by a provision that the justice of the Supreme Court, of the department embracing the county of the surrogate, may, in his discretion, by his order designating the officer empowered to discharge the duties of the office of sur- rogate, require the officer to give security for the due discharge of his duties therein.''* The nature and form of the security so to be given are left to the court to prescribe. § 30. Liability upon surrogate's bond The surrogate's bond is deemed to be in force and obligatory upon the principal and sureties therein, so long as he continues to discharge the duties of his office, and until his successor is elected and duly qualified.''* But the sureties in the bond are exonerated from all liability by reason thereof, for all acts or omissions of their principal, after he has duly renewed his official bond.''^ Where a surrogate re- ceived from his predecessor a fund in court, and, although in igno- rance of any deficiency, paid orders of his predecessor, as pre- sented to him, until the fund was exhausted, and in so doing paid out to one person moneys belonging to another, he was held per- sonally liable.''^ It was his duty, on entering upon his office, before paying out any portion of the surrogate's fund turned over to him TO 1 R. S. 382, §§ 77, 87, as amended funds in the hands of the latter, as by L. 1871, c. 239, § 1 ; L. 1882, c. 410, surrogate. Included in this fund was § 1178. $2,653.19 belonging to plaintiff. The 71 Co. Civ. Proc, § 2492. surrogate made no attempt to aseer- 72 L. 1858j e. 213. tain to whom the several sums be- 73 L. 1880, c. 245. longed, but paid therefrom various 74 Co. Civ. Proc, § 2488. claims other than plaintiff presented, 75 1 R. S. 120, § 29. until the sum in his hands was re- 76 Id., § 30. duced to $1,400. Held liable to the 77 Disbrow v. Mills, 62 N. Y. 604, plaintiff for the entire sum belonging affg. 4 Sup. Ct. (T. & C.) 682. In that to him. See Matter of Coffin, 36 Hun, case, the surrogate received from his 236. predecessor $7,267.89, as balance of 2 31, 32. Oeganizatioit of Sueeogates' Courts. IS by his predecessor, to ascertain from what sources it was derived and who was entitled thereto. The transfer of the fund should be accompanied with an account showing the estates or persons to whom it belongs, and this he should properly examine and test ; and if he receives the fund without such an account and examina- tion, he incurs the risk of any errors resulting from such neglect. The appropriation to his own use by the surrogate of any county, or other misappropriation, or the withholding by him of any moneys directed by the board of supervisors of the county to be paid for clerk hire, is a misdemeanor.''^ § 31. Application for leave to prosecute bond Where a surro- gate, or an officer acting as surrogate, is guilty of any actionable default or misconduct in his office, the person injured thereby may apply for leave to prosecute the delinquent's official bond.'^ The application may be made to the Supreme Court having jurisdic- tion ;*" and may be made without notice, but in that case, the sur- rogate, or either of his sureties, may apply, upon notice, to vacate an order permitting the applicant to maintain an action, upon any ground showing that it ought not to have been granted.*^ The application must be accompanied with proof, by affidavit, of the default or misconduct complained of, and that satisfaction of the same has not been received ; and with a certified copy of the official bond.«2 § 32. Order for prosecution — Upon such an application, the court must grant an order permitting the applicant to maintain an action upon the bond; which must be brought in the court which granted the order, by the applicant as plaintiff, and it may be maintained, in general, as if the applicant was the obligee named in the bond.^ The same, or any other applicant, may, in like manner, either before or after judgment in the first action, obtain from the court which made the first order, but not from any other court, an order permitting him to maintain another action in the same court, upon the same bond, for another default or miscon- duct ; and any number of such orders may be successively made — neither of the actions so authorized being, in general, affected by the pendency of, or the recovery of judgment in, any other.^ 78 L. 1877, e. 401, § 4. As to surro- 82 Td., § 1880. gate's liability for official acts of the 83 Co. Civ. Proc, § 1881. Formerly clerk of his court, see ante, § 23. the action was reqviired to be brought 70 Co. Civ. Proc, § 1886. in the name of the people. sold., §§ 1880, 1888. 84 Co. Civ. Proc, § 1882. Slid., § 1892. See Matter of Van Eps, 56 N. Y. 599. 19 Organization of Surrogates' Courts. §§ 33-36. § 33. Proof in action on bond — Where the default, by reason of which an application to prosecute the official bond is made, con- sists of the nonpayment of money, the applicant must®^ prove a demand of the money from the surrogate, or that a demand cannot be made with due diligence ; but such proof is not necessary where the applicant has recovered a judgment against the surro- gate.^'^ § 34. Defenses in action on bond — It is a defense by a surety, against whom an action is brought upon a surrogate's official bond, that he, or any other surety or sureties, have been or will be com- pelled, for want of sufficient property of the surrogate, to pay, upon one or more judgments recovered against him or them, upon the same bond, an aggregate amount, exclusive of costs, officers' fees and expenses, equal to the sum for which the defendant is liable by reason of the bond ; and it is a partial defense that the difference between the aggregate amount, so paid or to be paid, and the sum for which the defendant is thus liable, is less than the amount of the plaintiff's demand.*^ § 35. Execution in action on bond — Where an execution is is- sued upon a judgment recovered against the surrogate and any of his sureties, in an action so brought, the plaintiff's attorney must indorse thereon a direction to collect the same, in the first place, out of the property of the surrogate, and, if sufficient property of the surrogate cannot be found, then to collect the deficiency out of the property of the surety or sureties.^* § 36. Apportionment of recovery — If the aggregate amount of the liabilities, which might be so recovered by actions upon the siirrogate's official bond, exceeds the sum for which the sureties are liable, the court must, upon the application of a 'person who has obtained leave' to prosecute the bond, made upon notice to the plaintiff's attorney, in each action then pending upon the surro- gate's official bond, and in each uncollected judgment recovered thereupon, direct and provide for the distribution of the money collected out of the property of the sureties, among the persons in favor of whom the liabilities have accrued, in proportion to the amount which each one is entitled to recover, to be ascertained by a reference, or in such other manner as the court directs.^® For the purposes of the motion, an order may be made by a 85 Unless special provision is other- 87 Co. Civ. Proc, § 1884. wise made by law. 88 Co. Civ. Proc, § 1883. 86 Co. Civ. Proc, § 1891. 89 Co. Civ. Proc, § 1885. §§ 37, 38. Okoasizatiok- of Sueeogates' Oouets. 20 judge, forbidding the payment, to the plaintiff in any action, of the sum collected or to be collected by virtue of a judgment therein; but the court is not authorized to compel a plaintiff to refund any money collected and received by him in good faith, before service of notice of such an order. ^^ The subject of the remedy upon a surrogate's bond has become of less moment since the adoption of the provision of the present Code, relieving him from the burden incident to the functions of depositary, custodian, and distributor of moneys paid into his court.®^ TITLE SEVENTH. COMPENSATION AND FEES OF StTREOGATE. § 37. Compensation of surrogate — By the Constitution, the sur- rogate, being a judicial officer, is not allowed to receive to his own use any fees or perquisites of office. His compensation consists exclusively of a salary, the amount of which was formerly fixed by the board/ of supervisors of the county; but at present is pro- vided for by special statutes, as required by the Constitution.*^ § 38. Compensation of temporary and acting surrogates An officer, or a person appointed by the board of supervisors, who acts as surrogate of any county during a vacancy in the office, or in consequence of disability, as prescribed in the Code, is entitled to be paid, for the time during which he so acts, a compensation equal, fro rata, to the salary of the surrogate; or, in a county where the county judge is also surrogate, to the salary of the county judge. The amount of his compensation must be audited and paid, in like manner as the salary of the surrogate, or of the county judge, as the case may be. Where an officer of the county performs the duties of the surrogate, with respect to a particular matter, wherein the surrogate is disqualified or precluded from act- ing, the supervisors of the county must allow him a just compen- sation for his services therein, to be audited and collected in the 90 Co. Civ. Proc, § 1885. 93 Co. Civ. Proc, S 2493. The com- 91 See Co. Civ. Proc., § 2537, as pensation to be paid is only for the amended 1882, and c. II, tit. 6, i)ost. time of actual service. (Matter of 92 See L. 1892, c. 686, § 222. As to Tyler, 60 Hun, 566 ; 15 N. Y. Supp. the salaries of the surrogates of Suf- 366.) As to the compensation of the folk, Chautauqua, Fulton, and Orange special surrogate of Oneida county, counties, see L. 1897, c. 232 (amending see People ex rel. Sholes v. Super- L. 1892, c. 686). L. 1900 c. 300, L. visors, etc., 82 Hun, 105; 31 N. Y. 1901, c. 161, and L. 1901, c. 505, Supp. 63. respectively, 21 Oegaa^ization of Sueeogates' Coxiets. §§ 39, 40. § 39. Fees of surrogate.— In counties other than ISTew York, the surrogate, or the clerk of the Surrogate's Court, may charge for searches of the records, and for copies and transcripts thereof, the same fees as by law are allowed to a county clerk for a similar service.^ No surrogate is allowed to receive any fee for the per- formance of any official service, except that where, in a case pre- scribed by law, or in any other case, upon the application of a party, he goes to a place, other than his office, or the courtroom where he is required to hold court, in order to take testimony, he may charge and receive to his own use, ten cents for each mile for going, and the same sum for returning.®^ In New York county, neither the surrogate, nor his associates, or other clerks, employees, or subordinates in or attached to the surrogate's office or court, is permitted to charge or receive to his or their own use, or otherwise than for the benefit of the county, any fees, perquisites, or emoluments for any services rendered by him or them by virtue of his or their official positions, except mile- age as above ; and ten cents a folio for a copy of a paper, to be re- ceived for the use of the county.*® § 40. No fees to be charged in certain cases No fees for any services done or performed by a surrogate are to be charged to, or received from, an executor or administrator, in a case where " the inventory of personal property of a testator or intestate, filed in the office of the surrogate, does not exceed the sum of one thousand dollars." If the petition for letters testamentary or of adminis- tration shall allege that in the belief of the petitioner the inventory will not exceed such amount, no fees shall be received until it ap- pears from the inventory, when filed, that the personal property does exceed that sum. On the appointment of a guardian, if it appears that the application is made for the purpose of enabling the minor to receive bounty, arrears of pay, or prize money, or pension due, or other dues or gratuity from the Tederal or State government, for the services of the parent or brother of such minor in the military or naval service of the United States, no fees shall be charged or received.®'' 94 Co. Civ. Proc, § 961. He must 96 L. 1884, e. 530, §§ 6, 7. He must charge, and receive to the use of the cause a printed notice to be posted in county, for a copy of a paper, ten his office, that no clerk or assistant is cents for each folio, except where the authorized to charge any fee or re- board of supervisors have allowed his ceive any gratuity for any official clerk to receive fees for his own use; service rendered by him, except ten and in that case, his clerk may charge cents a folio for making copies of and receive the same fee. (Co. Civ. papers on ffie. (Id., § 8.) Proc. § 2567.) 9T Co. Civ. Proc, § 2501, as amended 95 Id., § 2567. 1893. § 41. Oeganizatioiy of Siteeogates' Couets. 22 § 41. Report of fees — In each county, except New York, tlie surrogate is required, at his own expense, to make a report to the board of supervisors of the county, on .the first day of each annual meeting thereof, containing a verified statement, of all fees re- ceived or charged by him for services or expenses since the last report, and of all disbursements chargeable against the same, or to the county, stating particularly each item thereof.** In ITew York county, the surrogate is required to keep a book showing in detail the fees received for copies of papers, the nature of the papers copied, and the name of the person paying the fees ; and he must account for, and pay monthly to the comptroller, the amount of fees received.®* 98 Co. Civ. Proc, § 2501, as amended »9 L. 1884, e. 530, § 9. 1893. CHAPTER II. JURISDICTION AND POWERS OF SURROGATES' COURTS. TITLE FIEST. GENERAL STATUTORY JURISDICTION. § 42. Jurisdiction under the Revised Statutes. — Tiie Eevised Statutes, as originally adopted, and taking effect in 1830, after conferring specified powers upon the surrogates, declared (2 R. S. 221, § 1, last clause) that the powers thus conferred should be exercised in the cases and in the manner prescribed by the stat- utes of this State, adding, "and in no other; and no surrogate shall, under pretext of incidental power or constructive authority, exer- cise any jurisdiction whatever, not expressly given by some statute of this State." This restriction gave rise to much difficulty, and seriously embarrassed the due exercise of the functions of these courts, and was consequently repealed in 1837.^ In the language of Chancellor Walworth,^ " it was found that the exercise of cer- tain incidental powers by courts, was absolutely essential to the due administration of justice, and that the revisers and the Legis- lature had not, by their care and forethought, been able to take the case of these Surrogates' Courts 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 powerswhich 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.^ IL. 1837, e. 460, § 71. rogates' Courts possessed before the 2 Pew V. Hastings, 1 Barb. Ch. 452. enactment of the Revised Statutes, 3 Sipperly v. Baucus, 24 N. Y. 46; and which were continued by the pro- Brick's Estate, 15 Abb. Pr. 12; Dobke visions of 2 E. S. 220, § 1, as amended V. McClaran, 41 Barb. 491; Campbell by L. 1837, p. 536, c. 460, § 71, were V. Thatcher, 54 id. 382; Pew v. Hast- as follows: (1) To take proof of the iogs, supra. The powers which Sur- execution of wills, and to admit them [23] § 42. JuEiSDicTioN, Etc., of Sueeogates' Couets. 24 This principle has been asserted, not only with respect to inci- dental powers, stich as inhere by reason of necessity in the exer- cise of the judicial function, but also with respect of matters of jurisdiction, to supply a costts omissus in those provisions of the statute which attempt to enumerate, or define in detail, the gen- eral jurisdiction over estates. Thus, it was held that the provi- sions of the former statute (2 K. S'. 73, § 23), declaring that the surrogate of each county shall have sole exclusive power, within his county, to grant administration in specified cases, was not to be regarded as covering all the cases in which he might grant ad- ministration ; and, in a case within the general principle of juris- diction, he should not decline to exercise that jurisdiction because the mode was not prescribed by the statute.* to probate. (2) To grant letters testamentary and of administration. (3) To swear executors or adminis- trators to the truth of the inventories and accounts exhibited by them. (4) To call administrators to account; to decree the just and equal order of distribution after the payment of debts and expenses; to compel ad- ministrators to observe and pay the same; and to enforce it by execution against the 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 in- sufficient, to divide the proceeds, after the payment of expenses, proportion- ally among creditors; to confirm all such sales, and direct conveyances to be made by executors or administra- tors, and to order the mortgaging or leasing of the rea^state of any tes- tator or intestate for the same pur- pose, 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 testa- mentary and of administration granted by them with all things con- cerning the same, or orders or decrees made by them for the sale of real estate, and all instruments, writings, or documents of a like nature, left unrecorded by their predecessors, and to complete the unfinished business of their predecessors. (10) To insti- tute inquiry respecting the personal estate of intestates, not delivered to the public administrator, nor ac- counted for lawfully by persons into whose hands it was supposed to have fallen. (11) They had authority to compel the attendance of witnesses, the production of wills, documents, or writings, and, for disobedience in such cases, to commit the party offending for contempt; and, lastly, in all mat- ters submitted to their cognizance, they were authorized to proceed ac- cording to the course of the court having, by the common law, jurisdic- tion of such matters, except so far as they were restricted by statute; and they had such incidental powers as were necessary to carry those which were necessary into effect. (Brick's Estate, 15 Abb. Pr. 12.) The fore- going enumeration is now substan- tially superseded by the express pro visions of the statute conferring or preserving most of these and also additional powers. See Co. Civ. Proc, particularly §§ 2472, 2481, 2538, and 3347. Clause (l\) is partly embodied in Co. Civ. Proc, § 2481, subd. 11, but with some material modifications. iKohler v. Knapp, 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 the necessity for so liberal a ruling, in respect to the pro- vision construed in that ease, has been removed by the phraseology of Co. Civ. Proc, I 2476, which remedies a notable defect in the original statute. 25 JuEisDicTio.N, Etc., of Sueeogates' Couets. § 43. So, also, where the statute authorized the surrogate to direct and control the conduct of guardians, and to settle their accounts, etc., it was held ^ that the surrogate had the power, not only to settle the account, and to ascertain and declare the quantity, quality, and condition of the ward's estate, but to decree and adjudge the time when, and the person to whom, and the manner in which, the same was to be paid or delivered over. The power to direct and con- trol could not be a barren power, and it was, therefore, held to comprehend the power of compelling the guardian to do whatever the law required he should do. An authority, therefore, which may be fairly and reasonably inferred from the general language of the statute, or which is necessary to accomplish its objects, and to the just and useful exercise of the powers which are expressly given, may be taken as granted. § 43. Courts of record, but of limited jurisdiction. — Until the adoption of the Code of Civil Procedure, Surrogates' Courts were courts not of record.® The commissioners who framed the Code left them in that category, and manifestly composed the entire work in view of such classification. The Code was enacted ex- pressly in the form in which it was reported to the Legislature,^ but was shortly afterward amended * by placing these courts in the list of courts of record, leaving unchanged many provisions which were based upon the former rule. Owing to these circumstances, that statute presents certain incongruities which did not originally exist. They were repeatedly declared by the courts to be mere creatures of the statute, possesoing no jurisdiction or powers, ex- cept those which by a favorable construction of the statute might be found to be conferred upon them.® This is still true, notwithstanding they have become courts of record. The courts are continually compelled to reiterate the doc- trine that these courts can exercise only such jurisdiction as has been specially conferred by statute, together with those incidental powers which may be requisite to effectually ca^y out the juris- diction actually granted.*" 5 Seaman v. Duryea, 10 Barb. 523. Wileox v. Smith, 26 Barb. 316; Magee See Danser v. Jeremiah, 3 Redf. 130, v. Vedder, 6 id. 352; Wilson v. Bap- and cases cited. tist, etc., Society, 10 id. 308; Dakin ePaflf V. Kinney, 1 Bradf. 1; Mat- v. Hudson, 6 Cow. 221; Corwin v. ter of Writner, 1 Tuck. 75; Westervelt Merritt, 3 Barb. 341; People v. Cor- V. Gregg, 1 Barb. Ch. 469. lies, 1 Sandf. 228; People v. Barnes, 7L. 1876, c. 448. 12 Wend. 492; Harris v. Meyer, 3 8L. 1877, c. 416, § 1. Redf. 450. 9 Cleveland V. Whiton, 31 Barb. 544; w Matter of Underbill, 117 N. Y. Siblev V. Waffle, 16 N. Y. 180. And 471; 27 St. Rep. 720; Matter of Bol- see Seaman v. Duryea, 11 id. 324; ton, 159 N. Y. 129; 53 N. E. Rep. 756. § 43. JuEiSDicTioN, Etc., of Surrogates' Courts. 26 The statute specifies a great variety of cases in which the surro- gate is to exercise his powers, and the manner of their exercise. So far as the statute goes, therefore, it regulates ir^peratively the exer- cise of the jurisdiction in the particular classes of cases specified.^^ It is not to be forgotten, however, that the Surrogate's Court is a tribunal proceeding according to the course of the common law, and is recognized by the common law. In all matters relative to the probate of testaments, and the administration of the estates of deceased persons, the court proceeds in conformity with pre- scription and established usage, except as modified from time to time by statutory regulations.-'^ Recent legislation, especially the Code of Civil Procedure, has conferred upon Surrogates' Courts some of the characteristics of courts of general jurisdiction, as will be hereafter pointed out, but, although the argument as to their status, based upon the fact that they were included, in the Revised Statutes,'^^ among the " courts of peculiar and special jurisdiction," fails, since the repeal ^* of the portions of those statutes relating to these courts, they are still courts of a special and limited jurisdiction; and, therefore, it is still true that where the court, in a matter regu- lated by the statute, has departed therefrom, or has assumed to exercise powers for which it has no authority, or to exercise them in a manner different from that prescribed by statute, its acts, like similar acts of other courts of special and limited statutory jurisdiction, are void.-*^ It will be seen, however, hereafter, that in the class of cases in which this principle has been found most important and has been most frequently invoked, viz., that of sales, etc., of real property by the surrogate's order, for the payment of debts, the principle is now no longer applicable, by reason of the statute ^^ which makes the validity of sales, etc., to depend upon the same principles as if the sales were made pursuant to directions contained in a judg- ment rendered by the Supreme Court in an action. 11 Co. Civ. Proe., § 2472. See Sevan Kinney, 1 Bradf . 1 ; Sheldon v. V. Cooper, 72 N. Y. 317, and cases Wright, 5 N. Y. 497; Riggs v. Cragg, infra. 89 id. 479, distinguishing Sevan v. 12 Campbell v. Logan, 2 Sradf. 90. Cooper, 72 id. 317; Thompson v. Mott, It is not, however, a court of equity. 5 Redf. 574. The jurisdiction of the (Brittin v. Phillips, 1 Dem. 57; Mat- Surrogate's Court is limited, yet ter of Geis, £7 Misc. 490; 59 N. Y. within that limitation its decree is Supp. 175.) conclusive until reversed on appeal. 13 2 R. S. 220, part 3, o. 2. (O'Connor v. Huggins, 113 N. Y. 511.) 14 L. 1880, c. 245, § 1, subd. 3 (2). le L. 1850, c. 82, § 1; L. 1869, c. 260, 15 People V. Corliea, 1 Sandf. 228; now substantially replaced by Co, Civ. People V. Sarnes, 12 Wend. 492; Cor- Proc, §§ 2473, 2474, 2784, and 2785. win V. Merritt, 3 Barb. 341; Paff v. 27 JuKisDicTioN, Etc., of Sukeogates' Couets. § 44. § 44. Subjects within the jurisdiction Having considered the general nature of the jurisdiction of the Surrogate's Court and its limitations, it will now be convenient to give the statutory enu- meration of the subjects within that jurisdiction. The powers and jurisdiction of the S>urrogate's Court, which are particularly defined by the Revised Statutes, have been enlarged and extended from time to time by subsequent legislation, the disposition being apparent to amplify rather than confine the limits. This various legislation has been reduced to order in the present Code, which provides as follows : " Each surrogate must hold, within his county, a court, which has, in addition to the powers conferred upon it, or upon the sur- rogate, by special provision of law, jurisdiction, as follows : " 1. To take the proof of wills; to admit wills to probate; to revoke the probate thereof ; and to take and revoke probate of heir- ship. " 2. To grant and revoke letters testamentary and letters of ad- ministration, and to appoint a successor in place of a person whose letters have been revoked. " 3. To direct and control the conduct, and settle the accounts, of executors, administrators, and testamentary trustees ; to remove testamentary trustees, and to appoint a successor in place of a testamentary trustee so removed. " 4. To enforce the payment of debts and legacies ; the distri- bution of the estates of decedents; and the payment or delivery, by executors, administrators, and testamentary trustees, of money or other property in their possession, belonging to the estate. " 5. To direct the disposition of real property, and interests in real property, of decedents, for the payment of their debts and funeral expenses, and the disposition of the proceeds thereof. " 6. To administer justice, in all matters relating to the affairs of decedents, according to the provisions of the statutes relating thereto. " 7. To appoint and remove guardians for infants ; to compel the payment and delivery by them of money or other property belonging to their wards ; and, in the cases specially prescribed by law, to direct and control their conduct, and settle their ac- counts. This jurisdiction must be exercised in the cases, and in the manner, prescribed by statute." " IT Co. Civ. Proc, § 2472. By L. ister oaths, to take affidavits, and the 1900, c. 510, amending L. 1884, c. 309, proof and acknowledgment of deeds surrogates are authorized to admin- and other instruments, and certify §§ 45-47. Jurisdiction, Etc., of Subrogates' Courts. 28 Each of the foregoing paragraphs has repeatedly come before the courts for application to particular cases. After stating, as we have, the statutory enumeration of the subjects of the jurisdic- tion of these courts, we reserve all consideration of their applica- tion until we come to speak of the particular subjects themselves, such as the probate of wills, letters in cases of testacy and of intes- tacy, the accounting of executors, administrators, and guardians, etc. § 45-. Admeasurement of dower — The jurisdiction to admeasure dower which Surrogates' Courts formerly enjoyed has been taken away ; the only existing remedy therefor now being a civil action under Code Civ. Proc, §§ 1596-1625. § 46. Adoption of children — By L. 1896, c. 272, § 60, et seq., known as the Domestic Relations Law, revising and consoli- dating previous statutes upon the subject, provision is made for an application to a Surrogate's Court by a foster-parent to confirm a voluntary adoption of a child. By the same act an application may be made by any child which may have been adopted in pur- suance of the provisions of the act, or by any corporation adopting it, or by any person in behalf of such child, for the termination and cancellation of the adoption, and of the relation of parent and child between a foster-parent and such child, upon the ground of cruelty, misusage, refusal of necessary provisions or clothing, or inability to support, maintain, or educate such child, or any violation of duty on the part of such foster-parent toward such child.-'* The statute declares the form of the proceeding.-'® TITLE SECOND. LlMITATIOlSr ON GENERAL POWERS. § 47. In gerieral. — As already stated, the general rule as to the limitation of the jurisdiction of the Surrogate's Court, is that no powers can be exercised by it which are not fairly and reasonably inferred from the general language of the statute as necessary to accomplish its objects. The application of this principle is ex- tlie same, -with like force and effect, by virtue of statute. (Matter of as if taken and certified by a county Thorne, 155 N. Y. 140; 49 N. E. 661; judge. citing Carroll v. Collins, 6 App. Div. 18 See L. 1897, c. 408; L. 1899, c. 106.) 498. The adoption of children was 19 The County Court and the Sur- unknown to the common law of Eng- rogate's Court having concurrent juris- land and exists in this country only diction over proceedings for the adop- 2'J JuEisDicTiox, Etc., of Sueeogates' Couets. 47. hibited in a great variety of cases, which will be mentioned more appropriately hereafter, under the titles of Probate of Wills ; Con- struction of Wills ; Letters Testamentary, and of Administration ; Accountings, and other special proceedings in Surrogates' Courts. It is only proposed to give here some instances of general applica- tion, showing the extent to which the statute conferring jurisdic- tion, notwithstanding its genera] language, has been limited. Surrogates' Courts do not possess the general powers of a court of equity.^" Hence, for example, they have no authority to set off mutual judgments ;^^ nor to pass on the validity of a claim of indebtedness of a legatee to the estate, such claim being set up by the executor in reduction of the legacy -^ nor to adjudge that the next of kin who have received assets shall pay to the administrator their share of the debts incurred by him, and giving the latter execution therefor -^ nor to pass upon the validity of a release from the beneficiary to the trustee.^* A surrogate has no jurisdiction to order an administrator to pay over to the widow and children of decedent funds received by him belonging to them, but which are not assets of the estate.^ tion of an infant under the Domestic Relations Law, a proceeding to abro- gate an adoption can only be enter- tained by the court that granted the order therefor. (Matter of Trimm, 30 Misc. 493; 63 N. Y. Supp. 952.) 20Brittin v. Phillips, 1 Dem. 57; Matter of Geis, 27 Misc. 490; 59 N. Y. Supp. 175. 2lStilwell V. Carpenter, 59 N. Y. 414; Charliek's Estate, 11 Abb. N. C. 56; Matter of Livingston, 27 Hun, 607; Rudd V. Rudd, 4 Dem. 335. A claim of a testamentary trustee against a balance of income of the trust in his hands, arising from an alleged in- debtedness to him of the beneficiary of such income, cannot be adjusted in a Surrogate's Court. (Matter of Rutherford, 5 Dem. 499.) 22 Matter of Colwell, 15 St. Rep. 742; Matter of Jones, 10 id. 176; Bauer v. Kastner, 1 Dem. 136; Kintz V. Friday, 4 id. 540. Nor has he any power to determine the claim of an administrator for advances in the form of merchandise made to a dis- tributee, where the latter denies the receipt of such merchandise and dis- putes its value. (Barker v. Laney, 90 Hun, 108; 35 N. Y. Supp. 626.) See s. c, in 7 App. Div. 352. 23 Matter of Keef, 43 Hun, 98. See Matter of Lang, 144 N. Y. 275 ; 63 St. Rep. 694. 24 Van Sinderin v. Lawrence, 14 St. Rep. 412; Matter of Wagner, 52 Hun, 23; aff'd 119 N. Y. 28; Sanders "v. Soutter, 126 id. 193; 37 St. Rep. 1. The surrogate has no jurisdiction to determine the right of inheritance to a fund received by the administrator which belonged to his intestate, but which in law is to be regarded as real estate. ( Matter of Woodworth, 5 Dem. 156.) To the same effect, Matter of McKay, 37 Misc. 590; 75 N. Y. Supp. 1069. Nor has he jurisdiction to pass upon the equitable claim of a beneficiary who has assigned his interest to the ef- fect that such assignment, although ab- solute on its face, was intended merely as collateral security for a loan; and the surrogate must recognize such as- signment as valid. (Young v. Purdy, 4 Dem. 455.) And see McMahon V. Maey, 51 N. Y. 155; Hodges v. Ten- nessee Ins. Co., 8 id. 416; Despard v. Walbridge, 15 id. 374; Henderson v. Fullerton, 54 How. Pr. 422; Stilwell V. Carpenter, 59 N. Y. 414; Bevan v. Cooper, 72 id. 317; McNulty v. Hurd, id. 518 ; Boughton v. Flint, 74 id. 476 ; Sheridan v. The Mayor, 68 id. 30. 25 Matter of Cooley, 6 Dem. 77. An executor received the amount of a § 47. Jurisdiction, Etc., of Stjkeogates' Oouets. 30 He lias no jurisdiction to try and determine the question of the validity of an assignment, procured by the administrator of an in- testate's estate, from one interested therein, of the interest of the latter, where the same is attacked on the ground of alleged fraud in its procurement.^® Nor can he inquire into the validity of sales of real estate made by the representative alleged to be fraudu- lent.^^ So a Surrogate's Court has no power, on the accounting of an executor, to decide that a transfer made during the lifetime of the deceased to the person who was afterward appointed his executor, and valid as between the parties, was void as to creditors ; and cannot thereupon require the executor to account for what he has thus received.^^ And an executor, dn his accounting, can- policy of insurance upon testator's life, which by its terms was payable to his personal representative for the benefit of the widow. Held, that a Surrogate's Court had no jurisdiction to enforce such trust by compelling the executor to pay the amount re- ceived to the widow. (Matter of Van Dermoor, 42 Hun, 326.) See Matter of MeFarland, N. Y. Law Jour., De- cember 14, 1892. The surrogate can- not pass upon the validity of a col- lector's claim of title to property alleged to belong to the estate, the title having been acquired prior to the period of his eollectorship. Nor can he compel an executor to account for property received by his testator, as executor, unless it has come into the last executor's possession. (Montross V. Wheeler, 4 Lans. 99; Gottsberger V. Smith, 2 Bradf. 86.) 26 Woodruff V. Woodruff, 3 Dem. 505; Matter of Evans, 58 App. Div. 502 ; Matter of Cook, 68 Hun, 280 ; 22 N. Y. Supp. 969. Nor can he deter- mine the validity of an assignment of a distributive share, attacked for fraud; but where such validity is con- ceded, he may, on an accounting, de- cree distribution accordingly. (Mat- ter of Randall, 152 N. Y. 508; 46 N. E. 945.) See Matter of Redfield, 71 Hun, 344; Matter of Arkenburgh, 38 App. Div. 473; 56 N. Y. Supp. 523. Com- pare Matter of Browne, 35 Misc. 366 ; 71 N. Y. Supn. 1037. A decedent's dis- charge in bankruptcy may be attacked collaterally, in a special proceeding re- lating to his estate, and declared void, as against a creditor as to whom the same was fraudulently procured. (Jones V. Le Baron, 3 Dem. 37.) See § 968, post. 27 Matter of Valentine, 1 Misc. 491; 23 N. Y. Supp. 289, and cases cited. 28 Matter of Kellogg, 39 Hun, 275. In this case the court cited Geery v. Geery, 63 N. Y. 252; Southard v. Ben- ner, 72 id. 424; Adsit v. Butler, 87 id. 585; Lichtenberg v. Herdtf elder, 5 Civ. Proe. Rep. 426; Estes v. Wilcox, 67 N. Y. 264; Ocean Nat. Bank v. Olcott, 46 id. 12; Dewey v. Moyer, 72 id. 70; Genesee River Nat. Bank v. Mead, 18 Hun, 303; 92 N. Y. 637; Richardson V. Root, 19 Hun, 473; Hyland v. Bax- ter, 98 N. Y. 610; Matter of Raymond, 27 Hun, 508; Merchant v. Merchant, 2 Bradf. 432; Martin v. Root, 17 Mass. 222; Holland v. Cruft, 20 Pick. 338. Landon, J., dissenting, cited Southard V. Benner, 72 N. Y. 424; Hyland v. Baxter, 98 id. 610; Richardson v. Root, 19 Hun, 473. He has no power to try issues arising out of an administra- tor's interest as mortgagee of real estate of the intestate, nor to compel him to account for alleged profits in his hands as belonging to the estate. (Matter of Monroe, 142 N. Y. 484; 60 St. Rep. 102.) But upon a repre- sentative's accounting, the court has power to construe or determine the validity of an antenuptial agreement made by a testator, in contemplation of the future distribution of his prop- erty, it appearing that the agreement was obtained through deceit or false representations, and the provision made for the wife under it is less than her legal share. (Matter of Jones, 3 Misc. 586.) See Pierce v. Pierce, 71 N. Y. 154; Matter of Davenport, 37 Misc. 179; 74 N. Y. Supp. 940. 31 Jtjeisdiction, Etc., of Suekogates' Couets. §§ 48, 49. not have an affirmative judgment against a legatee, a party to the proceeding, for the excess overpaid him on his legacy, the surro- gate having no authority to grant such relief.^® § 48. Surrogate's control of attorneys. — The surrogate has no control over attorneys, as such.^" He cannot, therefore, compel an attorney for a guardian to account for moneys in his hands, belonging to the infant, or punish him for an injury to the estate. ^^ Xor can he prescribe the terms iipon which a change of attorneys may be effected in a proceeding before him, or determine the amount vf compensation to vphich the retiring attorney is entitled.'^ He has no power to protect or enforce the lien of an attorney upon his client's interest in an estate pursuant to an agreement giving him a share therein for his services, so far as the same relates to real estate which the executors have not converted and are not accountable for.^^ But as to assets in the executor's hands, the court may protect the attorney under such agreement, by requir- ing that he be secured before permitting a discontinuance of the proceedings instituted in behalf of his client.^* So, too, he may vacate a legatee's satisfaction of a decree of distribution, given in violation of the attorney's lien for services.^® § 49. Determining creditor's disputed claims By the Revised Statutes surrogates were empowered upon the final accounting of an executor or administrator to enforce the payment of debts,^® and to " settle and determine all questions concerning any debt, claim, etc., to whom the same shall be payable, and the sum to be paid to each person." ^^ It was, nevertheless, held that Surro- gates' Courts were not constituted or intended for the trial of 29 Matter of Underbill, 117 N. Y. 34 lb. 471; 27 St. Rep. 720; Matter of Lang, 35 Matter of Regan, 167 N. Y. 144 N. Y. 275 ; 63 St. Rep. 694 ; John- 338 ; 60 N. E. 658, revg. 58 App. Div. son V. Weir, 34 Misc. 683 ; 70 N. Y. 1, and cases cited. An attorney bas Supp. 1020; Matter of Hodgman, 140 a lien upon a surrogate's decree in N. Y. 421. See § 774, post. favor of bis client rendered on an 30 He cannot enforce the liability of executor's accounting even though an attorney for costs under Co. Civ. such decree was entered before the Proc, § 3278, as that section does not amendment of section 66 of the Code apply to Surrogates' Courts. (Matter securing to an attorney a lien for of Raseh, 26 Misc. 459; 55 N. Y. Supp. services in a special proceeding. (lb.) 434.) But the attorney cannot, for his own 31 Matter of Writner, 1 Tuck. 75. benefit, continue the proceeding after 32 Matter of Halsey, 13 Abb. N. C. settlement between the parties. (Mat- 353; Chatfield v. Hewlett, 2 Dem. 191; ter of Evans, 58 App. Div. 502; 69 Pryer v. Clapp, 1 id. 387; Matter of N. Y. Supp. 482.) Krakauer, 33 Misc. 674; 68 N. Y. Supp. 36 2 R. S. 221, § 1; Co. Civ. Proc, 935. § 2472. suhd. 4. 33 Matter of Fernbacher, 5 Dem. 37 2 R. S. 96, § 71; Co. Civ. Proc, 219; 18 Abb. N. C. 1. § 2743. § 49. Jurisdiction, Etc., of Surrogates' Courts. 32 disputed claims. And even if a contested claim was submitted to the surrogate by all the parties in the interest, his decision in regard to it, and a decree made thereon, would not be binding on any of the parties, and could not be sustained even as an arbitra- tion.^* Nor did the surrogate of New York county, under L. 1870, c. 359, § 6,^® giving him power in any accounting, etc., to ap- point a referee " to hear and determine all disputed claims and other matters relating to said accounts," have power to pass upon the disputed claim of a creditor against the estate, so as to bar the creditor's common-law remedy.*" Nor had he the power, under 2 E.. S. 116, § 18,*^ allowing him six months after the time of granting letters of administration to decree payment of a debt of the intestate, etc., to order payment of a contested claim.*^ The rule contained in these decisions, withholding from surrogates the power, upon the final accounting (now termed the " judicial settlement of the account") of an executor or administrator, to pass on a claim against the estate of a decedent, which is disputed by the representative, was, until 1895, retained by the Code of Civil Procedure, which provided that where, upon the judicial settlement of the account of an executor or administrator, " the validity of a debt, claim, or distributive share is not disputed or has teen estahlished_, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other ques- tions concerning the same." ** In 1895, however, power was con- ferred upon the surrogate to pass upon a claim which " is ad- mitted, or has been established upon the accounting or other pro- ceeding in the Surrogate's Court, or other court of competent jurisdiction," ** provided " a written consent shall be filed by the respective parties with the surrogate that said claim may be heard and determined by him upon the judicial settlement of the ac- counts of said executor or administrator." ** 38 Tucker v. Tucker, 4 Abb. Ct. Estate, 11 Abb. N. C. 50; Giles' Es- App. Dec. 428 ; Bevan v. Cooper, 72 N. tate, id. 57 ; Van Valkenburgh v. Y. 317. Lasher, 53 Hun, 594; Matter of 39 Oo. Civ. Proc, § 2546. Schmidt, 58 N. Y. Supp. 595. Where •40 Cooper v. Felter, 6 Lans. 485. See a claim is compromised and an agree- Leviness v. Cassebeer, 3 Redf. 491; ment to that effect made between the Matter of Leslie, id. 280 ; Garvey v. Me- creditor and representative, the sur- Cue, id. 313. rogate may not order payment, as it 41 Co. Civ. Proc, § 2717. is in effect the specific performance of 42Ruthven v. Patten, 1 Robt. 416; a contract. (Matter of Bronson, 69 2 Abb. Pr. (N. S.) 121. App. Div. 487; 74 N. Y. Supp. 1052.) *3Co. Civ. Proc, § 2743, in part. See «L. 1895, e. 595, amending Co. Civ. Matter of Callahan, 152 N. Y. 320; Proc,, § 2743. Greene v. Day, 1 Dem. 45; Kammerrer 45 Co. Civ. Proc, § 1822, as amended V. Zie^ler, id. 177; Dubois v. Brown, 1895; Matter of Kirby, 36 Misc. 312; id. 317; 3 Civ. Proc. Rep. 39; Martine's 73 N. Y. Supp. 509. 33 JuEisDicTiON, Etc., of Suekogates' Couets. § 50. For reasons which may be deemed not fully apparent, the sur- rogate had, under the former statute, and still possesses such power, in proceedings to sell the real property of a decedent for jDayment of debts or funeral expenses,*® as well as upon the ju- dicial settlement of the account of a testamentary trustee.*^ A contest between an accounting executor or administrator and any of the other parties, respecting a debt alleged to be due by the ac- counting party to the decedent, or by the decedent to the account- ing party, the court has jurisdiction to try and determine.*^ It should be noticed that the statute does not extend to the case of the claim of a third person against a general guardian as such. iTo provision is made for the compulsory payment by a general guardian of a debt already incurred, e. g., for the board of the ward.*^ § 50. Incidental nonstatutory powers Where, in a subject within his jurisdiction, the surrogate deems justice to require the exercise of an incidental power which has not been expressly given him by the statute, he should not for that reason decline to exer- cise it. For instance, where the statute made no express provision for revoking a probate, in case another and later will was dis- covered, the power to do so was implied from the section declaring the force of the probate as evidence, until reversed on appeal, re- voked on allegations, or declared void by a competent tribunal. ^'^ So a decree admitting a will may be opened at the instance of a former contestant to enable him to apply for a judicial construc- tion of its provisions. ^^ As an incident to his power to determine questions concerning distributive shares, etc.,^^ the surrogate has power to determine the validity of alleged gifts causa mortis by a decedent.^^ Within the domain of his statutory jurisdiction of the subject-matter, he may exercise any powers not inconsistent with existing law, which were enjoyed by the colonial courts of probate, or the successors of such courts, previous to the adoption of the Revised Statutes.^* 46 Co. Civ. Proc, § 2755, as amended Hampton v. Stoehr, 51 St. Rep. 560 ; 1887; § 2758; Matter of Haxtun, 102 23 N. Y. Supp. 280. See chapter XX, N. Y. 157. See § 858, post. post. 47 Co. Civ. Proc, § 2812. 50 Campbell v. Logan, 2 Bradf . 90. 48 Co. Civ. Proc, § 2731, as amended 51 Matter of Keeler, 5 Dem. 218. 1893. Matter of Marcellus, 165 N. Y. 52 2 R. S. 95, § 71; Co. Civ. Proc, 70; 58 N. E. 796, and eases cited. § 2743. The statute is as applicable to tempo- 53 Fowler v. Lockwood, 3 Redf . 465 ; rary as to general administrators. Matter of Pearson, 21 St. Rep. 128. (Matter of Eisner, 5 Dem. 383.) 54 Skidmore v. Davies, 10 Paige, 49 Welch V. Gallagher, 2 Dem. 40; 316; Proctor v. Wanmaker, 1 Barb. 3 §§ 51, 52. JuBiSDicTioN, Etc., of Sueeogates' Couets. 34 § 51. Power to grant naturalization. — Since they are courts of record, having a clerk and seal. Surrogates' Courts possess com- mon-law jurisdiction, within the meaning of the Federal statute, to grant naturalization.^® TITLE THIED. INCIDEITTAL JUEISDICTION AND POWEES. § 52. Incidental statutory powers.— In order to render effective the general powers conferred upon surrogates, and provide them with proper and adequate means of exercising their jurisdiction, the Legislature has given them certain special or incidental powers relating to their mode of procedure, etc. These powers are :®^ " 1. To issue citations to parties, in any matter within the juris- diction of this court; and, in a case prescribed by law, to compel the attendance of a party. " 2. To adjourn, from time to time, a hearing or other proceed- ing in his court ; and where all persons who are necessary parties have not been cited or notified, and citation or notice has not been waived by appearance or otherwise, it is his duty, before proceed- ing further, so to adjourn the same, and to issue a supplemental citation, or require the petitioner to give an additional notice, as may be necessary. " 3. To issue, under the seal of >the court, a subpoena, requiring the attendance of a witness residing or being in any part of the State, or a subpoena duces tecum, requiring such attendance, and the production of a book or paper material to an inquiry pending in the court. " 4. To enjoin, by order, an executor, administrator, testamen- tary trustee, or guardian, to whom a citation or other process has been duly issued from his court, from acting as such, until the further order of the court. "5. To require, by order, an executor, administrator, testamen- tary trustee, or guardian, subject to the jurisdiction of his court, to perform any duty imposed upon him by statute, or by the Stir- rogate'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 Ch. 302; Isham v. Gibbons, 1 Bradf. phant, 19 id. 30; Halsey v. Van Am- 69; Vreedenburgh v. Calf, 9 Paige, ringe, 6 Paige, 12. 128; Matter of Parker, 1 Barb. Ch. B5 Matter of Harstrom, 7 Abb. N. C. 154; Campbell v. Thatcher, 54 Barb. 391. 382. Compare Farnsworth v. Oli- se Co. Civ. Proe., § 2481. 35 JuEisDiCTioif, Etc., of Sueeogates' Couets. § 53. trial or a new hearing for fraud, newly-discovered evidence, cleri- cal error, or other sniEcient cause. The powers conferred hy this subdivision must he exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the general term (Appellate Division) of the Supreme Court has the same power as the surrogate; and his determination must be reviewed, as if an original application was made at that term. " Y. To punish any person for contempt of his court, civil or criminal, in any case, where it is expressly prescribed by law that a court of record may punish a person for a similar contempt, and in like manner. " 8. Subject to the provisions of law relating to the disqualifi- cation of a judge in certain cases, to complete any unfinished busi- ness pending before his predecessor in the office, including proofs, accountings, and examinations. " 9. To complete, and certify and sign in his ovra. name, adding to his signature the date of so doing, all records or papers left uncompleted or unsigned by any of his predecessors.^^ " 10. To exemplify and certify transcripts of all records of his court, or other papers remaining therein. " 11. With respect to any matter not expressly provided for in the foregoing subdivisions of this section, to proceed, in all mat- ters 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, except as otherwise prescribed by statute ; and to exercise such incidental powers, as are necessary to carry into effect the powers expressly conferred." It is only necessary in this place to remark upon two or three of these incidental powers, as not naturally falling under any of the general subjects of jurisdiction hereafter separately treated. § 53. Power to grant injunction. — The authority of a Surro- gate's Court to issue injimctions is extended by the fourth sub- division above, the former statute having confined it to executors. 57 "AH acts hitherto of surrogates of probate thereof, before their pre-~ and officers acting as such in complet- deeessors in office, are hereby con- ing by certifying in their own names firmed and declared to be valid and in any uncertified wills, and by signing full compliance with the pre-existing and certifying in their own names the statutory requirements." (Co. Civ. unsigned and uncertified records of Proc, § 2482, as amended 1893.) For wills and of other proofs and ex- similar previous statutes, see L. 1870, aminations taken in the proceedings c. 74; L. 1890, c. 155. § 54. JuEisDicTioif, Etc., of Sueeogates' Oouets. 36 administrators, and guardians, and to cases where a citation for their removal had been issued.^^ The same observation may be made as to the effect of the fifth subdivision, in respect to the court's power to order representatives, trustees, and guardians to perform any duty imposed on them. The power given to surro- gates by the Revised Statutes ^® to direct and control the conduct of executors and administrators, is now extended to the case of testamentary trustees and guardians; but this power was never understood to give a surrogate authority to direct them in regard to the prosecution of suits in other courts affecting the estate,®" nor in respect to such a matter as the charging of a legacy on the residuary real estate by an executor.®^ Previously to L. 1865, c. 733,®^ a surrogate had no authority to compel a rep- resentative, who had been removed from office, to deliver over to his successor the assets in his hands ;®^ though he now has such power.^ He cannot, however, on a summary application, compel an administrator to deliver to a claimant property taken posses- sion of as part of the estate.®^ The court may compel executors to perform their duty by expending for the benefit of infant legatees the interest of a sum of money intrusted to them for that purpose by the testator, notwithstanding that the executors might be made liable in an equitable action in the Supreme Court.®® A Surrogate's Court has no jurisdiction to order the satisfaction of record, of a mortgage upon the real estate of an infant, although his estate is subject to its jurisdiction. *'' § 54. New trial or rehearing for fraud, etc — The interpretation of the sixth subdivision, giving a Surrogate's Court power to open, vacate, modify, or set aside its decrees or orders, and to grant a new trial or a new hearing for fraud, newly-discovered evidence, clerical error, or other sufficient cause, has been a subject of fre- quent controversy. Even before the adoption of the present Code, the power of a surrogate to open and vacate a decree obtained through mistake, accident, or fraud, was held to be equal to that 58 L. 1837, c. 469, § 61. 62 Co. Civ. Proc, § 2605. 59 2 R. S. 220, § 1, subd. 3; Co. Civ. 63 Annett v. Kerr, 2 Eobt. 556; Proc, § 2472, subd. 3. See, on the Marston v. Paulding, 10 Paige, 40. general subject of the surrogate's con- 64 But see Breslin v. Smyth, 3 Dem. trol and supervision of executors, etc., 251. chapter XVII, tit. 1, art. 2, post. 65 Marston v. Paulding, 10 Paige, 60 Matter of Parker, 1 Barb. Ch. 40; Thompson v. Mott, 5 Redf. 574. 154. He may authorize a compromise. 68 Dubois v. Sands, 43 Barb. 412. (L. 1888, c. 571.) 67 Cromwell v. Kirk, 1 Dem. 599. eiBevan v. Cooper, 72 N. Y. 317; Matter of Woodworth, 5 Dem. 156. 37 JuBiSDiCTioN, Etc., of Sukeogates' Courts. § 54. exercised by a court of equity on a bill filed for relief against a judgment or decree for fraud or mistake.®* But the powers of the surrogate in this regard are confirmed and largely extended by the Code. He has the power of a court of general jurisdiction to vacate his decrees, or those of his predecessor,*® and grant relief as in the Supreme Court, for sufficient reason, in furtherance of justice ;^* and the exercise of this power is not subject to the limita- tions of time, prescribed with reference to motions to set aside judgments for irregularity or for error of fact not arising on the trial.'^^ The statute is not to be construed, however, -as granting power to set aside a decree without any assigned cause, and to grant a new trial only for the specified cause; but the causes specially indicated, or other " sufiicient cause," should be shown to induce the setting aside of a decree duly entered after full litiga- tion.^^ The opening of a surrogate's decree, formally and lawfully made, requires the exercise of the soundest discretion. " It should only be done in extraordinary cases, and where errors are plain, palpable, and beyond any question. The greatest caution should, at all times, be observed, in thus furnishing the opportunity to correct errors in the judgment of a competent tribunal, and it should never be done to the extent of allowing the whole subject- matter to be investigated and tried over again. Such a practice would be virtually permitting the tribunal to review its own pro- 68 Vreedenburgh v. Calf, 9 Paige, 7i See Co. Civ. Proc, §§ 12S2, 1290; 128; Skidmore v. Davies, 10 id. 316; Matter of Flynn, supra; Matter of Baiiey v. Hilton, 14 Hun, 3, aflfg. Henderson, supra. Bailey v. Stewart, 2 Redf. 212; Sip- 72 Matter of Douglas, 52 App. Div. perly v. Baucus, 24 N. Y. 46; Pew v. 303; 65 N. Y. Supp. 103; Matter of Hastings, 1 Barb. Ch. 452; Harrison White, 52 App. Div. 225; 65 N. Y. V. McMahon, 1 Bradf. 283; Campbell Supp. 168; Matter of Olmsted, 17 V. Logan, 2 id. 92; Brick's Estate, 15 Abb. N. C. 320; s. e. as Olmstead v. Abb. Pr. 12; Yale v. Baker, 2 Hun, Long, 4 Dem. 44. The discovery of 468 ; Janssen v. Wemple, 3 Redf. 229 ; further evidence in a book, which was Dobke V. McClaran, 41 Barb. 491; in the possession of a party pending Farmers' Loan & T. Co. v. Hill, 4 Dem. the litigation previous to a decree, 41. cannot be deemed newly-discovered 69 Matter of Smith, 89 Hun, 606; 34 evidence upon which the decree should N. Y. Supp. 1057. See Matter of be opened. (lb.) The surrogate may, Hancock, 27 Hun, 78, revd. on another however, open a decree on the motion point in 91 N. Y. 284. of the personal representatives of a. ■70 Matter of Flynn, 136 N. Y. 287; deceased administrator for newly-dis- Ladd V. Stevenson, 112 id. 325; Mat- covered evidence exonerating him for ter of Tilden, 5 Dem. 230; 98 N. Y. amounts with which his account has 434; Singer v. Hawley, 3 Dem. 571, been surcharged; though the power affd., 100 N. Y. 206; Matter of Robert- will be exercised only in like case and son, 51 App. Div. 117; 64 N. Y. Supp. in the same manner as by a court of 385; aflfd., 165 N. Y. 675; Matter of general jurisdiction. (Matter of Me- Henderson, 157 N. Y. 423; 28 Civ. Manus, 35 Misc. 678; 72 N. Y. Supp. Proc. Rep. 389; Matter of Fulton, 30 409.) Misc. 70; 62 N. Y. Supp. 995. § 54. JuEiSDicTioN, Etc., of Sueeogates' Couets. 38 ceedings, the same as upon an appeal, which, was never intended, and should not be tolerated." ^^ There is, therefore, no warrant for opening a decree on the ground that it was based on an er- roneous theory of the law; the remedy for that is by appeal." Ignorance of the law at the time of the entry of the decree, and the nondiscovery of the mistake until after the expiration of the time to appeal therefrom, furnish no ground for the opening of the decree.^^ The fact that the surrogate to whom the application is made entertains different views of the merits from those of his predecessor whf> decided the case, is no " sufEcient cause " why there should be a rehearing.''® A reargument should only be or- dered when it appears clearly that some question decisive of the case, and duly submitted by counsel, has been overlooked by the court; or that the decision is in conflict with an express statute or with a controlling decision, to which the attention of the court was not drawn, through the neglect or inadvertence of counsel." But the mere fact that the attorney in drawing a decree made a mistake on a matter of law is not suflScient to authorize the open- ing of the decree,^^ though in a proper case the decree will be opened for the purpose of correcting clerical errors in the form of the decree ; and a rehearing will be granted, so far, for example. 73 Decker v. Elwood, 3 Sup. Ct. [T. may grant a new trial of a probate & C] 48. See Matter of Filley, 47 proceeding determined by his prede- St. Rep. 428; Story v. Dayton, 22 cessor, on the ground that such pre- Hun, 450. decessor had a disqualifying interest. 74Matter of Humfreville, 8 App. (Matter of Hancock, 27 Hun, 78.) Div. 312; 40 N. Y. Supp. 939; Matter This judgment was reversed (91 N. Y. of Mount, 27 Misc. 411; 59 N. Y. Supp. 284) on the ground that the interest 176 ; Matter of Wallace, 28 Misc. 603 ; was not disqualifying, but the power 59 N. Y. Supp. 1084 (distinguishing of the surrogate to grant a new trial the case where the surrogate had no for such cause was not called in ques- jurisdiction to make the decree sought tion. to be corrected, as in Matter of 7T Mount v. Mitchell, 32 N. Y. 702, Coogan, 27 Misc. 563) ; Matter of and cases supra. In Matter of Wood Douglas, 52 App. Div. 303; 65 N. Y. (N. Y. Law Jour., June 2, 1891), Supp. 103; Matter of Monteith, 27 Ransom, S., said: "The motion for Misc. 163 ; 58 N. Y. Supp. 375 ; Matter a reargument is founded upon the of Walrath, 37 Misc. 696. The pro- opinion of new counsel that he might visions of Code Civ. Proc, § 2481, present the questions formerly argued subd. 6, conferring on the surrogate and fully considered by the court so power to vacate, modify, or set aside as to induce the qourt to reverse its a decree, extends no further than to former decision. Such practice would give the power inherent in every be contrary to the orderly administra- court of general jurisdiction to con- tion of justice, and, if its sanction trol its orders and judgments. (Mat- rested in the sound discretion of the ter of Hayward, 44 App. Div. 265; 60 court, ought not to be approved; but I N. Y. Supp. 636.) do not find that the court is vested 75 Matter of Ermand, 24 Hun, 1 ; with any discretion." Reed v. Reed, 52 N. Y. 651. 78Carr v. Tompkins, 46 St. Rep. 76 Melcher v. Stevens, 1 Dem. 123, 585 ; 19 N. Y. Supp. 647. and many cases cited. A surrogate 39 JuEisDicTioN, Etc., of Sueeogates' Coxjets. § 54. as to determine the executor's liability on a note credited to him for the full amount, but which he, in fact, settled for less than its face, without giving the estate the benefit thereof.''^ The court's power to open and vacate a decree is limited to cases where " fraud, newly-discovered evidence, clerical or other sufficient cause " of a like nature are shown.®" The " other sufficient <;ause " must be one which the Supreme Court has been accus- tomed to recognize as legally sufficient.*^ That certain testimony was not given on the trial, through " the inattention of counsel," is not a ground for setting aside a referee's report and granting a rehearing.*^ That an order or decree is void for want of jurisdiction is, of course, a sufficient cause for vacating it, and the objection may be raised by a motion.*^ Thus it is sufficient cause to open a decree that the service of a citation was made upon a person, non compos mentis, for whom no next friend had been appointed.** 79 Matter of Beach, 3 Misc. 393; 24 N. Y. Supp. 717. 80 Matter of Hawley, 100 N. Y. 206 ; Wright's Accounting, 16 Abb. Pr. (N. S. ) 429 ; 7 Hun, 608 ; Matter of Hodg- man, 82 id. 419; 31 N. Y. Supp. 263. 81 Matter of Kranz, 41 Hun, 463; where it was held improper to send back to a referee for rehearing the matter of a contested account upon which he has reported, on the ground that the accounting administrator has discovered vouchers which had been mislaid, and asks to call witnesses who had been omitted by oversight, where no fraud or clerical error is alleged, no sufficient statement of the newly-discovered evidence being made, and it being apparent that no in- justice has been done to the admin- istrator. See Matter of Ramsdell, 20 St. Rep. 446 [newly- discovered evi- dence]. So also it is not a sufficient ground for opening a decree settling an executor's account that an item of credit, e. g., his commissions, was not allowed him. When a party has had his day in court he must show that it was not his fault that he did not im- prove it, before he can get another day on the same matter. (Matter of O'NeU, 46 Hun, 500.) The fact that an executor erroneously charged him- self, on the settlement of his ac- counts, with a sum which he knew •did not belong to the estate as assets, but was a gratuity, to which the widow and children were entitled on testator's death by virtue of his mem- bership in a produce exchange, is not sufficient cause for afterward opening and modifying the decree by deducting such sum. (Matter of Watts, 2 Con- noly, 415 ; 20 N. Y. Supp. 63. ) But a surrogate, whose decree has omitted a provision for the payment of certain legacies, contained in his decision, may amend the decree, by inserting it. (Matter of Robertson, 51 App. Div. 117; 64 N. Y. Supp. 385; aff'd 165 N. Y. 675.) See Matter of McGorray, 48 St. Rep. 141; 20 N. Y. Supp. 366; Matter of Baity, 2 Connoly, 485; 20 N. Y. Supp. 70; Matter of Stringer, 22 id. 44. 82 Matter of Quin, 22 St. Rep. 338. The court will not grant a rehearing on allegations of the incompetency of the counsel who conducted the trial, nor to enable witnesses to contradict their former testimony. (Munro's Estate, .15 Abb. Pr. 363.) 83 Matter of Coogan, 27 Misc. 563; Seaman v. Whitehead, 78 N. Y. 306. An order denying the motion is ap- pealable, (lb.) Matter of Odell, 1 Misc. 390, 23 N. Y. Supp. 143. 84 Matter of Donlon, 66 Hun, 199; 21 N. Y. Supp. 114. A decree on an accounting will be opened on the pe- tition of one who, though entitled to notice of the proceeding, was not notified of it. (Wells v. Wallace, 2 Redf. 58; Matter of Fuller, 86 Hun, 47; 33 N. Y. Supp. 194; Matter of Hodgman, 82 Hun,"419; 31 N. Y. Supp. §§ 55, 56. JuEiSDicTiOTT, Etc., of Subrogates' Cotjets. 40 § 55. Application, how made — A question lias arisen -whether an application to set aside a decree probating a will of " personal and real property " (on the ground of a later will) must be made under subdivision 6 of this section, or under section 2647, which provides for setting aside a decree probating a will of " personal property." Such application must be made under the former section.*^ A proceeding to vacate a decree under subdivision 6 may perhaps be initiated by a notice of motion or an order to show cause f^ but the better practice is to petition for a citation.^'^ While laches may defeat a motion to open and modify a decree, as where a motion to modify a decree as to commissions was made eighteen months after its entry,^^ yet the surrogate's exercise of the power to open decrees is not subject to the limitations of time prescribed by section 1282 for motions to set aside judgments for irregularity, or for error in fact not arising upon the trial, pre- scribed by section 1290.*^ § 56. To complete unfinished business of predecessor. — The eighth subdivision, authorizing a surrogate to complete the un- finished business of his predecessor in ofiice, is supplemented by another provision giving such authority to a surrogate on the re- vocation of the order appointing his substitute in certain cases.*" A similar provision of the Revised Statutes,®^ to the effect that " upon the office of any surrogate becoming vacant, his successor shall have power and authority to complete any business that may have been begun or that was pending before such surrogate," was held to apply to all cases where the actual incumbent vacates, the office for any cause, and that the surrogate had the power to take up the probate of a will at the point where it was left by his pre- decessor in office, complete the proofs, and then decide the ques- 263.) But see Matter of Tilden, 56 payment. (Matter of Gilman, 7 St. App. Div. 277; 67 N. Y. Supp. 879, Rep. 321.) where it was suggested that the 85 Matter of Hamilton, 2 Connoly, power to vacate a decree is to be ex- 268 ; 20 N. Y. Supp. 73. ercised only on behalf of a party 86 Cluff v. Tower, 3 Dem. 253. to the proceeding, as one not a party 8T See Matter of Hamilton, 2 Con- is not bound by its provisions. See noly, 268 ; 20 N. Y. Supp. 73, as to also Matter of White, 52 App. Div. 223. parties to be cited. One to whom an executor has assigned 88 Ricard v. Laytin, 2 Dem. 587 ; his commissions before they were as- Story v. Dayton, 22 Hun, 450; Matter certained and liquidated has no in- of Goolc, 22 N. Y. Supp. 969. terest which will entitle him to move 89 Matter of Flynn, 136 N. Y. 287; to vacate a decree refusing commis- Matter of Henderson, 157 id. 423; 23 sions to such executor. (Matter of Civ. Proc. Rep. 389. See Matter of Worthington, 141 N. Y. 9; 56 St. Rep. Woods, 70 App. Div. 321. 561.) A surrogate who has allowed 90 Co. Civ. Proc, § 2489, as amended funds deposited in a land company to 1889. See § 17, ante. be paid out has power to direct a re- 91 3 R. S. 223, § 11. 4:1 JuEiSDicTioN, Etc., of Subeogates' Couets. §§ 57, 58. tion at issue upon the whole evidence, including that taken before his predecessor.^^ § 57. Other statutory powers. — By section 2538, it is provided that " except where a contrary intent is expressed in, or plainly implied from, a provision of" chapter 18 of the Code, relat- ing to Surrogates' Courts, — the provisions of certain other chap- ters, to wit, " title first and articles third and fourth of title sixth, of chapter eighth, and articles first and second of title third of chapter ninth," apply to Surrogates' Courts, and to the proceed- ings therein, so far as they can be applied to the substance and subject-matter of a proceeding, without regard to its form.®^ Sur- rogates' Courts have, therefore, all the powers possessed by other courts of record enumerated in the title of the Code concerning " mistakes, omissions, defects, and irregularities." Thus the ir- regularity of a failure to subscribe a petition for probate may be cured by amendment, and the petitioner permitted to subscribe nunc pro tunc.^''' So a variance between the relief prayed for in a petition and that specified in the citation issued thereon, is curable by amendment;®^ and so is a variance between a citation and the copy served.^^ § 58. Power to make rules — The surrogate may of course make rules for the conduct of the business of his court; but it is clear that he cannot limit a power conferred upon him by statute, and 92 Matter of Martinhofif, 4 Redf . citation issued to persona who are 286; Reeve v. Crosby, 3 id. 74; Mat- executors, but not as such, may be ter of Espie, 2 id. 445; Johnston v. amended by the surrogate so as to Smith, 25 Hun, 171; Matter of John- add to the names of the executors son, 27 Misc. 167; 58 N. Y. Supp. 601; their representative character. (Mat- Matter of Lawrence, id. 597 ; Matter of ter of Soule, 46 Hun, 661 ; aflf'd 109 Winslow, 12 Misc. 254; 34 N. Y. Supp. N. Y. 662.) A petition of an infant 637 ; Matter of Carey, 24 App. Div. next of Icin by her general guardian for 531; 49 N. Y. Supp. 32. In McNaugh- a compulsory accounting by an admin- ton v. Chave (5 Abb. N. C. 225), where istrator was simply signed by the a iinal accounting was had during the guardian and verified by him. A cita- term of a surrogate, and the auditor's tion was issued to the administrators, report was iiled before he went out of and on the return day they appeared office, but the decree was signed by the generally and objected to the sufficiency succeeding surrogate, and not by the of the petition. Held, that the signa- immediate successor of the one before ture of the guardian at the end of the whom the accounting was had, held petition by reference to the body of the that the decree was invalid. instrument would be deemed to have 93 See title second of chapter V, post, been written in that capacity, and that as to power of the surrogate to make such signing was at most an irregu- disoovery, issue a commission to take larity which was cured by the appear- testimony, etc. ance of the administrators who should 94 Matter of Swift, 20 Daily Reg. have appeared specially if they de- 100 (N. Y. Surr. Ct. 1881). sired to take the objection. (Matter 95 Spencer v. Popham, 5 Redf. 425. of Hurlburt, 43 Hun, 311, citing 96Pryer v. Clapp, 1 Dem. 387. A Hyatt v. Seeley, UN. Y. 52, 58.) §§ 59, 60. JuEiSDicTioii, Etc., of Stjreogates' Cotjkts. 42 a rule so made has no bearing whatever upon the validity of an order made by him.^^ TITLE EOUETH. CONCUEEENT AH^D EXCLUSIVE JTJEISDICTIOIf. § 59. Jurisdiction as to probate of wills It may be stated generally, with certain exceptions hereafter mentioned, that the Surrogate's Court possesses jurisdiction, exclusive of 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, mis- take, and other circumstances relating to the factum of the instru- ment propounded ; and, in general, mistakes and variances be- tween the will, as prepared, and instructions for preparing it, can be reformed only by him.*^ Before the Revised Statutes of 1830, probate of wills of real property could be had only in the Supreme Court or County Common Pleas.*'* But those statutes conferred jurisdiction to take probate of such wills (not lost or destroyed) iipon Surrogates' Courts.-' Until 18Y0, lost or de- stroyed wills, whether of real or personal estate, could not be proved in these courts.^ The reniedy was by a proceeding in the Supreme Court, under the statute.' In that year, the surrogate of l^ew York county was authorized to admit to probate a lost or destroyed will of real or personal estate,* and the Code of Civil Procedure extends this power to all surrogates.'' § 60. Jurisdiction of other courts to determine validity, etc., of wills. — The statute permits the validity, construction, or effect,, under the laws of this 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, to be de- termined in an action, brought for that purpose, in like manner as the validity of a deed purporting to convey land may be deter- mined.® The provision is accompanied with a saving clause to prevent a conflict with the jurisdiction of the surrogate under an- other section of the Code,'' already referred to, in case of testa- 9T Matter of Monell, 22 Civ. Proc. 2 Bulkley v. Redmond, 2 Bradf . 281 ; Rep. 377. Hook v. Pratt, 8 Hun, 102. 98 Burger v. Hill, 1 Bradf. 360. See 3 2 R. S. 67, § 63. Vreeland v. McClelland, id. 393. *L. 1870, c. 359, § 8. 89 For the statute regulating proof B Co. Civ. Proc, § 2621. of wills of real property before the eCo. Civ. Proc, § 1866; L. 1879, R. S., see 1 R. L. of 1813, 365, § 7, c 316. and introduction to this volume. 7 § 2624. 1 2 R. S. 58, 59. 43 Jurisdiction, Etc., of Sueeogates' Couets. § 61. mentary disposition of chattel interests in real property. The phraseology of the present statute removes any doubt, which may have existed under the original,* whether the court could go fur- ther than to determine the proper construction of the will,^ and apparently creates an exception to the former rule, that the juris- diction conferred was restricted to wills of real estate, and that legatees could not maintain an action for the construction of a will.-^" It is permitted, by another provision of the Code, to im- peach a devise, as an incident to an action for partition, to which the devise, if valid, would be a bar. The section provides, sub- stantially, that a person claiming a share in real property, as heir of one who died holding and in possession of the same, may main- tain an action for partition, notwithstanding an apparent devise thereof to another, provided he alleges and proves that the apparent devise is void.-'^ The allegation, in the complaint, of the invalidity of the devise, is essential to jurisdiction ;^^ and the invalidity must extend to the entire will or devise.^^ The validity of a devise may also be questioned incidentally in an action, under the statute, to determine conflicting claims to real property, and in an action of ejectment, and, also, in a proper case, in a suit quia timet. But the remedy of a direct action to determine the validity of the devise, which is now given by statute, as above, has always been fur- nished by courts of equity.^* So, too, a court of equity, where the remedy at law is not clear and adequate, will entertain an action to set aside a will and its probate, alleged to have been procured by fraudulent connivance and collusion. -^^ § 61. Establishment of wills by action. — The only courts in this State having authority to issue letters testamentary or of admin- istration, are Surrogates' Courts. Generally, such letters are is- sued pursuant to the decree of the Surrogate's Court, but there are cases where they are issued by it, pursuant to a direction con- tained in the judgment of another court, rendered in an action to establish the will. The cases in which such an action lies, are pre- scribed by the Code of Civil Procedure,'® which makes important 8L. 1853, c. 238, § 1. w Story's Eq. Jur., § 1445 et seq.; 9 See Marvin v. Marvin, 11 Abb. (N. Chapman v. Eodgers, 12 Hun, 342. S.) 102; Knox v. Jones, 47 N. Y. 389. And see Bailey v. Briggs, 56 N. Y. 414. 10 See Woodruff v. Cook, 47 Barb. See chapter VI, tit. 2, post. 304. See chapter VIII, post. 15 De Bussierre v. Holladay, 4 Abb. 11 Co. Civ. Proc, § 1537. N. C. 113. See chapter VII, post. 12 Voessing v. Voessing, 12 Hun, 678. le Co. Civ. Proc, § 1861. See ehap- 13 McKeon v. Kearney, 57 How. Pr. ter VI, tit. 2, post. 349. § 62. JuEiSDiCTioN, Etc., of Subrogates' Couets. 44 and beneficial changes in the pre-existing statutes, and provides for cases which may, for the purpose of comparison with the regu- lations as to surrogates' jurisdiction, be conveniently arranged in three classes : (1) Wills of realty or personalty, so executed as to be admissible to probate by a surrogate, and the originals of which exist, but are without the State and inaccessible.-'' In this class of cases the Surrogates' Courts have no jurisdiction. (2) Wills of like description, which have been lost or destroyed. Here the jurisdiction of the Surrogate's Court is concurrent. (3) Cer- tain foreign wills of personalty, executed with prescribed for- malities, but which could not be admitted to probate by a surro- gate.-'* The statute revised in the section last quoted ^^ made special provision for a commission to be issued out of the Court of Chancery ; but this is now omitted, as chapter 9 of the present Code contains ample regulations with respect to a commission which may be issued in a proper case in any action. § 62. Jurisdiction to compel accounting, etc. — Any court of equity has jurisdiction to compel executors or administrators, who are at law trustees, to render an account of their proceedings, dis- closing assets and the manner of the application thereof, and will require the due performance of their duty,^" and, in general, will entertain a suit to direct and control the action of executors, ad- ministrators, and other trustees. ^^ But it does not follow that such a court is bound to exercise the jurisdiction. It may decline to do so, where the powers of the Surrogates' Courts are adequate to the settlement of the estate, and a clear case of necessity for the inter- position of a court of equity is not presented.^^ 17 It is not requisite, as it was un- 161. See § 908, post. If no proeeed- der the former statute, that the -will ing is pending in the Surrogate's should be " in possession of a court Court, though it has concurrent juris- or tribunal of justice in another diction of the subject-matter, in which country or State." See Matter of relief may be had, the Supreme Court Diez, 56 Barb. 591; 50 N. Y. 88. will entertain jurisdiction. (Ludwig 18 Compare Co. Civ. Proc, § 2611. v. Bungart, 48 App. Div. 613; 63 N. Y. 19 2 R. S. 67, §§ 63a, 68a. Supp. 91.) But the Supreme Court 20 Christy v. Libby, 2 Daly, 418; 5 has no authority to stay proceedings Abb. Pr. (N. S.) 192; Landers v. Staten on an accounting in the Surrogate's Island R. Co., 53 N. Y. 450. Court, upon the commencement of pro- 21 See -Wood v. Brown, 34 N. Y. 337. cpedings therefor in the Supreme In like manner, such a. court has juris- Court in which no injunction was de- diction of proceedings to compel a manded, no fraud is sho-wn, and it is special guardian appointed to sell the not apparent that the exercise of equi- real estate of an infant, to account table powers will be necessary; and in for and pay over moneys received by any event the application for «, stay him as such guardian. (Spelman v. should be made to the Surrogate's Terry, 74 N. Y. 448.) Court. (Rutherfurd v. Myers, 50 App. 22 Seymour v. Seymour, 4 Johns. Div. 298; 63 N. Y. Supp. 939.) Ch. 409; Wager v. Wager, 89 N. Y. 45 Jurisdiction, Etc., of Suekogates' Couets. §§ 63-64a.. § 63. Jurisdiction of Federal courts. — Federal courts, as courts of equity, will exercise concurrent jurisdiction with the State courts of equity, in matters relating to probate, the validity and construction of wills, etc., in a case between the proper persons. But these courts cannot be said to possess the special jurisdiction of probate courts. A proceeding in a probate court is not within the designation of cases at law or in equity between parties of different States, of which Federal courts have concurrent jurisdic- tion with the State courts, and consequently will not be removed to the Federal court, under the Judiciary Act of Congress. But whenever a controversy in a suit between such parties, arises re- specting the validity or construction 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.^^ § 64. Concurrent and exclusive jurisdiction of surrog^ates as among themselves. — Except in the cases before mentioned, the Surrogate's Court of the proper county has exclusive jurisdiction to take proof of wills which can be proved in this State.^* It may occasionally happen, however, that more than one surrogate may be asked to exercise power to take proof of a will and grant letters, as, e. g., where the deceased is not an inhabitant of the State, and dies out of it, leaving assets in several counties. In such a case the surro- gate of a county in which he left assets, as will be seen in the chap- ter on Probate, may take proof of his will. TITLE FIFTH. DEPOSIT AND CUSTODY OF WILLS. § 64a. Deposit of will by testator — It is not necessary that a will which it is desired to prove should be produced from any special custody or have been deposited by the testator in any particular 23 Per Field, J., in Gaines v. Fuen- decedent, was removable to the Fed- tes, 2 Otto, 10. Accordingly it was eral court, under the Judiciary Act of held, in that case, that a suit in a 1867. And so an action to establish State court, to revoke a will and re- a lost will, brought in a State court, call the probate on the ground of is removable. (Southworth v. Adams, alleged falsity and insufficiency of the 23 Alb. L. J. 36.) evidence on which it was granted, 24 Burger v. Hill, 1 Bradf. 360. See and the incapacity of the defendant chapter VI, post. to inherit or take by devise from the § 65. JxiEiSDicTioN, Etc., of Sukkogates' Couets. 46 place. Provision has been made by the statute, however, for the deposit, by a testator, of a will made by him and for its custody, in the possession of certain public officers. By the statute, every county clerk and surrogate, and the register of deeds in the city and county of New York (upon payment of fees), is required to receive and deposit in his office any last will or testament which any person may deliver to him for that purpose, and to give a written receipt therefor to the person depositing the same.^ The fee of a county clerk or register, upon such a deposit, is six cents.^® A surrogate is not entitled to any fee.^^ Such will must be inclosed in a sealed wrapper, so that the contents thereof cannot be read, and have indorsed thereon the name of the testator, his place of residence, and the day, month, and year when delivered ; and must not, on any pretext whatever, be opened, read, or ex- amined, until delivered to a person entitled to the same, as di- rected by the statute.^ It is usual to indorse upon the wrapper the name of the executor designated in the will. The statute directs that a will so deposited shall be delivered 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 death, 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.^* § 651 Opening will on death of testator. — If such a will has been deposited with a surrogate, or been delivered to him, then upon the death of the testator the surrogate is required to publicly open and examine it, and make known its contents and file it in his office, there to remain until it has been duly proved, if capable of proof, and then to be delivered to the persons entitled to the custody thereof ; or until required by the authority of some competent court to produce it in such court.^" In the surrogate's office of New York county, the administration clerk is furnished with the names of persons whose wills are on deposit, in order to prevent the grant- ing of letters of administration upon their estates. In practice, it is found that testators seldom avail themselves of the provisions 25 2 R. S. 404, I 67. For provision 27 Id., § 2567. relating to New York city, see L. 28 2 R. S. 405, § 68. 1882, c. 410, i§ 1758-1761. 29 2 R. S. 405, § 69. 26 Co. Civ. Proc, § 3304, paragraph so 2 R. S. 405, § 70. nineteenth; id., § 3306. 47 Jurisdiction, Etc., of Surrogates' Courts. § 66. of the statute, and wills are generally found in tlie possession of the executors or attorneys of the deceased, or among his own pri- vate papers. TITLE SIXTH. DEPOSIT OF MONEYS AND SECURITIES. § 66. Payment of money into court. — In certain proceedings, the statute requires the payment of money into the Surrogate's Court, or the deposit of a security, for the payment of money, with him. The Code provides,^^ that in such case the same must be paid to or deposited with the county treasurer of the county, to the credit of the fund, or of the estate, or of the special proceeding; unless the statute contains special directions for another disposition thereof. Each security, so deposited with the county treasurer, must be held and disposed of by him, subject to the direction of the Surrogate's Court; except that he must, unless otherwise so directed, collect the principal and interest secured thereby. Ail money collected by, or paid to, the county treasurer, as prescribed in this section, must be held, managed, invested, and disposed of by him, in like manner as money paid into the Supreme Court in an action pending therein. The regulations contained in the general rules of practice, as specified in section 744 of the Code, and the provisions of title 3 of chapter 8 of the Code, apply to money paid to and securi- ties deposited with the county treasurer, except that the Sur- rogate's Court exercises, with respect thereto, or with respect to a security, in which any of the money has been invested, or upon which it has been loaned, the power and authority conferred upon the Supreme Court by section 747 of the Code. Where real property, or an interest in real property liable to be disposed of, is sold, in an action or special proceeding, speci- fied in the Code, to satisfy a mortgage or other lien there- upon, which accrued during the decedent's lifetime; and letters testamentary or letters of administration, upon the decedent's estate, were, within four years before the sale,*^ issued from a Surrogate's Court of the State, having jurisdiction to grant 31 Co. Civ. Proc, § 2537, as amended interest received. ( Matter of Coifin, 1882. As to liability of surrogate on 36 Hun, 236.) his bond for deposit moneys, see ante, azxhese words refer to the date of § 30. The surrogate is liable not only the sale and not to the commencement for the amount of the principal of the of the action or proceeding resulting deposit, but where he places the fund in the sale. (White v. Poillon, 25 at interest, he is accountable for the Hun, 69.) § 66. JuEiSDicTioiir, Etc., of Sueeogates' Oouets. 48 them; the surplus money must he paid into the Surrogate's Court from which the letters issued, pursuant to section 2537, and the receipt of the county treasurer is a sufficient discharge to the person paying the money. If the sale was made pursuant to the directions contained in a judgment or order, the surplus remaining after payment of all liens upon the property, chargeable upon the proceeds, which ex- isted at the time of the decedent's death, must be so paid. If the sale was made in any other manner, the surplus, exceeding the lien to satisfy which the property was sold, and the costs and expenses must, within thirty days after the receipt of the money from which it accrues, be so paid over by the person receiving that money. ^* 33 Co. Civ. Proc, § 2798, as amended ings for its distribution among those 1893. This section refers to payment having claims on it. (Comey v. Clark, prior, and not subsequent, to proceed- 23 St. Rep. 402.) CHAPTER III. COMMENCEMENT OF PROCEEDINGS; APPEAR- ANCES, PLEADINGS, ETC. TITLE FIEST. COMMENCEMENT OF PEOCEEDINGS, INCLUDING SEEVIOE OF PEOCESS. § 67. Nature of proceedings.— All proceedings in a Surrogate's Court are special proceedings, as distinguished from actions. It is true that the essential difference between an action and a special proceeding is nowhere clearly defined;^ but, under the present Code, there are separate and uniform rules with respect to the initial process, which, in the case of an action, is always,^ and, in the case of a special proceeding, is never, a summons. § 68. Commencement of special proceeding. — It has been seen that the surrogate has power to issue citations to parties, and, in a case prescribed by law, to compel the attendance of a party.^ According to the former practice, the original process issuing from a Surrogate's Court, whereby a special proceeding was com- menced, varied in different cases, being either (1) a citation, or (2) an order to show cause, or (3) a summons;* while, under the present statute, it is uniformly a citation. The Code provides, that " except in a case where it is otherwise specially prescribed by law, a special proceeding in a Surrogate's Oourt must be com- menced by the service of a citation." ® The foregoing exception iCo. Civ. Proc, §§ 3333, 3334. And 2 Co. Civ. Proc, §§ 416, 2876. see People v. County Judge of Rensse- 3 Co. Civ. Proe., § 2481, subd. 1. laer, 13 How. Pr. 398; People v. Col- *The process of summons was, be- borne, 20 id. 378; People v. Lewis, 28 fore the Code, de!6ignated in the statute id. 159; Belknap v. Waters, 11 N. Y. as the proper process in two proceed- 477. Apparently, the only line of de- ings only, to wit: the compelling the mareation established by the sections return of an inventory (2.R. S. 85), cited is that an action is ordinary, and the compelling of an executor to while a special proceeding is not. But appear and qualify (2 R. S. 70). A the distinction between " ordinary '' citation is now the proper process, and "extraordinary" remains unde- 5 Co. Civ. Proc, § 2516. And see Id., termined. § 416. 4 [49] §§69,70. CoiiiiENCEMENT OF Pboceedings J 50 does not, apparently, imply that there are cases in which process other than a citation may now be employed for the commence- ment of an original proceeding in a Surrogate's Court, but seems rather to refer to other clauses of the Code, to the effect that the presentation of a petition for the citation is a commencement of the proceeding for the purpose of giving to the court juris- diction to do any act which may be done before actual service of the citation, e. g., to direct service thereof in a particular manner,® or for the purpose of applying the Statute of Limita- tions;'' and that an appearance may be a waiver of service.* § 69. Proceeding by motion, or order to show cause. — It is not always easy to distinguish an original proceeding, which can only be commenced by a citation, from other proceedings which may be initiated by an order to show cause, or a simple motion. It is held, for instance, that a proceeding to vacate a decree entered upon an accounting may be instituted by a motion or order to show cause,® even where a part of the relief sought is more extended than can be granted in the proceeding.-"' Al- though Co. Civ. Proc, § 780, for shortening the time for notice of motion, is not directly applicable to Surrogates' Courts, an order to show cause is available there to shorten time of notice. ■'■'^ § 70. What is deemed commencement of proceeding. — The pre- sentation of a petition to a Surrogate's Court, instead of the issuing of a citation pursuant to its prayer, is deemed the com- mencement of the special proceeding, within the meaning of the provisions of the Code, which limit the time for the commence- ment thereof; but only in case the citation is, within sixty days after the presentation, served personally within the State, upon the adverse party, or upon one of two or more adverse parties, who are jointly liable or otherwise united in interest; or, within the same time, the first publication thereof is made, pursuant to an order granted by the surrogate for that purpose. ^^ 6 Co. Civ. Proc, § 2.516. pare Id., § 399, which prescribes an T Co. Civ. Proc, § 2517. And see Id., analogous rule in respect to a civil ae- § 399. tion. As to effect of a general appear- 8 Co. Civ. Proc, §§ 424, 2528. See ance as a waiver, see post, § 84. . An Commissioner Throop's note to § 2516, executor is not so " united in interest " and post, § 84. (under this section) with the residu- 9 Cluff V. Tower, 3 Dem. 253. ary legatee that service of a citation, 10 Matter of Halley, N. Y. Law J., in a proceeding to revoke the probate Mar. 1, 1893. See Matter of Hamil- of a will, upon him alone is sufficient, ton, 2 Connoly, 268. and this is so notwithstanding the ex- 11 Matter of Pilley, 47 St. Eep. 428. tension of time of the return of the 12 Co. Civ. Proc, § 2517. And com- citation, the time of service thereof 51 Appeakances, Pleadings, Etc. §§ 71-T3. § 71. Jurisdiction once acquired continues. — Upon the presenta- tion of the petition, the court acquires jurisdiction to do any act which may be done before actual service of the citation.-'^ Hav- ing once acquired it, jurisdiction is retained until the proceeding is finally disposed of by a decree, or regularly discontinued. A proceeding is not throvt^n out of court by the failure to adjourn a hearing to a day certain.-'* The proper practice in such a case is an application or notice for another hearing, or a further examination of vs^itnesses, as the case may be, and not the insti- tution of a second proceeding for the same relief. For where there are two proceedings pending between the same parties for the same object, the proceeding first commenced is a bar to the second.^® § 72. Petition, a preliminaxy to citation. — The citation is " is- sued upon the presentation of a petition." ^^ But it is not neces- sary, in every case, that the petition should be in writing. To obtain a citation for some purposes, e. g., to prove a will, a writ- ten petition must be presented to the surrogate, setting forth the facts, and praying for the issuing of a citation, etc.-'^ The former statutes were, in many instances, entirely silent upon the question of writing, and, where such was the case, a written petition was not necessary to give the surrogate jurisdiction.-'® The surrogate, however, always had a right to require the ap- plication to be presented to him in writing, and verified;-'® and this right is now ex-oressly confirmed by statute, as mentioned in the next title. § 73. Issuing of the citation. — It was formerly the rule, the- oretically at least, to issue the citation only upon an order of the surrogate regularly entered in the proceeding, upon an ap- plication made. In practice, however, this order was not a neces- sary prerequisite to the issuing of process; and if the applica- tion of a party for a citation was favorably entertained, the sur- rogate issued the citation at once, the order therefor being en- not being thus extended (Matter of 38 Barb. 364; Matter of Spreen, 1 Civ. Dustan, 2 Dem. 313; citing McKen- Proe. Rep. 375. zie V. L'Amoureux, 11 Barb. 516; 15 Lewis v. Maloney, 12 Him, 207. Jones V. Felch, 3 Bosw. 66; Bueknam 16 Co. Civ. Proc., § 2516. V. Brett, 35 Barb. 598). See Matter 17 Co. Civ. Proe., § 2614. of Bonnett, 9 N. Y. Supp. 459; Foun- 18 See Smith v. Remington, 42 Barb. tain V. Carter, 2 Dem. 313. 75. 13 Co. Civ. Proe., § 2516. w Foster v. Wilber, 1 Paige, 537. 14 Co. Civ. Proe., § 2481, subd. 8 ; See Bolton v. Jacks, 6 Eobt. 166. Oilman v. Gilman, 1 Redf. 354, affd., § 74. COMMENCEMEIfT OF PEOCEEDIIfGS ; 52 tered afterward in a book kept for that purpose. As the cita- tion is itself a mandate of the Surrogate's Court, a rule requiring another mandate^" to be granted, as a condition of the issuing of the former, is of doubtful utility, although some surrogates insist upon, an order being entered before issuing a citation. § 74. Form and contents of citation — Except as hereinafter mentioned, the statute does not require that a citation should be in any particular form. It is subject to the' ^general pro- visions of the Code, requiring writs and process to run in the name of the People of the State, to be in the English language, etc., and regulating the testing, sealing, and subscription or in- dorsement thereof.^^ It must be made returnable before the surrogate from whose court it was issued, " upon a day certain, designated therein, not more than four months after the date thereof;^ and must specify whose estate or what subject-matter is in question. The names of all the persons to be cited, as far as they can be ascertained, must be contained in the citation." ^^ The unauthorized insertion of the name of an additional party to be served, voids the citation as to such person, and service of the citation does not give the court jurisdiction over such party.^* Where the name, or part of the name, of either of them cannot be ascertained, that fact must be stated in the cita- tion. ^^ It is issued under the seal of the court, and subscribed or witnessed by the surrogate or his clerk. The contents of the citation vary in accordance with the nature of the proceeding in which it is employed. In some cases, as in the case of a cita- tion to attend the probate of a will, the statute requires certain particular facts to be stated in the citation, and in other cases it is silent on the subject.^® For information on this head, the various proceedings must be consulted, and the forms in the appendix. But, in general, in addition to the mandatory clause, the citation need contain nothing more than the names of the parties cited, a statement of the time and place of appearance, and a general reference to the nature of the proceedings.*^^ 20 See definition, Co. Civ. Proc, 27 Where, for instance, a petition § 3343, subd. 2. asks for the removal of a guardian 21 Co. Civ. Proc., § § 22-24. and appointment of a successor, on the 22 Co. Civ. Proc, § 2519. ground that the infant's welfare will 23 Matter of Washburn, 12 Misc. be promoted thereby, a second citation 242 ; 34 N. Y. Supp. 44. to accomplish the latter purpose is un- 24 Boerum v. Betts, 1 Dem. 471. necessary. Matter of Moore (18 Week. 23 Co. Civ. Proc, § 2519. Dig. 42). 26 Co. Civ. Proc, § 2616. 53 Appeaeances, Pleadings, Etc. §§ 75, 76. § 75. Citation to clas^ where names are unknown. — It may often happen, however, that the name of a person entitled to be cited is unknown to the prosecuting party. To meet the requirements of such a case, the statute provides that " where persons to be cited constitute a class, the petitioner must set forth, in an affi- davit, the name of each of them, unless the name, or part of the name, of one or more of them cannot, after diligent inquiry, be ascertained by him; in which case, that fact must be set forth, and the surrogate must, thereupon, inquire into the matter. For the purpose of the inquiry, he may, in his discretion, issue a sub- poena, requiring any person to attend before him to testify re- specting the matter. If he is satisfied upon the allegations of the petitioner, or after making the inquiry, that the name of one or more of the persons to be cited cannot be ascertained with reasonable diligence, the citation may be directed to that person or those persons, by a general designation, showing his, her, or their connection with the decedent, or interest in the property or matter in question; or otherwise sufficiently identify- ing the person or persons intended. A citation, thus directed, has the same force and effect as if it was directed to the person or persons intended, by their names; and where the person or persons so intended are duly cited, in any manner prescribed by law, the decree binds them, as if they were named therein. A petition, duly verified, is deemed an affidavit within the mean- ing of this section." ^ § 76. Service of citation within the State. — A surrogate's cita- tion or other mandate may be served and^executed in any county of the State. The Code (§ 2520) prescribes the manner of ser- vice upon a party within the StateT** The same proof is re- 28 Co. Civ. Proc, § 2518. See c. IV, 5. Citation to attend judicial settle- post. , ment of account. 6. Citation to tem- 29 See Wetmore v. Parker, 52 N. Y. porary administrator to account. 7. 450; Kellett v. Eathbun, 4 Paige, 102; Citation to principal in a bond to give Board v. Board, 4 Abb. Pr. 295; Mead new sureties in place of sureties who V. Miller, 3 Dem. 577 ; Matter of Car- apply to be released. 8. Order to tem- hart, 2 id. 627 ; Boerum v. Betts, 1 id. poiary administrator to make deposit. 471 ; Harrison v. Clark,' 87 K Y. 572. 9. Order to executor to appear and By the rules of the Surrogate's Court qualify. 10. Order requiring the ex- of New York county no mandate is eeutor or administrator to file inven- deemed duly served, unless copies of tory. 11. Why an account should not the petition or other paper or papers be made on surrogate's motion (Rule upon which it shall be issued, and III, Mar. 16, 1888). upon which relief is sought, shall be In proceedings instituted by the pub- served with it, except the following: lie administrator of New York county 1. Citation to attend probate. 2. Ci- a citation directed to a nonresident tation to revoke probate. 3. Citation alien may be served upon the consul of on application for administration, his country (L. 1898, c. 230, § 19), 4. Citation for intermediate account. §§77,78. Commekcemejs^t of Peoceedings; 54 quired of service of a citation, or a subpoena, issued from a Sur- rogate's Court, as of service of a summons issued out of the Supreme Court. 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, ac- companied with proof, by affidavit or otherwise, of the genuine- ness of his signature.^" § 77. Service upon corporations, infants, and incompetents. — Ser- vice upon an infant under the age of fourteen years, or on a person judicially declared to be incompetent to manage his af- fairs by reason of lunacy, idiocy, or habitual drunkenness, or on a corporation, is to be made in the manner prescribed for per- sonal service of a summons in an action upon such a person, or upon a corporation.^^ But in the case of such incompetents, the surrogate is given discretion to make an order, with or with- out an application therefor, requiring a copy of the citation to be delivered, 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 delivery.*^ It is not to be understood, how- ever, that such an order, and an additional service under it, dis- pense with the necessity of a service upon the parent, guardian, etc. (in the case of an infant), as required by sections 426, 2526, of the Oode.^^ § 78. Substituted service.— Where it appears, by affidavit, that proper and diligent effort has been made to serve the .citation 30 Co. Civ. Proc, § 2532. The juris- mere recital in a decree upon an ac- diction of the surrogate is complete counting, that certain infant legatees when service is made within the State had been duly served with the citation, eight or fifteen days before the return is not conclusive of such service, day, as the case may be. (Matter of (Hood v. Hood, 85 N. Y. 561.) Washburn, 12 Misc. 242; 34 N. Y. S2Co. Civ. Proc, § 2527. By L. Supp. 44.) Personal service made 1882, c. 340, whenever in any proceed- within this State, upon a nonresident, ing or trial it becomes necessary to upon whom service has been ordered determine the age of a child, the child to be made by publication, is void. It may be produced and exhibited to the should be served by publication. The court or jury to determine its age, and defect, however, is cured by appear- the court may direct an examination ance and no objection. (Matter of by one or more physicians, whose opin- Porter, 1 Misc. 489; 22 N. Y. Supp. ion shall also be competent evidence 1063.) See Matter of Merritt, 5 upon the question of age. Dem. 544. S3.jjjatter of Haug, N. Y. Law J., 31 Co. Civ. Proc, § 2526. Service on July sT'.^gi. See Matter of Cort- an infant under fourteen, to attend wright, 3 Dem. 13, to the effect that probate proceeding, by serving a copy notwithstanding the order for an addi- on the infant's mother alone, is de- tional service, the citation must also fective, and is not cured by subsequent be served upon a nonresident by pub- appointment of guardian ad litem, lication, etc, (Hogle V. Hogle, 49 Hun, 313.) A 55 Appeaeances^ Pleadings, Etc. §§ 79, 80. personally, within the State, upon a resident of the State, and that the person to be served cannot be found, or, if found, that he evades service so that it cannot be made, the surrogate may make an order directing service to be made as in the case of sub- stituted service of a summons, in an action in a court of record.** § 79. Service by publication, or without the State. — The Code provides that " the surrogate from whose court a citation is issued may make an order, directing the service thereof without the State, or by publication, 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; or (2.) Where the person to be served, being a resident of the State, has departed therefrom, with the intent to defraud his creditors, or to avoid the service of process; or (3.) Where the person to be served, whether an adult or an infant, is a resident of the State, but is temporarily absent therefrom; or (4.) Where the person to be served is a resident of the State, or a domestic corporation, and an attempt was made to serve a citation, issued from the same Surrogate's Court, upon the presentation of the same petition, before the expiration of the limitation applicable to the enforce- ment of the claim set forth in the petition, as fixed in chapter fourth of this act; and the limitation would have expired, within sixty days next preceding the application for the order, if the time had not been extended by the attempt to serve the citation." ^^ § 80. Service, where residence or person unknown. — The surro- gate may also make an order, directing the service of a citation without the State, or by publication, in either of the following cases: (1.) Upon a party to whom a citation is directed, either by his full name or part of his name, where the surrogate is satisfied, by afiidavit, that the residence of that party cannot, after diligent inquiry, be ascertained by the petitioner. (2.) Upon one or more unknown creditors, next of kin, legatees, heirs, devisees, or other persons, included in a class to whom a citation has been directed, designating them by a general description, as prescribed in section 2518 of the Oode.^® 34 Co. Civ. Proc, § 2521. For the court of record. See Stevens v. Stevens provisions as to substituted service of (3 Redf. 507), as to the power of thf summons in an action, see Co. Civ. court before the present Code to order Proc, §§ 436, 437. publication independently of statute. 35 Co. Civ. Proc, § 2522, as amended 36 Co. Civ. Proc, § 2523. See § 75, 1881. Compare Id., § 438, relating to ante, for the provision of § 2518, re- service of a summons issuing out of a ferred to. It will be observed that the 81. Commencement of Proceedings ; 56 § 81. Contents of order for publication, etc Where an order directing the service of a citation without the State, or by publica- tion, is made, the party applying therefor must produce proof, by afEdavit or otherwise, to the satisfaction of the surrogate, that the case is one of those specified in either section 2522 or sec- tion 2523 of the Code. The order must direct that service of the citation, upon the person named or described in the order, be made by publication of the citation in two newspapers for a specified time, which the surrogate deems reasonable, not less than once in each of six successive weeks, unless, from the petition, it appears that the estate amounts to less than $2,000, in which case only one newspaper shall be designated ;^^ or, at the option of the petitioner, by delivering a copy of the citation, without the State, to each person so named or described, in person; and, if the per- son to be served is an infant, under the age of fourteen years, also to the person with whom he is sojourning; or, if the service is made upon a corporation, to an officer thereof, specified in section 431 or 432 of the Code. It must also contain either a direction that, on or before the day of the first publication, the petitioner deposit, in a specified post-office, a copy of the citation and of the order, contained in a securely closed post-paid 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 post- paid wrapper, directed to the person with whom such infant is sojourning; or a statement that the siirrogate, being satisfied, by the affidavits upon which the order was granted, that the peti- tioner cannot, with reasonable diligence, ascertain a place or places where the person to be served would probably receive matter transmitted through the post-office, dispenses with the deposit of any papers therein.^^ latter provision relates exclusively to the Code, relating to a like order in unknown names; but this subdivision respect to publication, etc., of a sum- (2) treats of unknown persons. The mons. The surrogate is not required eases are entirely distinct. See Sand- to make an order of publication in ford V. White, 56 N. Y. 359; and Co. every case where there are nonresi- Civ. Proc, § 451. dent parties; the statute merely per- 87 The service is not complete until mits him to do so. (Matter of Wash- the expiration of six full weeks from burn, 12 Misc. 242; 34 N. Y. Supp. the day of the first publication. ( Mat- 44. ) But jurisdiction over" a nonresi- ter of Koch, 12 N. Y. Supp. 94; 19 Civ. dent resnondent can be obtained only Proc. Rep. 165, following Market Nat. by voluntary appearance, or by service Bank v. Pacific Nat. Bank, 89 N. Y. of a citation in the manner specified 397.) in Co. Civ. Proc, § 2524. (Saw Mill 38 Co. Civ. Proc, § 2524, as amended Co. v. Dock, 3 Dem. 55.) 1899. Corresponds to section 440 of 57 Appeaeaxces, Pleadia'us, Etc. §§ 82-84. § 82. Service of citation without the State. — "Where service is made by delivering a copy of the citation without the State, pur- suant to an order permitting service without the State, or by publication, it must be made, if within the United States, at least thirty days, if without the United States, at least forty days, before the return day of the citation. ^^ § 83. Publication, how made. — Where the statute, or an order of the surrogate, directs the publication of a citation, notice, or other paper, or the service thereof by publication, the publica- tion must be made in a newspaper published 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 notified." *" § 84. Waiver of issuance and service of citation. — Prior to 1896 there was no provision by which the issuance and service of a citation could be waived, although the service of a citation would be rendered unnecessary by the voluntary appearance of a party.*^ But in that year *^ an entirely new provision was added to section 2528, whereby " the issue and service of a citation may be waived by a party, in any proceeding, by an instrument in writing, ac- knowledged or proved as a deed entitled to be recorded, or by personal appearance or by his attorney, with written aiithoriza- tion, executed and acknowledged as a deed, and filed in the office of the surrogate." 39 Co. Civ. Proc, § 2525, as amended sing through the surrogate's county. 1882. And see Id., § 444. Service thirty (lb.) See Matter of Porter, 1 Misc. days before the return day is sufficient, 489. although the order forpublieation was 40 Co. Civ. Proc, § 2535, in part, issued less than six weeks before the The last clause of this section, to wit: return day, rendering service by publi- that " if no newspaper is published in cation within that time impossible, the county, the citation, notice, or Publication in the State paper is un- other paper must be published in the necessary when service is made with- newspaper printed at Albany, in which out the State. (Matter of Macaulay, legal notices are required by law to be 94 N. Y. 574. ) The return day should published ; " may be considered as su- be fixed so as to allow at least thirty perseded, or impliedly repealed, by L. days' service before the return day, or 1884, c. 133, which repealed all acts service by publication, notwithstand- providing for " a State paper." See- ing a suggestion that the infant may tion 2536 was expressly repealed by L. be brought within the surrogate's 1900, u. 572. See L. 1893, c. 248, §§ 73, county for the purpose of having the 74. citation served upon him. (Matter of 41 Matter of Post, 30 Misc. 551, 64 Merritt, 5 Dem. 544. ) It seems that N. Y. Supp. 369. See Matter of Greg- a nonresident is entitled to a service ory, 13 Misc. 363; 35 N. Y. Supp. 105. of thirty days although the citation 42 L. 1896, c. 570. is served upon him while he is pas- § 85. CoMJIEiS^CEMEK'T OF PeOCEEDINGS J 58 TITLE SECOND. § 85. Eeturn of citation, appearances, etc. — On or before the return day named in the citation, the original, with proof of service, should be filed with the svirrogate. It is in only a limited number of cases that the petitioner will be granted the relief sought on the mere failure of the party cited to appear. Not- withstanding the nonappearance of the party cited, the surrogate may, and in some cases must, require proof, other than the peti- tion, before granting relief. The party may appear by attorney. Following the practice of the English Ecclesiastical Court, at- torneys for parties in Surrogates' Courts were formerly called proctors, but this is a term unknown to our law, and the name of " attorneys " is now, or should be, invariably used. It has always been the rule that sane adult persons might ap- pear in any court, in a civil case, and prosecute an action or plea in person.'*^ In respect to appearances by proxy, a distinction exists between courts of record and not of record; only profes- sional attorneys being permitted to appear in the former, while in the latter there was no such restriction. The liberal tendencies which gave birth to the Constitution of 1846, manifested them- selves, in 1847, by a legislative provision that any person of good moral character, although not admitted as an attorney, might manage, prosecute, or defend a suit for any other person, provided he was specially authorized for that purpose, by the party for whom he appeared, in writing, or by personal nomination in open court.** But that provision' was declared unconstitutional, be- came obsolete, and has been expressly repealed.*® In 1870, a party was prohibited from appearing in the Surro- gate's Court of New York county except in person, or by an at- torney of the Supreme Court. *^ 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 Siirrogates' Courts,*'' those courts being then courts not of record. It is provided by section 2529 of the Code 43 See 1 R, L. of 1813, p. 416, § 1; 46 L. 1870, e. 359, § 2. See Matter Co. Civ. Proc, § 55. of Spicer, 1 Tuck. 80. 44 L. 1847, c. 470, § 46. 47EeTisers' note to draft Revised 4SMcKoan v. Devries, 3 Barb. 196: Statutes. L. 1880, c. 245, § 1, subd. 24. 59 Appeakances, Pleadings, Etc. §§ 86, 87. that a surrogate's father or son shall not practice or 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.** The mode and effect of the appearance in Surrogates' Courts, and, apparently, the status of attorneys appearing therein, aave been placed on the same basis as in other courts of record by the present Code, which provides that " in a Surrogate's Court, a party of full age may, unless he has been judicially declared to be incompetent to manage his affairs, prosecute or defend a special proceeding, in person or by an attorney regularly admitted to practice in the courts of record, at his election; except in a pro- ceeding to punish him for a contempt, or where he is required to appear in person, by a special provision of law, or by a special order of the surrogate. The appearance of a party, against whom a citation has been issued, has the same effect as the appearance of a defendant, in an action brought in the Supreme C'ourt." *® § 86. Service of papers on attorneys. — By another provision,®" service of papers upon attorneys appearing in these courts, is per- mitted in the same cases and manner, and has the same effect as in other courts of record."^ This removes the grounds of a decision, made under the former statutes,®^ that the person appearing as attorney in a Surrogate's Court is not considered as an attorney of record upon whom notices may be served in the progress of a suit prosecuted or defended by attorney. § 87. Number and form of pleadings. — The pleadings in Surro- gates' Courts are two in number, the petition and answer. In general they may be oral. The Code provides that the surrogate may, at any time, require a party to file a written petition or answer, containing a plain and concise statement of the facts con- stituting his claim, objection, or defense, and a demand of the 48 See Co. Civ. Proc, § .'iO. v. Board, 4 Abb. Pr. 295 ; Boerum v. «Co. Civ. Proc, § 2528. A general Betts, 1 Dem. 471; Peters v. Carr, 2 appearance is not a waiver of an ob- id. 22; Grossman v. Crossman, id. jection that the citation was not served 69 ; Matter of Porter, 1 Misc. 489. In within the time required by the stat- New York county a consul may appear Lite. (Pryer v. Clapp, 1 Dem. 387; personally or by attorney for any non- Matter of Hurlburt, 43 Hun, 311.) resident citizen of his country, in pro- Answering the petition on its merits eeedings instituted by the puolic ad- is equivalent to a general appearance, ministrator. (L. 1898, r. 230, § 19.) and a waiver of all irregularities in • 50 Co. Civ. Proc, § 2538. the service of the citation. (Matter 51 Co. Civ. Proc, §§ 796, 802. of Macaulav, 27 Hun, 577, affd., 94 52 Coates v. Cheever, 1 Cow 463 N. Y. 574.) To the same effect see 476. ' ' Everts v. Everts, 62 Barb. 577 ; Board § 88. Commencement of Peoceedings ; 60 decree, order, or other relief, to which he supposes himself to be entitled. The surrogate may require the petition or answer to be verified, and a copy thereof to be served upon any other per- son interested. A party who fails to comply with such a require- ment may be treated as a party in default. Except where such a requirement is made, or in a case where a written petition is expressly required by the Code, a petition, or the answer thereto, may be presented orally; in which case, the substance thereof must be entered in the records of the court. "^ Where the statute or the surrogate requires the petition to be verified, the provisions of the Code, relating to the form of the allegations, and the form and effect of the verification of a pleading in a civil action,^* apply, so far as they can be applied in substance, without regard to the form of the proceeding. ^° It will be observed that the rules established by the present Code, in respect to verifications of pleadings, affect also the form of the allegations in the body of the pleading verified.^^ Demurrers, as distinct forms of pleading, are unknown to the procedure of Surrogates' Courts; but the end contemplated by a demurrer, in a civil action, may be reached by a formal motion to strike out a pleading for insufficiency appearing on its face. Indeed an objection of that sort may be taken informally at any stage of the hearing, and the question of the sufficiency of the pleading will then be determined; the theory in these courts being that pleadings are addressed to the surrogate, for him to pass upon before, they are pleaded. Thus where, to a petition for probate, a counter petition is filed asking for relief which the court has no power to grant, the court, on motion, will disregard it, and proceed vrith the probate.*'' § 88. Remedies to be pursued separately. — Several remedies regu- lated by distinct provisions of the statute should be separately 53 Co. Civ. Proc, § 2533. In New answer are required to be verified." York county, the rule of the Surro- Eule XIV, Mar. 16, 1888. gate's Court, in effect, abrogates oral 54 Co. Civ. Proc, §§ 523, 526. The and unverified pleadings, by providing petition of a foreign corporation may that " all petitions and answers in this be verified by its attorney. (Lamar's court, except as otherwise expressly Estate, 20 Daily Reg., No. 113.) It prescribed by statute, shall be in writ- seems that, under section 2533, the ing, and contain a plain and concise court may require objections to an ac- statement of the facts constituting the count to be verified. (Matter of Mott, claim, objection, or defense, and a de- 4 Law Bull. 23 [N. Y. Surr. 1882] ) . mand of the decree, order, or other re- 65 Co. Civ. Proc, S 2534. lief to which the party supposes him- 56 Co. Civ. Proc, § 524. self to be entitled, which petition and 57 McClure v. Woolley, 1 Dem. 574. 61 Appeabances, Pleadings, Etc. § 82. pursued. Thus it is improper to proceed by one and the same petition to vacate a decree settling an executor's account, — to revoke the executor's letters, — to compel a discovery, and for an accounting;^® and so of a petition for the revocation of letters testamentary and for the appointment of a temporary adminis- trator.^* But it is proper for one to pray for the payment of a legacy or distributive share and at the same time for an account- ing by the representative.®" 58 Hood V. Hood, 1 Dem. 392. Pend- tained. (Mattel- of Bruen, 3 Law ing a proceeding for a settlement of Bull. 88.) accounts, anotner Independent proceed- 59 Matter of Sohn, 1 Civ. Proc. Rep. ing for a partial distribution and set- 373. tlement will not generally be enter- 60 Matter of Macaulay, 27 Hun, 577. CHAPTER IV. PARTIES TO PROCEEDINGS IN SURROGATES' COURTS. TITLE FIRST. WHO AEE NECESSARY PARTIES. § 89. In general. — In regard to parties to special proceedings in Surrogates' Courts, it cannot be said that the general rule of courts of equity prevails — that every person whose interest is involved in the issue, or who may be affected by the decree, is a necessary party, plaintiff, or defendant. It is not every person having an interest in an estate who may institute or oppose a proceeding in these courts. It is only those persons, or that class of persons expressly designated in the statute, who may either prosecute or contest a particular proceeding. There is a further difference between the rule of courts of equity and of Surrogates' Courts, as to parties. The familiar rule that where there is a large number of persons having the same interests, one may sue on behalf of himself and others similarly situated, does not prevail in the latter courts. It is expressly provided by statute, that where a person is, or " creditor, next of kin, legatees, heirs, de- visees, or other persons constituting a class " are, required to be cited for any purpose, all those persons are necessary parties to the special proceeding.-' § 90. Necessary original parties. — Parties to an original pro- ceeding in a Surrogate's Court are (1) the petitioner, (2) the parties to be cited, or, as they may be called, respondents. Parties appearing in opposition to the probate of a will are, however, commonly called contestan^ts, and parties objecting to the accounts of an executor, guardian, etc., are usually called objectors or ex- ceptors. As suggested above, the statute must be consulted in each iCo. Civ. Proc, § 2518. [62] 63 Parties to Proceedings, Etc. §§ 91, 92. case, to ascertain who may institute a proceeding by petition, and who must be made parties respondent. The only difficulty which is likely to be met with in ascertaining the proper parties to a particular proceeding, is the determining whether the party, pe- titioner or respondent, belongs to the class of persons named in the statute. Thus the statute designates, besides individuals, such as husband, wife, executor, administrator, sureties, legatees, guard- ian, ward, etc., classes of persons such as (1) heirs-at-law , (2) next of kin, (3) creditors, (4) " persons interested in the estate or fund." §91. Classes of persons. — Of course any individual belonging to either of these classes may petition, without joining the others, but, as already pointed out, each individual of the class must be made a party respondent, in a case where the statute requires the class to be cited. The question will then sometimes arise, whether the petitioner belongs to the class entitling him to prosectite the proceedings, or, on the other hand, whether some person not named in the citation does belong to the class, and is, therefore, a neces- sary party. It will be desirable in this place to briefly notice these several classes of parties, reserving further consideration until we come to the subject of each proceeding. The classes of parties mentioned in the statute are heirs-at-law, next of kin, creditors, legatees, devisees, and " persons interested in the estate or fund." § 92. Heirs-at-law.— The " heirs-at-law " and the " next of kin " of a decedent are most frequently the same persons, although of course they constitute separate and distinct classes. In legal phraseology, the word " heirs " is used to designate those relatives who succeed to the real property of an intestate ; while the words " next of kin " are used to designate those, often the same, relatives who succeed to the personal property. Who those persons are, in any particular case, must be determined by an examination of the Statutes of Descents and Distributions. As a matter of fact, heirs- at-law, as such, are rarely parties to proceedings in a Surrogate's Court, that court having jurisdiction of matters relating to real estate in an incidental way only. The class of persons so designated includes all those who would be entitled to succeed to an intestate decedent's real property under the Statute of Descent. It may be well to note here, however, that by L. 1896, c. 272, a right of inheritance is given in certain cases to adopted children, so that such children are necessary parties to § 93. Parties to ProceedingSj Etc. 64 be cited on a petition for probate, or for letters of administration.^ " Illegitimate children, in default of lawful issue, may inberit real ^ and personal * property from their mother, as if legitimate ; but they cannot inherit from the ancestor of a deceased mother.^ The term " illegitimate," as here used, is to receive its common- law significance, and means begotten and born out of lawful wed- lock." The statute ^ provides that no person capable of inheriting under its provisions, shall be precluded from inheritance by reason of the alienism of his ancestor. This provision, however, is prospective, and has no application to cases which occurred previous to its adoption, i. e., January 1, 1830.* Post-testamentary children, unprovided for by the parent's will, are entitled to share in the estate, and may maintain an action against the legatees or devisees to recover their shares, or may compel a distribution or partition.® § 93. Next of kin. — ISTaturally, the class denominated " the next of kin " embraces the persons who are most frequently required to be made parties to proceedings in Surrogates' Courts. To ascertain whether a person belongs to that class, reference must be had to the Statute of Distributions, and not to the technical definition of the term " next of kin." It is enough to say, in this connection, that the Statute of Dis- tributions designates, as entitled to a distributive share of un- bequeathed assets, persons who are not, strictly speaking, " next of kin," e. g., children of a deceased brother or sister of a decedent who left other brothers and sisters, but no nearer relatives. But the Code declares that the term, as used in chapter 18, in reference to proceedings in Surrogates' Courts, shall include " all those en- titled under the provisions of law relating to the distribution of 2 The petition should, therefore, state v. Walker, 3 Barb; Ch. 438 ; McCarthy whether or not there is any adopted v. Marsh, 5 N. Y. 263 ; People v. Irvin, child, or issue of any deceased adopted 21 Wend. 128; McLean v. Swanton, 13 child or children of the decedent. See N. Y. 535 ; McCreery v. Somerville, 9 discussion of effect of this act in N. Y. Wheat. 354 ; Emanuel v. Ennis, 48 N. Daily Reg., Oct. 21, 1887. Y. Supr. 432. Where a will relates to 3L. 1896, c. 547, § 289, repealing real property, a nonresident alien L. 1855, e. 547. See L. 1895, c. 531. brother and sister of a deceased citizen 4 Co. Civ. Proc, § 2732, subd. 15. of the United States, if among his next 5 Matter of Mericlo, 63 How. Pr. 62. of kin, are entitled to citation; the lat- See Matter of Barringer, 29 Misc. ter inheriting, in case of intestacy, as 457; 61 N. Y. Supp. 1090. if a citizen, and the former in like 6 Miller v. Miller, 18 Hun, 507 ; Bel- manner, subject to » conditional de- lerman v. Blake, 11 Wkly. Dig. 555. feasance, enforceable at the instance of 7 1 R. S. 754, § 22; L. 1896, c. 547, the State. (Kilfoy v. Powers, 3 Dem. § 294. 198.) 8 Jackson v. Green, 7 Wend. 336: 9 2 R. S. 65, § 49, as amended L. Redpath v. Rich, 3 Sandf. 81. As to 1869, c. 22; L. 1896, c. 547, §5 46, 292; meaning of term " ancestor," see Banks Co. Civ. Proc, §§ 1868, 2732, subd. 14. 65 Parties to Pboceemngs, Etc. § 94, 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." ^^ The Statute of Distributions and the persons entitled thereunder to distributive shares will be more appropriately considered under the general head of Administration, chapter XVII, post. But it may be stated, in general, that the meaning of the term " next of kin " is not to be so far extended, by construction, as to include persons claiming, for example, to be legatees, who are not, at the same time, next of kin. Thus, the statute allowing next of kin to contest the validity of a will of personal property within one year after probate, was held, before the Oode,^^ not to extend to per- sons claiming to be legatees, who were not, at the same time, next of kin. § 94. Widow and husband not next of kin. — It will be observed that the definition given by the Code excludes a surviving husband or wife. It has been long established that the words " next of kin," in their strict and primary sense, do not include the widow. Accordingly, it has been held that where a residue of personal property is directed to be divided among the testator's " next of kin," or among his " next of kin according to the statute," or where a trust was created for the benefit of those who, at the decease of a party, should be entitled to his personal estate as his next of kin, according to the Statute of Distributions, the widow takes no part. In other words, " next of kin " does not include the widow ;^^ although where there are circumstances which induce a belief that such was testator's intention, the term will be so considered. -^^ It may be said generally, that the term will receive construction according to the connection in which it is used ; and, in the con- struction of a will, according to the intention of the testator, or, in a statute, according to the intent of the Legislature.-'* 10 Co. Civ. Proc, § 2514, subd. 12. Devoe, 171 id. 281 ; Hannin v. Osgood, 11 Booth V. Kitchen, 7 Hun, 260. 1 Eedf. 409, 417; Snider v. Snider, 11 Otherwise now as to this particular App. Div. 171; 42 N. Y. Supp. 613. proceeding (Co. Civ. Proc, § 2647). See § 269, n. 24, post. See c. VIII, post; Henry v. Henry, 13 Murdock v. Ward, 67 N. Y. 387. 4 Dem. 253; 9 Civ. Proc. Eep. 100. The words "next of kin" in a will 12 Murdock v. Ward, 67 N. Y. 387, do not include a wife, although fol- distinguishing Merchants' Ins. Co. v. lowed by a reference to the intestate Hinman, 15 How. Pr. 182; 4 Abb. Pr. succession laws. (Piatt v. Mickle, 137 313; Knickerbacker v. Seymour, 46 N. Y. 106; 50 St. Eep. 91; Matter of Barb. 198; Dewey v. Goodenough, 56 Devoe, supra.) id. 54; Luce v. Dunham, 69 N. Y. 36; 14 The words "next of kin" in 2 Keteltas v. Keteltas, 72 id. 312; E. S. 114, § 9, authorizing "next of Tillman v. Davis, 95 id. 17 ; Matter of kin entitled to share in the distribu- 5 §§ 95, 96. Paeties to Peoceedinqs, Etc. 66 § 95. Divorced husband and wife — As a husband, on the disso- lution 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 proceed- ing touching the administration of her separate estate ; but where the dissolution was at the suit of the husband, his rights and in- terests in her property are not impaired, and, therefore, he m.ay be a necessary party in such a proceeding. Moreover, 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.''® § 96. Creditors.^ — Creditors constitute another class of parties mentioned in the statute, who are entitled to institute a proceed- ing or to be cited on an adverse proceeding.'® Whether, as a m.atter of fact, a party is or is not a creditor of the decedent, may be raised, it is apprehended, in answer to a citation issued on his petition ; but to entitle one claiming to be a creditor to a citation, it requires only that he should state, in his verified petition, that he is such creditor or has a claim against the decedent. The court generally requires a petitioning creditor to state the general nature of his claim, and the facts upon which it is founded, especially where his claim is disputed.'^ AiBrmative proceedings by a cred- itor for the payment of debts are expressly provided for.'^ tion of the estate," to sue executors and 15 Co. Civ. Proc, §§ 1759, 1760; administrators to recover a dlstribu- Matter of Ensign, 103 N. Y. 284. tive share, include the widow of the 16 Matter of De Forest, 86 Hun, 300 ; testator or intestate. (Betsinger v. 33 N. Y. Supp. 216. As to who are Chapman, 88 N. Y. 487.) Compare creditors, see Co. Civ. Proc, § 2514, Slosson V. Lynch, 43 Barb. 161; Hal- subd. 3, as amended 1900. Although a lett V. Hare, 5 Paige, 316; Tillman v. creditor of a testator may petition for Sullivan, 63 How. Pr. 355, affd., as the probate of his debtor's will (Co. Tillman v. Davis, 95 N. Y. 17. It has Civ. Proc., § 2614; Gove v. Harris, 4 been held (Dickins v. N. Y. Cent. E. Dem. 293), he is not a proper party H. Co., 23 N. Y. 158; Lucas v. N. Y. respondent in a probate proceeding. Cent. R. R. Co., 21 Barb. 245), in and, therefore, cannot come in, after an action brought by the husband as probate, and move to open the decree administrator, to recover for the death admitting the will. ( Heilman v. Jones, of his wife, that the husband was not 5 Eedf. 398. ) But a judgment creditor next of kin to his wife within the act of a devisee may contest a codicil requiring compensation for causing which supersedes the will. (Matter of death, etc. (L. 1847, c. 450), and could Coryell, 4 App. Div. 429; 39 K Y. not maintain an action for his own Supp. 508.) damages; and in another ease, where 17 Gove v. Harris, 4 Dem. 293; the party causing the death had paid Creamer v. Waller, 2 id. 351. Compare to the administrator a sum certain in Greene v. Day, 1 id. 45 ; Wever v. Mar- settlement of the action, it was held vin, 14 Barb. 376. that, on a distribution of the estate, 18 Co. Civ. Proc, § 2722, as amended the husband was not entitled to a dis- 1895 (former § 2717). See post, c. tributive share of that sum as one of XVII. the next of kin. (Drake v. Gilmore, 52 N. Y. 389.) 67 Parties to Peoceedings, Etc. §§ 97, 98. § 97. Assignees of creditors, legatees, etc But where it is shown that a petitioner has assigned his claim or interest to a third person not a party to the proceeding, the surrogate should revoke the citation, as he has no jurisdiction to determine the validity of the assignment.^^ Before the present Code, the sur- rogate had no power to direct the payment of a distributive share or legacy to an assignee thereof;^" but now, distribution of the surplus, upon a judicial settlement of an account, may be made to the creditors, legatees, next of kin, etc., or their assigns.^^ It does not follow from this, however, that the assignee of a legacy, for instance, may petition to compel payment thereof in a direct pro- ceeding for that purpose ;^^ his remedy being by a proceeding to compel an accounting, and distribution.^* A receiver of the prop- erty of a person entitled to a distributive share of a decedent's estate, has, therefore, a standing to petition for an accounting.^* § 98. Persons interested in the estate Among the parties who may petition for a citation in particular proceedings, the statute includes " persons interested in the estate or fund." Whether a petition discloses such an interest of the petitioner in the estate, as will entitle him to a citation, must depend upon the circum- stances of each case. As a general rule, it may be stated that a claim of interest positively sworn to will entitle the party to a citation, or to leave to come in as a contestant in a pending pro- ceeding,^® though, without doubt, the surrogate may require the claim of interest to be stated with certainty; and the claim of interest may be disputed by answer, and then determined as a preliminary to the main issue.^® WBonfanti v. Deguerre, 3 Bradf. 24 Matter of Gilligan, 1 Connoly, 137, 429; Woodruff v. Woodruff, 3 Dem. 18 St. Kep. 812; Matter of Beyea, 10 505; Matter of Stephens, 64 N. Y. Misc. 198; 31 N. Y. Supp. 200; Mona- Supt). 990. han v. Fitzpatrick, 16 Misc. 508; 39 aoHitelieoek v. Marshall, 2 Eedf. N. Y. Supp. 857. See Matter of Bai- 174 [a ease of two rival claimants of ney, 26 N. Y. Supp. 892. the same share]. See Worrall v. 25 Norton v. Lawrence, 1 Redf. 473. Driggs, 1 id. 449. Where a decree in a probate proceeding 21 Co. Civ. Proc, § 2743. /* seems directs a temporary administrator to that even though a beneficiary has as- pay certain sums as costs, it has the ef- signed his interest, he should, never- feet of making him a party to the pro- theless, be cited. (Matter of Foster, 30 ceeding, and he may thereafter be per- Misc. 573; 63 N. Y. Supp. 1102.) mitted to move for a modification of 22 The provision of section 1909, giv- such decree without first obtaining ing a right of action by the transferee leave of the court so to do, (Matter of of a claim, refers only to civil actions Aaron, 5 Dem. 362). or special proceedings in law courts. 26 Matter of Comins, 9 App Div 23 Peyser v. Wendt, 2 Dem. 221, 492; 41 N. Y. Supp. 323; Matter of followed in Matter of Brewster, 19 St. Hamilton, 76 Hun, 200 ; 27 N. Y. Rep. 698. See Matter of Solomon, 4 Supp. 813 ; Matter of Peaslee, 73 Hun, Redf. 509. 113; 25 N. Y. Supp. 940. § 99. Parties to Peocebdings, Etc. 68 Where the expression '" person interested " is used in the Code in connection with an estate or a fund, it 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 the Code 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 dis- puted; unless he has been excluded by a judgment, decree, or other final determination, and no appeal therefrom is pending." ^^ This only applies to the particular proceedings designated; it does not apply, for instance, to a proceeding to revoke letters of administration.^^ This subject will be again mentioned in the third title of this chapter. § 99. Executors and administrators. — When the statute men- tions any executor or administrator as competent to petition the court, it means a domestic, and not a foreign, executor or admin- istrator. An executor or administrator appointed in another State has no right, as such, to sue in this State, without taking out letters here.^* Hence an administrator 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 possession of his intestate's property here.^° An executor is, as such, " a person interested in 27 Co. Civ. Proc, § 2514, subd. 11. made, will be recognized here. (Peter- 28 Where in such a proceeding, sen v. Chemical Bank, supra; Guy v. brought by the intestate's widow, it Craighead, 6 App. Div. 463; 39 N. Y. appeared that she had assigned her in- Supp. 688.) A foreign executor cannot terest in the estate, as she alleged, by be sued in our courts, though it is al- the fraudulent procurement of the ad- leged he has assets in his possession ministrator, the petition was dismissed, here. (Ferguson v. Harrison, 27 Misc. — the Surrogate's Court being unable 380; 58 N. Y. Supp. 850.) But see to set aside the instrument for fraud ; Smith v. Central Trust Co., 7 App. until which is done, the petitioner was Div. 278; 40 N. Y. Supp. 152; Stone excluded from the class of persons in- v. Demarest, 67 App. Div. 549; 73 N. terested in the estate. (WoodruflF v. Y. Supp. 903.) Where a substituted Woodruff, 3 Dem. 505.) trustee was appointed by a foreign 29 Matter of Butler, 38 N. Y. 397; court, having jurisdiction, which gave Petersen v. Chemical Bank, 32 id. 21; him powers established by the Su- Stewart v. O'Donnell, 2 Dem. 17 ; Tay- preme Court of the foreign State in- lor V. Syme, 162 N. Y. 513; 31 Civ. terpreting its own statutes, the trus- Proc. Hep. 1 ; Flandrow v. Hammond, tee may by virtue of that appointment 13 App. Div. 325; 43 N. Y. Supp. 143. sue in the courts of this State. (Eug- The guardian of a lunatic, appointed lish v. Mclntyre, 29 App. Div. 439; by a foreign court, cannot intervene in 51 N. Y. Supp. 697.) an accounting in which the ward is in- 30 Matter of Jones, 3 Redf. 257, and terested. (Weller v. Suggett, 3 Redf. ca^es cited. See Duffy v. Smith, 1 249.) But assignments of claims by Dem. 202. foreign representatives, valid where 69 , Pasties to Pboceedings, Etc. § 99. 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.^^ And so where a decree directs executors to convert into money certain securities and assets in their hands, and to invest the same as directed by the will, they are all interested in the performance of that duty, and where none of them have resigned or been re- moved, they should all be made parties in the proceeding instituted by a legatee to enforce his rights under such decree and the will.^^ An allegation in the petition, that some of the executors are in- solvent and have no assets of the estate in their hands, does not dispense with the necessity of making them parties. ^^ Formerly, in probate proceedings, executors were deemed to represent all the devisees and legatees named in the will, and, therefore, the latter were not necessary parties to such a proceed- ing. In 1892, section 2615 was amended so that all persons who would take any interest in the estate, under the will, were required to be cited in a proceeding for its probate,** but by L. 1894, c. 118, the old rule, in this respect, was re-established, dispensing with a citation to devisees and legatees. In regard to coexecutors or administrators, it has been uni- 31 Edwards v. Edwards, 1 Dem. 132. theless, be bound by the decree on the 32 In a proceeding to remove a trus- theory of representation, should not be tee, all the trustees who have acted as applied to such a case. (Riggs v. such, and have not been discharged, are Cragg, 89 N. Y. 479; 11 Abb. N. C. necessary parties. (Hamilton v. Faber, 401.) 33 Misc. 64; 68 N. Y. Supp. 144.) In an action brought by a substi- 33 Cocks v. Haviland,,5 Dem. 11. tuted testamentary trustee to recover 3* See post, c. VI. Where the ques- the trust fund from the executors of a tion of the construction of the will was deceased trustee, it is not necessary to raised in the probate proceeding, the make the cestuis que trustent parties, legatees were, even before the amend- unless the action requires the determi- ment of 1892, brought into the case, nation of their rights as between them- See Danser v. Jeremiah, 3 Kedf. 130, selves or as between them and the trus- 146. It was also held that the execu- tees. (Mount v. Mount, 25 Misc. 62 ; tor not only represented all the inter- 71 N. Y. Supp. 199.) A residuary ests of the legatees on probate proceed- legatee cannot maintain a proceeding ings, but they "were bound by his acts, to establish a claim in favor of the where they did not intervene in the estate where it is not shown that the proceedings until after the rendition of debts and general legacies have been the judgment. (Marvin v. Marvin, 11 paid. (Matter of Marcellus, 165 N. Abb. Pr. [N. S.] 97.) Where the con- Y. 70; 58 N. E. 796.) But where struetion of a will involves the ques- executors, charged with the duty of tion whether income or accretions — retaining and applying a part of the such as stock dividends on shares in income of a bond and mortgage, re- a corporation belonging to the estate fuse to foreclose, alleging it was with- — go to the life tenant or remainder- out consideration, the sole residuary man, the life tenants are necessary legatee, the annuitant consenting, may parties to a proceeding awarding maintain an action for the foreclosure, payment thereof to the life tenant. (Mulvey v. Reilly, 31 Misc. 10; 64 N. The principle that persons not actually Y. Supp. 582.) parties to a suit in equity may, never- §§ 100, 101. Paeties to Pkoceedings, Etc. 70 formly held that an executor, etc., may cite his coexecutors in the Surrogate's Court, or sue them, for an accounting,^® and where one of two or more coexecutors or administrators presents his accounts for settlement, his coexecutors must be cited.** § 100. Married women. — It was formerly held that as a married woman could not act without her husband's concurrence, and as he was responsible for her acts, both husband and wife should be made parties in a matter in which the wife was interested.*'' Where a married woman is entitled to be cited it is no longer necessary to include her husband in the citation.** Married women are now declared capable of acting as executors, administrators, and guardians of minors, as though they were single women,*^ and the law permits a married woman to institute proceedings and defend her separate interests in her own name. TITLE SECOND. DEATH OF A PAKTY AND EEVIVOE OF A PROCEEDING. § 101. In probate proceedings. — Where in a proceeding for pro- bate, one of the parties dies, the surrogate, having acquired juris- diction of all the parties in interest, is not thereby divested of jurisdiction. If the survivors appear and litigate, without objec- tion because of an omission to bring in the heirs and representa- tives of the deceased party, such omission cannot impair the validity of the proceedings as to the survivors.*" But even where objection is made, the court may (and it is the better practice that it should, in all cases, whether objection is made or not), order the proceeding to be revived and continued. 35 Wood V. Brown, 34 N. Y. 337; 38 See Co. Civ. Proc, § 450 ; Bleecker Smith V. Lawrence, 11 Paige, 206; v. Lynch, 1 Bradf. 458; Keeney v. Woodruff V. Woodruff, 17 Abb. Pr. Whitmarsh, 16 Barb. 141. 165; Buchan v. Eintoul, 70 N. Y. 1; 39 L. 1867, c. 782, § 2. Burt V. Burt, 41 id. 46. In Wood 40 Brick v. Brick, 66 N. Y. 144. V. Brown (supra), which was an ac- Where the proponent of a will, who tion by an executor against his co- was a beneficiary thereunder, died dur- executor to revoke the latter's appoint- ing the pendency o{ the proceeding, ment for his misconduct, the court leaving a will, purporting to dispose of held that creditors, legatees, and next all his property, which was thereafter of kin were not necessary parties, but proved, the orderly method of continu- delivered a dictum, that they might be ing the probate proceeding would be an necessary in an action for final ac- ex parte application by the executor of counting. the latter will to be made a party 36 Co. Civ. Proc, § 2778. thereto, and, upon the granting of such 37 See Westervelt v. Gregg, 1 Barb, application, a motion, on notice, for a Ch. 469; Guild V. Peck, 11 Paige, 475; revivor in his name as proponent. Woodruff V. Cox, 2 Bradf. 153; Marre (Matter of Govers, 5 Dem. 40.) v. Ginochio, id. 165. 71 Pabties to Peoceedings, Etc. § 102. The proceeding for the probate of a will is a qiuisi proceeding in rem*^ and such a proceeding cannot, in the nature of things, abate by the death either of a proponent or a contestant. His per- sonal representatives succeed him in the proceeding, and the right survives to, and may be prosecuted by, them. A proceeding to revoke probate stands upon a different footing, and where the in- terest of the petitioner ceases at his death, the proceeding cannot be revived.** § 102. In accounting proceeding^. — It was formerly the rule that in proceedings for an accounting, where a sole party petitioner or respondent died before final decision the proceeding abated, and a final decree could not be entered.** The personal representa- tives of the deceased executor could be called upon to account for the estate of the first decedent, but only in a new proceeding, and not by a revivor of the proceeding against the deceased executor.** It is now provided, however, that " on the death heretofore or hereafter of any executor, administrator, guardian, or testamentary trustee while an accounting by or against him, as such, was or is pending before a Surrogate's Court, such court may revive said proceeding against his executor, administrator, or successor and proceed with such accounting and determine all questions and grant any relief that the surrogate would have power to determine or grant in case such decedent had not died or in a case where the executor or administrator of said last-mentioned decedent, acting at the time of such revival, had voluntarily petitioned for an ac- counting as provided for in this section." *' The death of the party who instituted the proceeding will not abate it. Thus where a legatee dies, his assignee is entitled to intervene and continue the proceedings.*® The right to revive a proceeding is a valuable right, and the surrogate has no power to enter an order, of his own motion, adjudging that it has abated. Such an order being void, may be collaterally attacked whenever brought in question.*^ 41 Van Alen v. Hewins, 5 Hun, 44; Law Bull. 48 (N. Y. Surr., 1882) ;Mat- Bogardus v. Clark, 4 Paige, 623 ; Laf- ter of May, 24 Misc. 456, 53 N. Y. ferty v. Lafferty, 5 Redf. 326. Supp. 710. 42 Matter of Milliken, 32 Misc. 317. 45 Co. Civ. Proc, § 2606, as amended « Pease v. Gillette, 10 Misc. 467; 32 1902. N. Y. Supn. 102; Matter of Steencken, « Matter of Fortune, 14 Abb. N. C. 51 App. Div. 417; 64 N. Y. Supp. 660. 415. See Hitchcock v. Marshall, 2 See Matter of Koch, 33 Misc. 672; 68 Redf. 174; Worrall v. Driggs, 1 id. N. Y. Supp. 938. 449. 44Boerum v. Betts, 1 Dem. 471, and 4T Matter of Armstrong, 72 App. cases cited. See Matter of Scribner, 3 Div. 286. §§ 103, 104. Paeties to Peoceedings, Etc. 72 Of course, the death referred to must have occurred after the surrogate has acquired jurisdiction hj service of the citation upon the party, else the proceeding cannot be revived.** § 103. In other proceedings. — Proceedings other than those for or against probate and upon accountings stand upon a different footing. It is to be observed, moreover, that not only an action, but a special proceeding, does not abate by any event, if the cause of action survives ; except that a special proceeding, authorized to be brought by or in the name of a public officer, or by a receiver or other trustee appointed by virtue of a statute, does not abate by the death or removal of such officer, etc., but may be continued by his successor.** And an executor, administrator, or a person appointed by a surrogate to sell a decedent's real estate to pay debts, is to be deemed such a trustee.^" Section 765 of the Code, forbidding the entry of a judgment against a party (to an action) who dies before a verdict, report, or decision is actually rendered against him, is made applicable to Surrogates' Courts by section 3347, subdivision 6."^ TITLE THIED. INTEEVENTION OF THIED PAETIES. § 104. In probate proceedings. — It has always been the rule (now confirmed by statute), that any person interested in the estate, who, though not entitled to be cited, yet desired to inter- vene for the protection of his own interests, might apply to the surrogate, by petition, for leave to do so.**^ The language of the statute authorizing intervention in probate proceedings (Co. 48 Matter of Georgi, 35 Misc. 685 ; may contest a codicil which supersedes 72 N. Y. Supp. 431. the will. (Matter of Coryell, 4 App. 49 Co. Civ. Proc, §§ 755, 766. See Div. 429; 39 N. Y. Supp. 508. ) See Co. L. 1891, c. 284. Those sections do not Civ. Proc, § 2617; Lafferty v. Lafferty, apply to Surrogates' Courts. (Matter 5 Eedf. 326. A receiver in supple- of Schlesinger, 36 App. Div. 77 ; 55 mentary proceedings of the property N. Y. Supp. 514; Matter of Camp, 81 of a husband, for whom no provision Hun, 387; 30 N. Y. Supp. 884.) is made in his wife's will, is not en- 50 Co. Civ. Proc, § 1828. titled to intervene as a contestant 61 Herbert V. Stevenson, 3 Dem. 236. in probate proceedings. (Matter of 52Bogardus v. Clark, 4 Paige, 623, Brown, 47 Hun, 360.) Under L. 1893, 626, which was approved and sustained c 701, providing that a gift for in Vanderpoel v. Van Valkenburgh, 6 charitable uses is not to fail by reason N. Y. 190, 199. In Booth v. Kitchen, of the indefiniteness or uncertainty of 7 Hun, 260, it was held that a person the beneficiaries in the instrument claiming to be legatee under a codicil making it, the attorney-general is en- afterward revoked was entitled to a titled to intervene. (Rothschild v. hearing on the probate of the will. So, Goldenberg, 58 App. Div. 499 ; 69 N. too, a judgment creditor of a devisee Y. Supp. 523.) 73 Parties to Peoceedings, Etc. §§ 105, 106. Civ. Proc, § 2617) is broad enough, to include every interest. It has been held that any interest, and even, it seems, the bare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper. Thus executors under a will may oppose the probate of a later will, although the parties beneficially inter- ested under the earlier have released their interest.^* The ques- tion of the intervening party's interest in the estate will not be independently determined, even where it is disputed, before de- termining the main issue, but the court will try both issues to- gether.** § 105. In other proceedings. — Other sections of the Code pro- vide for the bringing in of third persons, who are necessary par- ties in other than probate proceedings, as on an accounting (§ 2743), and on an appeal (§ 2573). So a creditor, or any person interested in the estate, although not cited (and certainly not a necessary party), is entitled to appear upon an accounting, and thus make himself a party to the proceeding.*' There will be occasion, when we come to speak of particular proceedings, to give examples of the application of this rule. The general re- mark may, however, be made here, that no one who has not been formally made a party to a proceeding can make a motion therein.'^ § 106. Application for leave to intervene. — A party desiring to be made a party to a pending proceeding should present a veri- fied petition, setting forth his interest in the controversy with certainty.*^ It is not necessary, we think, that he should state 53 Matter of Greeley, 15 Abb. (N. S. ) 54 Norton v. Lawrence, 1 Kedf. 473 ; 393. Compare Matter of Rollwagen, Henry v. Henry, 4 Dem. 253 ; s. c., in 48 How. Pr. 103; Turhune v. Brook- part, as Estate of Henry, 3 How. Pr. field, 1 Redf. 220; Chittenden's Estate, (N. S.) 386; 9 Civ. Proc. Kep. 100. See 1 Tuck. 135; Walsh v. Ryan, 1 Bradf. Jones v. Hamersley, 4 Dem. 427; 7 St. 433; Marvin v. Marvin, 11 Abb. Pr. (N. Rep. 292, as to what questions an in- S. ) 97 ; Matter of Jones, 1 Redf. 263 ; tervening party in probate may raise. Foster V. Foster, 7 Paige, 48 ; Public 55 Co. Civ. Proc, § 2728, as amended Administrator v. Watts, 1 id. 347 ; 1893 (formerly § 2731 ) ; Schlegel v. Thomson v. Thomson, 1 Bradf. 24 ; Winekel, 2 Dem. 232 ; Reilley v. DuflFy, Bonfanti v. Deguerre, 3 id. 429 ; Robi- 4 id. 366 ; Tilden v. Dows, 2 id. 489. son V. Robison, 5 Lans. 165 ; Worrall 56 Lafferty v. Lafferty, 5 Redf. 326 ; V. Driggs, 1 Redf. 449; Gratacap v. Smith v. Baylis, 3 Dem. 567. Phyfe, 1 Barb. Ch. 485 ; Clark v. Ford, 57 A decree directing a temporary 1 Abb. Ct. App. Dec. 359 ; Carpenter v. admmistrator in probate proceedings Historical Soc, 1 Dem. 606 ; Stapler v. to pay certain costs has the eflFect of Hoffman, id. 63 ; Matter of Ellis, 22 making him a party to the proceeding, St. Rep. 77; Merritt v. Jackson, 2 and he need not obtain leave to move Dem. 214. See post, c. VI, as to Pro- for a modification of the same. (Mat- bate Proceedings; c. XIX, as to Ac- ter of Aaron, 5 Dem. 362.) coimting Proceedings, and c. XXIV, as to Appeals. § 107. Parties to Pboceedings, Etc. Y4 in his petition whether he .desires to help the prosecution or the defense. He has a right to be present as a party to watch the proceedings with a view of protecting his own interests, however they may appear. The right to intervene must be availed of before final decree.''* If, for example, a legatee fails to inter- vene in the proceeding in the Surrogate's Court, or on appeal from his decree, he will not be permitted, after final judgment on the probate, to appeal from a surrogate's order directing the annulment of the record, and awarding costs against an executor, and directing him to file an inventory of the estate. He has ceased to be an interested party, and is represented by the ex- ecutor, and is bound by his acts.®* A creditor does not lose his right to intervene, on an accounting, by omitting to present ' his claim in pursuance of a notice requiring presentation of demands.^ § 107. Ordering third parties to be broug^ht in. — If a party to the pending proceeding desires to bring in a new party, he should apply on petition or affidavit for a citation to be issued to the proposed new party. The service of the citation, with proof thereof, is thought to be sufficient, without the entry of a formal order making him a party. So, whenever it appears, in the progress of a proceeding, that a person not cited to appear is a necessary party, the surrogate will, on his own motion, issue a citation to him for his appearance. ^^ This rule has been fol- lowed where, pending a reference, under the statute to determine a disputed claim against executors or administrators, it appeared that the presence of a third person was necessary to a complete determination of the controversy.®^ So when, on the probate of a will, an alleged codicil is brought in by parties who are inter- ested, but who were not cited, the proper course is to direct them to file an allegation propounding the codicil for proof, as a part of the pending proceeding.^ So where it appeared, for the first 58 Matter of Dunn, 1 Dem. 294. The 59 Marvin v. Marvin, 11 Abb. Pr. right to intervene upon an accounting (N. S.) 97. of an executor or trustee does not 60 Greene v. Day, 1 Dem. 45 ; O'Con- arise until the "hearing," and where a nor v. Giflford, 6 id. 71. See Matter of proceeding for a compulsory account- O'Brien, 33 Misc. 17; 67 N. Y. Supp. ing has been discontinued by a formal 1116. consent of all the parties to it, a third Bl Matter of Odell, 1 Misc. 390. See person cannot thereafter intervene and Russell v. Hartt, 87 N. Y. 19. bring on the matter for hearing. (Mat- 62 See Mowry v. Peet, 7 Abb. N. C. ter of Wood, 5 Dem. 345.) The appli- 196; Munson v. Howell, 20 How. Pr. cation, after appeal, must be made to 60. the appellate court. (lb., and Co. Civ. 63 Carle v. Underhill, 3 Bradf. 101. Proc, §§ 452, 2573.) See Van Wert v. Benedict, 1 id. 114. 75 Parties to Peoceedings, Etc. § 108. time, upon a probate trial, that one of the next of kin was an infant, the fact not having been alleged in the petition for pro- bate, the surrogate will appoint a special guardian, to represent the infant's interests, before a decision is rendered.®* ' TITLE FOURTH. SPECIAL QUAEDIANS. § 108. Special guardian for infant or incompetent In Surro- gates' Courts, as in others, an infant party must be represented by a guardian — his general guardian, if he has any f^ or if he has none, or his general guardian does not appear in the pro- ceeding, the court must appoint a special guardian for the par- ticular proceeding to which the infant is a party. The appoint- ment of a special guardian is not nuUiiied by the subsequent appointment of a general guardian.®® The omission to appoint a special guardian of an infant party who was served does not render void the surrogate's decree in the proceeding, but only voidable at the election of the infant on reaching majority.®^ Special provision is made for the protection of the interests of lunatics, idiots, and habitual drunkards, whether they appear by committee or in person.®* The fact of there being a general guardian of an infant, or a committee of an incompetent, does not prevent the appointment of a special guardian in a proper case, as where there is any ground to suppose that the interest of the guardian or. committee is adverse to that of the infant or incompetent, or where, for any other reason, the interests of the latter require the appointment of a special guardian.®® But a general guardian who is qualified to adequately protect the inters ests of his ward, and who is exercising the function of his office 64 Matter of Feeley. N. Y. Law J., sufficient cause to vacate a decree of Mav 13, 1890 (N. Y. Surr. Ct.). probate. 65 Gunning v. lockman, 3 Redf. 69 Co. Civ. Proc, §§ 2527, 2530. In 273 ; 4 Abb. N. C. 173. Matter of Van Beuren, a special guard- 60 Matter of Monell, 22 Civ. Proc. ian was appointed at the request, and Rep. 377; 19 N". Y. Supp. 361. upon the representation of counsel, 6T Matter of Becker, 28 Hun, 207 ; that he had no interest adverse to the Matter of Bowne, 19 St. Rep. 895. person for whom such guardian was 68 Co. Civ. Proc, § 2530. See Bloom needed. It afterward appeared that V. Burdiek, 1 Hill, 130; Schneider v. he had an adverse interest, inasmuch McFarland, 2 N. Y. 459; Ackley v. as he represented the life tenant, and Dygert, 33 Barb. 176 ; Haveils v. Sher- his law firm appeared for a residuary man, 42 id. 636. In Matter of Donlon, legatee and remainderman. Ransom, 66 Hun, 199; 21 N. Y. Supp. 114, the S., vacated the appointment. (N. Y. service of a citation upon an incompe- Law-J., Jan. 19, 1891.) In Matter of tent for whom no next friend or repre- Graham, it appearing from an ex- sentative has been appointed, was held amination of the will that the mother § 109. Paeties to Peoceedings, Etc. T6 when an occasion arises for having the ward represented in a special proceeding, is, undoubtedly, entitled to appear therein in behalf of the infant, and it would be improper to deny him this right, and to appoint a special guardian in his stead, if he is will- ing to act.™ § 109. Application for appointment.— On the return of a cita- tion directed to an infant, if no one applies for the appointment of a special guardian, it is the duty of the court to appoint one on its own motion. 'So application need be made by the infant,''^ or if made by him, no notice of such application is necessary, unless he has a general guardian; in which case notice must be given to the latter.™ Ifotice of the application need not be given to the infant where the appointment is made on the surrogate's own motion.^^ It is only where a person, other than the infant, or the committee of the incompetent person, applies for the ap- pointment of a special guardian, that notice of the application must be personally served upon the infant or incompetent person, if he is within the State, and also upon the committee, if any, in like manner as a citation is required to be served.'^* The ap- plication may be made at the time of presenting the petition, and, in that case, the order to show cause may, in the surrogate's discretion, accompany the citation;^® or, the citation itself, with- of the infants, for wham a special void in proceedings for the sale of real guardian was appointed, upon the property, or afifeet the title of a pur- petition of their father, had an in- chaser. (Price v. Fenn, 3 Dem. 341; 8 terest adverse to the infants, the order Civ. Proc. Eep. 206. ) appointing the special guardian upon T2 Farmers' Loan & Trust Co. v. Mc- that petition was vacated. (Ransom, Kenna, 3 Dem. 219. S., N. y. Law J., May 29, 1891.) TSAnd the papers need not state In Matter of Van Wagonen (69 Hun, whether the infant resides with his 365), it was held not error for the parents and approves the application, surrogate to appoint his brother (Matter of Monell, 46 St. Eep. 693; 19 special guardian for an infant litigant. N. Y. Supp. 361.) TO Farmers' Loan & Trust Co. v. Mc- T4 The appointment of a guardian ad Kenna, 3 Dem. 219. In Matter of litem, for an infant party in a con- Monell ( 46 St. Rep. 693 ; 22 Civ. Proc. tested probate proceeding, who is pres- Rep. 377 ) , pending an accounting pro- ent when the appointment is made, ceeding, a general guardian's letters was, however, held to be regular, with- were revoked, and the surrogate ap- out service of a notice or citation upon pointed a special guardian for the in- the infant when he did not, by himself fant party. Held, that this appoint- or his guardian, object. (Matter of ment was not nullified or rendered of Seabra, 38 Hun, 218.) no effect by the subsequent appoint- '^B Co. Civ. Proc, § 2531. The fol- ment of a new general guardian, lowing rules have been established in While the latter had the right to ap- the Surrogate's Court of New York pear in the proceedings, this right did county, in respect to special guardians not conflict with the rights and duty appointed in proceedings in that court : of the special guardian. No special guardian to represent the 71 Matter of Lvidlow, 5 Redf."391. interests of an infant in any proceed- Failure to give the infant notice of the ing in said Surrogate's Court, will be application does not make the decree appointed on the nomination of a pro- 77 Paeties to Peoceedings, Etc. 110, 111. out any order to show cause, may contain a clause advising the infants that, in the event of their not appearing by general guard- ian, and failing to ask for the appointment of a special guardian, a special guardian will, upon the return of the citation, be ap- pointed.''* § 110. Appointment, when made. — The appointment cannot be made until the citation has been served on the infant, ^^ nor until the return day named in the citation.''^ The order cannot be made nunc pro tunc, after the decree has been made, so as to cut off the right of the infant to object to the irregularity on coming of age;^^ but it may be made, pending the hearing, before the decision is rendered.** § 111. Duties and responsibilities. — It is for a special guardian, who is usually a lawyer,*^ and aware of his duties and responsi- bilities as such, to take such course of action in the interest of his ward as he may deem fittest, without recourse to the court for ponent or the accounting party or his attorney, or upon the application of a person having an interest adverse to that of the infant. To authorize the appointment of a person as a special guardian on the application of an in- fant or otherwise in a proceeding in this court, or to entitle a general guardian of such infant to appear for him in such proceeding, it must ap- pear that such person, or such general guardian, is competent to protect the rights of the infant, and that he has no interest adverse to that of the infant and is not connected in business with the attorney or counsel of any party to the proceeding. Where the application for the appointment of a special guard- ian is made by another than the in- fant, or where the general guardian appears in behalf of the infant, it must appear that such applicant or general guardian has no interest adverse to that of the infant. If such applicant or general guardian is entitled to share in the distribution of the estate or fund in which the infant is interested, the nature of the interest of such ap- plicant or general guardian must be disclosed. The application for the ap- pointment of a special guardian, as well as the appearance filed by a gen- eral guardian of a minor, must in every instance disclose the name and residence and relationship to the in- fant of the person with whom the in- fant is residing, whether or not he has a parent living, and, if a parent is liv- ing, whether or not such parent has knowledge of, and approves, such ap- plication or appearance; and such knowledge and approval must be shown by the aflSdavit of such parent. If the infant has no parent living, like knowl- edge and approval of such application or appearance by the person with whom the infant resides must be shown in like manner. Where such application is made by an infant over the age of fourteen years, his petition must show and be accompanied by the affidavit of the parent (in case the latter has an interest adverse to that of the infant), showing, in addition to such knowl- edge aforesaid, that such parent has not influenced the infant in the choice of the guardian. (Rule X, Mar. 16, 1888.) See Matter of Henry, 2 How. Pr. (N. S.) 250. 76 Price V. Fenn, 3 Dem. 341. See Matter of Cutting, 38 App. Div. 247: 56 N. y. Supp. 945. 77 Potter V. Ogden, 136 N. Y. 384; Pinckney v. Smith, 26 Hun, 524. But see Price v. Penn, supra. 78 Matter of Leinkauf, 4 Dem. 1. 79 Matter of Bowne, 19 St. Rep. 895. so Matter of Peeley, N. Y. Law J., May 13, 1890. 81 In Matter of Spieer, 1 Tuck. 80, it was held that he must be a lawyer. § 112. Parties to Peoceedings, Etc. 78 instructions. In general, it is not proper for a surrogate to ad- vise either the prosecution or the withdrawal of a contest in his court, but it would seem that the Supreme Court, possessing, as it does, general jurisdiction and supervisory power over the es- tates and persons of infants, may be asked for counsel and direc- tion by a guardian ad litem as to the propriety of his further continuing to contest a probate in the Surrogate's Court.*'* § 112. Compensation of guardian — There was, formerly, no ex- press provision in the statute, respecting the compensation of special guardians in Surrogates' Courts; but, as authority to ap- point implied an authority to compensate such a guardian, the practice was to make him an allowance payable out of the general estate, proportioned to the character and importance of the in- terest involved and the services rendered. But if statutory au- thority were required, it would seem to be given by that section of the Code which provides, in respect to a Surrogate's Court, that " each other officer, including a referee, and each witness, is entitled to the same fees, for his services * * * as he is allowed for like services in the Supreme Court." ^ Since its adoption, the Code is the sole source of the authority of a Sur- rogate's Court to allow compensation to special guardians.^ Hence a special guardian unsuccessfully opposing probate in behalf of an infant, was held to be an " unsuccessful contestant of the will," within the meaning of section 2558 before its amend- ment in 1881. As that section now stands, special guardians, appointed in a contested application for probate, or revocation of probate, are excepted from the operation of the prohibition of costs to unsuccessful contestants. Section 2561 prescribes the narrow limits within which the court may exercise its discretion as to the amount to be awarded — viz. : not exceeding seventy dollars, and ten dollars per day, in addition, for all the days less two, necessarily occupied in the trial. A special guardian who represents infants in a probate contest has no duty to discharge in reference to the estate, and his compensation should come from the infants or their estate. The costs which may be allowed by the surrogate out of the general estate are limited to those speci- fied in Co. Civ. Proc, §§ 2558, 2561.** 82 See Matter of Chittenden, 1 Tuck. 85 Matter of Budlong, 100 N. Y. 203. 251. This overrules McCue v. O'Hara, 5 83 Schell V. Hewitt, 1 Dem. 249 See Eedf. 336. A special guardian, as General Rule 50; Matter of Matthews, counsel, is not entitled to an allow- 27 Hun, 254. anee. (Matter of Johnston, 6 Dem. 8*Porster v. Kane, 1 Dem. 67. 355.) 79 Paeties to Pkoceedings, Etc. §112. In proceedings other than for, or against, probate, the special guardian of an infant party, for example, in a proceeding for an accounting, will be allowed compensation, in a proper case, even where unsuccessful.*® The rule is well settled that the surrogate has no power to compensate a special guardian for services in a proceeding which has left his court, e. g., on an appeal from his decree therein. 86 In Matter of Trust, Bansom, S., said: " The compensation of the special guardian is not to be ascertained by a comparison of his services with those of the attorneys for the accoimting party, nor with the commissions al- lowed by law for the services of the latter. In this case objections were filed by the special guardian as the only, means of procuring information which it was his plain duty to obtain. It is a mistake not uncommonly made by accounting parties and their coun- sel, to regard special guardians as in- truders in proceedings involving the rights and interests of ^infants. I have heretofore expressed my views upon the rights and duties of special guardians generally, and counsel are referred to Estates of Powers (Surr. Dec, 1888, p. 134) ; Wadsworth (6 N. Y. Supp. 932 ) . In this case the special guard- ian, in accordance with the rule of this court, has furnished for my informa- tion, and filed the same, his sworn statement, giving in detail the charac- ter of his services and the time neces- sarily occupied by him in their per- formance. I find nothing in the writ- ten argument of counsel for the ac- counting party which can possibly jus- tify me in disregarding the afSdavit of the special guardian as false, and if taken as true, it fully sustains him in every particular. Although he was un- successful, he had reasonable grounds for his action. He discharged his du- ties faithfully and honestly, and should be allowed a suitable sum for his pro- fessional labor. His own estimate seems fair, and I allow him the amount he claims. The referee cannot be al- lowed the fee paid unless stipulation by adult parties is filed. The infants'" interests, in any event, can only be charged with their proportionate share of the referee's fees, at the statutory rate." (N. Y. Law J., Jan, 26, 1892.) CHAPTER V. TRIAL PRACTICE, DEPOSITIONS, ETC. TITLE FIKST. HEAEINGS BEFORE THE SUBROGATE OB REFEREE. § 113. In general. — Surrogates' Courts, having once acquired jurisdiction of the parties and of the subject-matter of a pro- ceeding, 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 specification in respect to the ninth chapter, entitled " Evidence." Accordingly all the provisions of that chapter, except those which expressly state otherwise 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, disqualifications, and privilege of witnesses,^ the administration of oaths and affirmations,^ the issuing and enforcement of subpoenas, including subpoenas duces tecum^ and the production, competency, and effect of documen- tary evidence.* § 114. Decision to be filed — Upon a trial, the surrogate must file in his office his decision in writing, which must state, sepa- rately, the facts found and the conclusions of law. ' Either party may request a finding upon any question of fact, or a ruling upon any question of law ; and an exception may be taken' to such a finding or rulimg, or to a refusal to find or rule accordingly." 1 Co. Civ. Proc, §§ 828-841. 4 Co. Civ. Proc, §§ 921-962. See 2 Co. Civ. Proc, §§ 842-851. post, e. VI, as to competency of wit- 3 Co. Civ. Proc, §§ 852-869. As to nesses in proceedings to prove a will. surrogate's power to compel attend- 5 Co. Civ. Proc, § 2545, in part, ance of witnesses, and to punish them This section does not apply to proeeed- for contempt for nonattendance, see ings pending Sept. 1, 1880. (Mills v. Co. Civ. Proc, § 2481, subds. 3, 7 Hoffman, 92 N. Y. 181.) On a motion {amte, § 52). to vacate an order denying application [80] 81 Trial Peactice, Depositions, Etc. § 115. The purpose of this requirement was to assimilate the practice on appeals from a surrogate's decree, in the prescribed cases, to that which regulates appeals from a judgment rendered Ly a court or a referee in an action, and to substitute a system which would point out specific errors, and evolve the exact questions intended to be reviewed. It is, therefore, the duty of a party appealing from a surrogate's decree to procure to be made such findings or refusals as will present, through appropriate exceptions, the ques- tions which he desires to argue ; and if he omits to do so, no question will be presented for review except that arising upon exceptions taken during the trial.® It will be seen, therefore, that a separate statement, in a decision, of facts and conclusions of law found, is only necessary when an appeal is contemplated l)y either party, and then only with the view of informing the appellate court, by exceptions filed, of the errors relied on. Hence the surrogate's failure to file findings is at most an irregularity and does not affect the validity of the decree ;^ and is not a ground of objection to his decision on appeal,* nor cause for setting aside the decree for irregularity.® The absence of findings, separately stated, and appropriate exceptions thereto, amounts to this only, that no question is presented for review.'"^ If no appeal is taken, the irregularity is waived. ^^ § 115. Requests to find. — The requirement that, when requested thereto, the surrogate in his decision shall state separately the facts found and conclusions of law is mandatory.^^ The " re- quest " for a finding of fact or a ruling upon a question of law, which can be made to the surrogate, can only be made " upon for an administrator's account on the 9 Matter of Hesdra, 4 Misc. 37 ; 23 ground that the order had been entered N. Y. Supp. 846; s. c, as Matter of by default, the surrogate vacated the Onderdonk, 54 St. Kep. 875. order and directed an account. Held, i* Matter of Hood, supra; Matter of error to thus dispose of the merits Kellogg, 104 N. Y. 648 ; 5 St. Eep. 668 ; raised by administrator's answer on a Matter of Otis v. Hall, 6 id. 592 ; mere motion: he should have made a Matter of Falls, 29 id. 759; 10 N. Y. decision with findings of fact and con- Supp. 41 ; Matter of Marsh, 45 Hun, elusions of law. (Matter of O'Brien, 107; Matter of Potter, 32 id. 599; 45 Hun, 284; 10 St. Eep. 414.) Matter of Widmayer, 52 App. Div. Matter of Hood, 104 N. Y. 103 ; 5 301 ; 65 N. Y. Supp. 83. St. Rep. 501 ; Angevine v. Jackson, 103 n Matter of Hesdra, supra. N. Y. 470; 3 St. Rep. 643; Burger v. 12 Matter of Kaufman, 39 St. Eep. Burger, 111 N. Y. 525. 236; 14 N. Y. Supp. 901. In that ease, 1 Hood V. Hood, 5 Dem. 50 ; Lewis the surrogate had been expressly re- Y. Jones, 13 Abb. Pr. 427. quested to make findings of fact, which 8 Matter of Hood, 104 N. Y. 103. he refused to do, making a record of The appellate court may, if it sees fit, his refusal, to which a formal excep- send the ease back in order to have the tion waa taken. The General Term re- irregularity cured. (Waldo v. Waldo, versed the decree for such erroneous 32 Hun, 251.) refusal. 6 §§ 116, 117. Teial Practice, Depositions, Etc. 82 the settlement of a case," on an appeal ^^ from a decree already- entered.-'* The surrogate should make a marginal note opposite each reqtiest to find, indicating his refusal or assent, in order to relieve the labor of the appellate eourt.^^ § 116. Exceptions to surrogate's rulings. — The present Code en- tirely remodels the machinery of appeals from surrogates' decrees and orders, assimilating it to that of appeals from judgments and orders in civil actions. To correspond to these changes, ne-w rules are established -with respect to the taking and filing of ex- ceptions, the filing of a decision upon a hearing before the sur- rogate, and the settlement of a case on appeal. An exception may be taken to a ruling by a surrogate, upon the trial by him of an issue of fact, including a finding, or a refusal to find, upon a question of fact, in a case -where such an exception may be taken to a ruling of any other court upon a trial, -without a jury, of an issue of fact, as prescribed in article third of title first of chapter tenth of the Code (§ 992 et seq.). The provisions of that article, relating to the manner and effect of taking such an exception, and the settlement of a case containing the exceptions, apply to a trial before a surrogate ; for -which purpose the decree is regarded as a judgment, and notice of an exception may be filed in the surrogate's ofiice.-'® § 117. Trial before referee.— Under the Revised Statutes, before the adoption of the present Code, all issues and questions raised in a special proceeding before a surrogate -were required to be determined by him, except in the single instance of an account- ing by executors or administrators. But under the Code, the 13 Co. Civ. Proc, § 2545 ; Hartwell v. case back, with instructions to him to MeMaster, 4 Eedf. 389; Dickel v. note upon the requests his determina- Yates, 2 Dem. 229; Tilby v. Tilby, 3 tion of each proposed finding. In id. 358; Matter of Hoyt, 5 id. 284; Matter of Zerega (N. Y. Law J., Matter of Dodge, 40 Hun, 443, 451; May 15, 1893), the New York surro- revd. on another point, 105 N. Y. 585. gate said: " The findings proposed by 14 Matter of Prout, 18 Civ. Proc. the attorneys for the respective parties Eep. 270. This rule is applicable to in this proceeding by the settled prac- actions tried in the Supreme Court, tice of this court must be served, and under sfection 2486, in cases where the the allowance or disallowance of each surrogate is disabled from acting, finding, and of each conclusion of law (Matter of Chauneey, 32 Hun, 429.) proposed, must be noted by the attor- 15 Matter of Wheeler, 28 St. Rep. neys, and then submitted to the surro- 638 ; 8 N. Y. Supp. 385. In that case, gate for settlement." the surrogate did not pass upon the 16 Co. Civ. Proc, § 2545 ; Hewlett v. requests to find facts and conclusions Elmer, 103 N. Y. 156. As to when ex- of law, in a proceeding to revoke let- ceptions are necessary, and' when and ters of administration. The General how made with reference to a review Term said that the omission of the sur- of the decision on appeal, see c. XXIV, rogate would justify it in sending the post. 83 Tkial Practice, Depositions, Etc. § 118. surrogate may in any proceeding {other than one instituted for probate or revocation of probate of a will), in his discretion, " appoint a referee to take and report to the surrogate the evi- dence upon the facts, or upon a specific question of fact; to ex- amine an account rendered; to hear and determine all questions, arising upon the settlement of such an account, which the sur- rogate has power to determine; and to make a report thereon, subject, however, to confirmation or modification by the surro- gate." ^'' In probate cases, the surrogate of New York county " may, on the written consent of all the parties appearing," ap- point 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." ^* We take it that the quali- fication of authority applies to a referee, as well as to an assistant. The power of the court to so direct an assistant is absolute, and does not depend upon the consent of the parties ;^® it is only the appointment of some other person, as referee, that requires such a consent. An assistant so appointed has authority, on the hear- ing before him, to pass upon the admissibility of evidence, to which objection is interposed.^* § 118. Referee's duties and powers — A referee appointed by the surrogate " has the same power, and is entitled to the same com- pensation, as a referee appointed by the Supreme Court, for the trial of an issue of fact in au action;" and the provisions of the Code, applicable to a reference by the Supreme Court, apply to such a reference, " so far as they can be applied in substance, without regard to the form of the proceeding." ^' Just what this last clause means is not clear. " How much or how little is accomplished by this very general language, it may trouble us some day to determine. It seems to open everything and settle "Co. Civ. Proc, § 2546, in part, of Hoes (54 App. Div. 281; 66 N. Y. The surrogate may amend an order of Supp. 664), it was held proper to reference, nunc pro tunc, so as to refer order a reference to hear and deter- the issues, and not simply to direct a mine a disputed claim which the par- report of the evidence. (Matter of ties had consented should be deter- May, 53 Hun, 127.) He has power mined by the surrogate upon the under that section to direct the referee accounting. to report his opinion upon the evi- 18 Co. Civ. Proc, § 2546. In Kings dence. (Matter of Ferrigan, 42 App. county the clerk of the court may ex- Div. 1 ; 58 N. Y. Supp. 920; aflfd., 160 amine witnesses to a will (L. 1885, N. Y. 689.) Upon a petition to remove c. 367). an executor for misconduct, the sur- 19 Matter of Allemann, 1 Connqly, rogate may, of his own motion, make 441. an order of reference to take testi- 20 lb. mony. (Matter of Hale, 45 App. Div. 21 Co. Civ. Proc, § 2546, in part. 578; 61 N. Y. Supp. 596.) In Matter § 119. Tkial Peactice, Depositions, Etc. 84 nothing." ^^ It may, however, be said, in a general way, that a surrogate's referee, like a Supreme Court referee, is to be gov- erned, in the course of procedure before him, by the General Eules of Practice.^^ He has, for example, the same power as a referee in an action, to permit amendments, in a proper case.^* Prior to the repeaP^ of sections 993 and 1023 of the Code, re- lating to exceptions to a referee's " refusal to make any finding whatever," and to the submission to the referee of requests to find, those sections were applicable to a surrogate's referee, and the fact that the referee's determination was subject to the sur- rogate's approval did not dispense with the requirement.^® So, too, the referee was required to find facts and conclusions of law separately, and entirely dissociated from his opinion; failing to do so, his report would be sent back, to correct the irregularity,^'^ or for further findings^ since the prohibition of referees from making additional findings, after decision rendered, did not apply to special proceedings.^^ As a matter of practice it is still cus- tomary for a referee to state his findings and conclusions sepa- rately, but he is not required to do so.^" § 119. Action on referee's report.— The referee's report, accom- panied by the testimony taken before him, including all exhibits, must be filed within sixty days after the matter is submitted to him ; otherwise, the reference may be terminated by either party.^^ Unless the report is passed upon and confirmed, approved, modi- fied, or rejected by the 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 22 Per Fitch, J., Matter of Clark, 119 N. Y. Surr., MS. Dec. 433; Matter of X. Y. 427 ; 29 St. Rep. 682. Havemeyer, 25 Civ. Proe. Rep. 59. 23 Matter of Russell, 3 Dem. 377 28 Matter of Bayer, 54 Hun, 189; 26 [Gen. Rule 30] ; Matter of LeflSngwell, St. Rep. 803. 30 Hun, 528 [Gen. Rule 17]. 29 Matter of Bayer, supra. 24 Matter of Fithian, 15 St. Rep. 30 Matter of Woodward, 69 App. 734 ; Matter of Frank, 1 App. Div. 39 ; Div. 286 ; 74 N. Y. Supp. 755. In that s. i;., as Matter of Schneider, 36 N. Y. case the issues on a contested settle- Supp. 972. But compare Eldred v. ment of an executor's account were re- Eames, 115 N. Y. 405, which was the f erred, and the referee reported his de- case 01 a reference of a disputed claim eision without making separate find- under the Revised Statutes. ings, and his decision was confirmed 25 L. 1895, e. 946; L. 1894, c. 688. by the surrogate. Held, that the re- 26 Matter of Mellen, 56 Hun, 553 ; port of the referee was authorized, and 31 St. Rep. 770; Matter of Nlles, 47 the surrogate was only required to con- Hun, 348. And see Matter of Hicks, firm it, and not to make separate find- 14 St. Rep. 320; Broughton v. Flint, ings of fact and conclusions of law. 74 N. Y. 476. 31 Co. Civ. Proc, S§ 1019, 2.546: 27 Matter of Sears, N Y. L?w J., Matter of Santos, 31 Misc. 76; iS4 N. Y. Mar. 4, 1890; Matter of Lawrance, 8 Supp. 572. 85 Teial Peactice, Depositions, Etc. § 119. party interested in tlie proceedings upon two days' notice. ^^ The omission of the surrogate to confirm, reject, or modify a referee's report until more than ninety days have elapsed after its sub- mission does not oust the surrogate of jurisdiction of the pro- ceeding or deprive him of the power to make and enter a decree contrary to the recommendations of the report, and where such decree is made before any steps are actually taken to confirm the report on the ground of lapse of time, it is valid and effectual. ^^ The surrogate is not required to make new findings, in rendering his decision on a referee's report. The confirmation of the ref- eree's report is an approval of the rulings of the referee, and an appeal, upon exceptions to the report, will present the conclusion of the surrogate for review.^* But it would seem that upon the coming in of the report of a referee, to whom it was referred merely to take evidence and report it with his opinion, the sur- rogate should make a decision with separate findings of fact and of law, notwithstanding that the referee has already done so.^^ It has been suggested as the better course, that the surrogate should in all cases make " a full and complete decision embody- ing all the findings of fact and conclusions of law, as ultimately determined by him, after he has passed upon the referee's re- port." ^' The power of the court is not limited to confirming or refusing to confirm a referee's report. The surrogate may modify the report by drawing a different legal conclusion from facts found by the referee, and the remainder of the report can stand,^'' or he may, for cause shown, reopen the reference, with 32 Co. Civ. Proc, § 2546, as amended Matter of Flagg, N. Y. Law J., April 1899. See L. 1895, c. 796. The 8, 1893; Matter of Mellen, 56 Hun, rule of the Surrogate's Court of 553 ; Matter of Yetter, 44 App. Div. New York county is that "when a 404; 61 N. Y. Supp. 175; aflfd., with- referee's report shall be filed, together out opinion, 162 N. Y. 615; Matter of with the testimony taken before him, Woodward, 69 App. Div. 286 ; 74 N. Y. said report shall be confirmed as of Supp. 755; Matter of Bettman, 65 App. course, unless exceptions thereto shall Div. 229. be filed by any party interested in the 35 Matter of Moulton, 32 St. Rep. accounting or proceeding within eight 631; 10 N. Y. Supp. 717; Matter of days after a written notice of such O'Brien, 5 Misc. 136. filing and a copy of such report shall 36 Matter of Prout, 18 Civ. Prcc. have been served upon the opposing Rep. 270 [Kings Co. Surr. Ct. 1890]. party; and in ease exceptions shall be Substantially the same was said by the so filed, either party may bring on the Supreme Court (Fourth Dep., Gen. T., hearing of said exceptions on eight 1887), in Matter of Keef, 43 Hun, 98. days' notice, on any stated motion day 37 Matter of May, 31 St. Rep. 50; of said Surrogate's Court." (Rule ». c, 19 N. Y. Supp. 785. The proper VIII, Mar. 16, 1888.) practice, on amending report of fef- 33 Matter of Clark, 168 N. Y. 427; eree, is to obtain an order sending it 61 N. E. 769. back to make specific amendments. 34 Matter of Niles, 47 Hun, 348; (Matter of Smith, 17 St. Rep. 783.) §§ 120, 121. Teial Peactice, Depositions, Etc. 86 or without conditions, and direct another or further hearing.^* A referee's findings of fact will not be disturbed where there is a conflict of evidence, unless the findings are clearly against the weight of evidence, or are not supported by any evidence.^® § 120. Referee's fees. — A surrogate has no power to direct a referee, to whom a proceeding pending in the court has been referred, to file his report in advance of receiving his fees, or to direct that any one of the parties in the proceeding shall pay the referee before the report is filed.*" The usual practice is, in !N'ew York county at least, for referees to file their repoi-ts, to- gether with a verified memorandum of the time spent, so that their fees may be taxed by the surrogate, and provision made in the final decree or order, entered in the proceeding for payment of such fees by such parties as may be found justly chargeable with such payment; or if any party has paid the referee, and it appears, on the termination of the proceeding, that he ought not, under the circumstances, to be charged with the expense of the reference, a direction may be made for his reimbursement, either out of the assets of the estate, or by one of the parties against whom they are chargeable.*' § 121. Issues triable by jury — The Surrogate's Court is not a tribunal adapted to the determination of disputed claims. In the only case in which, under the Revised Statutes, a surrogate had jurisdiction to try such a question, he was allowed, if in his 38 An executrix not notified of a ref- tlie accounting party neglects and re- erence of her accounts, — Held entitled fuses to proceed is the proper method to have the reference opened, to enable of informing the surrogate of the cause her to sustain her account as filed, of delay; but such report is not ef- ( Matter of Gorman, 49 App. Div. 637 ; fectual as the basis of the referee's mo- 63 N. Y. Supp. 123.) The Surro- tion to tax his fees. Proper practice gate's Court has power, as a condition by the referee in such cases is to issue of opening the report of a referee, to his subpoena and cause the same to be limit the party objecting as to time in served on the accounting party, and, if the matter of examining and cross-ex- necessary, a subpoena duces tecum, and amining the witnesses to appear before to enforce obedience by commitment the referee. { Matter of Davenport, 37 for contempt. Thus the vouchers Misc. 179; 74 N. Y. Supp. 940.) would be produced for examination, 39 Matter of Odell, 1 Connoly, 94 ; and the accounting party for personal 18 St. Rep. 997; Matter of Bradley, 17 examination; whereupon the referee St. Rep. 836; Matter of Plumb, 24 should report the facts and the pro- Misc. 249 ; 53 N. Y. Supp. 558. eeedings with dates required bv settled 40 Matter of Kraus, 4 Dem. 217. practice, for the taxation of his fees. ■11 Matter of Hurd, 6 Misc. 171; 2(! On such report, a decree would be N. Y. Supp. 893 ; s. c. as Matter of proper settling the accounts and fixing Ellis, 56 St. Rep. 694. In Matter all costs, pavment of which could be of Kenny (N. Y. Law J., Oct. 24, enforced. This proceeding is referred 1890), Ransom, S., decided that "the back to the same referee, who will pro- report of the referee to the effect that ceed accordingly." 87 Teial Peactice, Depositions, Etc. §§ 122, 123. opinion it could not be satisfactorily determined without a trial by jury, to award a feigned issue to be tried at the next circuit in his county.*^ A like regulation is contained in the Code, which provides that the surrogate may, in his discretion, direct the trial by a jury, at a trial term of the Supreme Court,*^ or in the County Court, of any controverted question of fact, arising in one proceeding only, that is, a proceeding for the disposition of real property for the payment of debts, etc. The order must state, distinctly and plainly, each question of fact to be tried ; and it is the only authority necessary for the trial.*^ With the jury trial, which the appellate court is directed to order,** on reversing a surrogate's decree admitting a will to probate upon a question of fact, where there is a conflict of evidence, the Surrogate's Court has nothing to do except to admit the will, if so directed by the Supreme Court. *^ The trial of issues of fact in a contested probate, before a jury, will be mentioned hereafter in connection with the probate of wills.*® TITLE SECOND. ETC. § 122. Code sections applicable — The statutory regulations upon the topics mentioned in this title are primarily framed with reference to civil actions, and are declared to be applicable to special proceedings in Surrogates' Courts, so far as practicable.*® Those provisions of the Code, which are so made applicable to Surrogates' Courts, relate, respectively, to depositions taken and to be used within the State,*'' depositions taken without the. State for use within the State,*^ discovery of books and papers,** ser- vice of papers,^" and mistakes, omissions, defects, and irregu- larities.®* § 123. Taking depositions in the State. — The power granted, by the present Code, to Surrogates' Courts, to cause depositions to 42 2R. S. 102, §11. And see L. 1847, mitted to another jury. (Matter of c. 280, § 45. Booth, 13 St. Rep. 344.) *3 Co. Civ. Proe., § 2547, as amended 45 Chapter VI, post. 1895. 4eCo. Civ. Proc, § 2538. «Co. Civ. Proc, § 2588. See Mat- 47 Co. Civ. Proc, §§ 870-886. ter of Hunt, 110 N. Y. 278; Matter of 48 Co. Civ. Proc, §§ 887-913. Campbell, 48 Hun, 417; and c. XXIV, 49 Co. Civ. Proc, §§ 803-809. post. On setting aside the verdict of a 50 Co. Civ. Proc, §§ 796-802. jury on the issue as to the proper exe- 61 Co. Civ. Proc, §§ 721-730. cution of a will the case must be sub- § 124. Tbial Pkactice, Depositions, Etc. 88 be taken ■within the State, for nse in those courts, is new. It embraces the subjects more familiarly known under the titles of examinations before trial, taking testimony de bene esse, and perpetuating testimony, as well as taking depositions by consent. A number of questions, arising under the provisions of the Code, upon these topics, have already been adjudicated by the courts. Their consideration is more appropriate to a work upon general practice. It will be borne in mind, in general, in applying to Surrogates' Courts these and the other above-mentioned provi- sions, that the application is subject to the exception and quali- fication contained in the section above quoted, viz., " except where a contrary intent is expressed in, or plainly implied from the context of, a provision " of chapter eighteenth of the Code, and " so far as they can be applied to the substance and subject-matter of a proceeding, without regard to its form." ^^ § 124. Taking depositions without the State Surrogates have had authority, since 1837, on any proceeding or matter in con- troversy before them, to issue a commission to take the testimony of a witness in any other State or Territory of the United States, or any foreign place, when required by a party, in the same man- ner as by law the same might be done in any court of record.®*^ This power is substantially preserved by section 2538 of the Code ; but the provisions thereby made applicable to surrogates' pro- ceedings contain important amendments and additions to the com- paratively meagre provisions of the Revised Statutes. They ab- rogate numerous arbitrary and technical rules prevailing under those statutes, allow the issuing of a commission without inter- rogatories, and, in specified new cases, provide for an open com- mission, and for an order to take depositions instead of a com- mission, permit the interrogatories, in a proper case, to be in a foreign language, and authorize the issuing of letters rogatory.^* B2 Co. Civ. Proc, § 2538. Surrogate's Court has power, in its B3L. 1837, c. 460, § 77 (2 R. S. 393, discretion, to direct the issuing of a §§ 11-24). Section 77 was repealed by commission to examine, before trial, a chapter 245 of the Laws of 1880, and party to a proceeding pending before section 2538 was. adopted to vest in the it. (Matter of Plumb, 135 N. Y. 661 ; court the same power. (Cadmus v. 22 Civ. Proc. Rep. 209.) See Matter Oakley, 2 Dem. 298; Henry v. Henry, of Hodgman. 11 App. Div. 344; 42 4 id. 253; -Bull v. Kendriek, id. 330, N. Y. Supp. 1004; aflFd., 161 N. Y. 627. all probate cases.) The right, how- B4As to commissions out of chan- eyer, of the court to issue a commis- eery in the case of nonresident wit- sion was based in all these cases upon nesses, see Matter of Hornby, 2 Paige, the general authority conferred by sec- 429 ; Stephens v. Brooks, Clarke, 86. tion 2538. It is now settled that a S'J Tkial Peactice, Depositions, Etc. §§ 125-127. § 125. Examination of disabled witnesses. — Former statutes"'* made it the duty of the surrogate, upon an application to prove a will, where a material witness was disabled from attending by age, sickness, or infirmity, to proceed to the latter's residence, if in the surrogate's county, and take his testimony; and permitted the surrogate, if the witness resided in another county, to direct a like hearing before the surrogate of that county. These pro- visions have been preserved, in a modified form, in the present Code. The section which relates to a witness in the surrogate's county provides that " upon the application of a party to a special proceeding, and upon proof, by affidavit, to the satisfaction of the surrogate, that the testimony of a witness in his county, who is so aged, sick, or infirm, as to be unable to attend before him to be examined, is material and necessary to the applicant, the surrogate must, where the special proceeding was instituted to procure the probate or revocation of probate of a vsdll, and, in any other case, may, in his discretion, proceed to the place where the witness is, and there, as in open court, take his examination. Such notice of the time and place of taking the examination, as the surrogate prescribes, must be given, by the party applying therefor, to each other party, except a party who has failed to appear as required by the citation. The surrogate may also, in his discretion, require notice to be given to any other person in- terested." ®® This enactment extends the scope of the original, by including a proceeding for the revocation of probate of a will, and by permitting the surrogate to take testimony in like man- ner, in any special proceeding before him. The surrogate may appoint a referee to take and report the testimony of the witness, instead of personally attending."^ § 126. Subscribing witness to will. — The statutory provisions for the examination of an aged, sick, or infirm subscribing wit- ness to a will, who resides in another county of this State *** and of such as are disabled by absence from the State and otherwise will be mentioned in a subsequent chapter.™ § 127. Discovery of books and papers — Beyond the power, con- ferred by the Revised Statutes, to issue a subpoena " to compel 55 L. 1837, e. 460, §§ 12-15; L. 1841, tence but one. (Matter of Gee, 24 Civ. c. 129. Proc. Rep. 211; 33 N. Y. Supp. 425.) 56 Co. Civ. Proc, § 2539 ; Matter of 58 Co. Civ. Proc, § 2540. McCoskry, 5 Dem. 256 ; 10 Civ. Proc 59 Co. Civ. Proc, § 2619. See article Rec. 178. second of title fourth of chapter VI, 57 Co. Civ. Proc, § 2540, last sen- post. § 127. Teial Peactice, Depositions, Etc. 90 the production of any paper material to any inquiry, pending in his court," the surrogate could not, before the adoption of the eighteenth chapter of the present Code, compel the discovery of documentary evidence in aid of a special proceeding pending before him. He now has the same pov^er as a court of record, in an action, to order a party to such a proceeding to produce and discover, or to give to the other party an inspection and copy, or permission to take a copy, of a book, document, or other paper in his possession, or under his control, relating to the merits of the special proceeding, or of the defense therein.*"* But the surrogate has no authority to require an administrator to deposit the books and papers of the estate for the inspection of a party interested in a litigation for the probate of a deceased owner's will, upon the simple statement that the administrator is hostile to the petitioner, and refuses him the same opportunity to search for letters, books, etc., which he gives to his adversary, it not appearing that any such documents favorable to his interests exist. ®^ He has power to order the examination of parties and others before trial,®* and of persons not parties, for the purpose of a motion;®^ also to order the taking of depositions, or to issue a commission or letters rogatory, where testimony is to be pro- cured without the State.®* 80 Co. Civ. Proc.^ § 803 et seq. See examine the private papers of deceased, Matter of Smith, 15 St. Rep. 733. in the administrator's hands, bearing Upon a contested probate, an inspec- on the personal relations involved in tion of the will and examination of the the issues ; family letters being first signatures to see if they were made submitted to the court to determine with the same ink and at the same their relevancy, before disclosing their time is proper. (Matter of Board- contents by putting them in evidence, man, 46 St. Rep. 444.) See Matter of 62 Co. Civ. Proc, §§ 870, 871, 2538; Woodward, 28 Misc. 602; 59 N. Y. Matter of Plumb, 135 N. Y. 661; 48 Supp. 1080. St. Rep. 569. 61 Matter of Stokes, 28 Hun, 564; 63 Co. Civ. Proc, §§ 885, 2538. See affg. Dale v. Stokes, 5 Redf. 586. In Revnolds v. Parkes, 2 Dem. 399 ; Camp Taylor's Will (10 Abb. Pr. [N. S.] 300), v. Fraser. 4 id. 212. it was held, that the contestants might e^Co. Civ. Proc, §§ 887-913, 2538. CHAPTER VI THE PROBATE OF WILLS, TITLE FIEST. PEOCEEDINGS BEFOEE APPLICATION POR PROBATE. § 128. Preliminary observations. — 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 owner- ship in the property frequently, if not usually, depends on an obscure and complicated state of facts, and, therefore, 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 proceedings had for this purpose, the identifi- cation and collection of the property, and its allotment and distri- bution 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. § 129. Production of will and application for probate. — The. law prescribes no formalities with respect to the opening and reading of the will of a decedent, but this is left as a question of fair dealing among persons having diverse interests in the property disposed of by it. And the fact that the will was first opened and read by one claiming an interest in the estate casts no sus- picion on his claim. But where there are other reasons to suspect fraud, a clandestine use of knowledge acquired from the will, and concealed from others equally interested, might be an important circumstance, if a controversy should arise between the parties. The proper course for those into whose hands the will falls, is to give immediate notice of its existence to the parties most nearly interested, and to the executor named therein. Where the will [91] § 130. The Probate oi? "Wills. 92 has been deposited in a public office, as permitted by statute, the duty of the custodian, upon the testator's death, is expressly pre- scribed.^ A surrogate has no authority to order a safe deposit company to deliver up a will, left with it by a testator, to a petitioner for probate;^ though from the necessities of the case, a surrogate frequently orders the examination of the testator^s papers to be made, for the purpose of discovering a will, and the deposit companies are known to invariably recognize the order. § 130. 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 Revised Statutes take away the remedy which creditors had against those who, without such authority, interfere with the assets, and require that the executor or administrator duly ap- pointed 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." * This does not mean that a person vsTongfuUy interfering is not liable to an action; but only that he is not so liable inihe character of an executor or administrator. The statute further declares, that he " shall be responsible as a wrongdoer in the proper action, to the executors or general or special administra- tors 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 administrator to be appointed, or letters testa- mentary to be issued; and the executor or administrator so ap- pointed may recover the property.* Another provision of the statute declares, that " every person becoming possessed of property of a testator or intestate, without 1 See § 64, cmte. * Muir v. Trustees, etc., 3 Barb. Ch. 2 Matter of Foos, 2 Dem. 600. 477; Babcock v. Booth, 2 Hill, 181. 3 2 R. S. 449, § 17 ; Mills v. Mills, 23 St. Rep. 604, 93 Tjie Pkobate of Wills. § 131. 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 enti- tled thereto, and shall not be allowed to retain or deduct there- from any debt due to him." * But, in connection vnth. this pro- vision, it should be observed that, if such a person subsequently takes out letters, the acts which were before tortious may be thereby legalized;® 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 own first act of unauthorized interference.* § 131. 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 limited. 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.* ITeverthelesB, although a technical title to the effects vests in him at the mo- ment of the testator's death, he cannot fully exercise his right of possession until he has been duly recognized as executor by the proper tribunal. The statute expressly provides, that no ex- ecutor, 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 funeral charges, nor to interfere with the estate, farther than is necessary for its preservation. ■^'* Where any important interference with the assets is necessary for other purposes than the preservation of the estate, before probate can be had, application should be made for the appointment of a tem- porary administrator. 5 Co. Civ. Proc, § 2706, as amended 515; Matter of Greeley, 15 Abb. Pr. 1893, taken from 2 E. S. 81, § 60. (N. S.) 393. See Wever v. Marvin, 14 Barb. 376; 10 2 E. S. 71, § 16, now ineorpo- Brown v. Brown, 1 Barb. Ch. 189; rated in Co. Civ. Proc., § 2613 (new Matter of Flandrow, 28 Hun, 279; to the Code). The acceptance of Humbert v. Wurster, 22 id. 405; security from a surviving partner Quaekenbush v. Quackenbush, 42 id. upon his purchase of the assets of the 329, 332; Matter of Fithian, 44 id. firm pursuant to a provision of the 457. partnership agreement, is an act for 6 Priest V. Watkins, 2 Hill, 225; the preservation of the estate within Matter of Faulkner, 7 id. 181. the power of the executors of the de- 7 Bellinger v. Ford, 21 Barb. 311. ceased partner before letters. (Hull 8 Matter of Farrell, 1 Tuck. 110. v. Cartledge, 18 App. Div. 54; 45 N. 9 Hartnett v. Wandell, 60 N. Y. 349: Y. Supp. 450.) Van Schaack v. Saunders, 32 Hun, b lo2. The Peobate of Wills. 94 § 132. Necessity far probate.— In respect to wills of real prop- erty, although the devisee takes directly under the will, and not through the executor, except where the devise is to the latter in trust, it is desirable for many reasons that wills of realty, as well as wills of personalty, should be regularly proved and recorded in the office of the proper surrogate. ^^ The law never presumes a will in the absence of proof, nor, where the proof tends to show a will of personal property only, can it be presumed to have em- braced the real property of the testator. ^^ And although an ancient will may be admitted as evidence of title, without direct proof of execution or probate, it is only so when it appears to be of the age of at least thirty years,^^ and is shown to have come from the proper custody, or where such an account of it is given as may be reasonably expected under the circumstances and as affords a presumption of its genuineness; but, in every case, a corresponding possession under the. will for at least thirty years must be shown.-** A more important reason for the probate of wills of realty, is that unless the will is proved and recorded in the surrogate's office, or established by action, within four years after the tes- tator's death, the title of a purchaser in good faith, and for a valuable consideration, from the heirs of the testator, is not de- feated or impaired by virtue of a devise in the will. This limi- tation of four years, however, is subject to the condition that " 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 four years do 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. ^^ 11 See Harrison v. Caswell, 32 App. computed from the testator's death. Div. 134; 52 N. Y. Supp. 664. (Id.) A possession of less than thirty 12 Duke of Cumberland v. Graves, 9 years is not enough, though more than Barb. 595 ; Brant v. Livermore, 10 thirty years have elapsed since the exe- Johns. 358. cution of the will. (Jackson v. Blan- 13 Co. Civ. Proo., § 2632, as amended shan, 3 Johns. 292.) And see Jackson 1901. See also Id., § 2631. v. Thompson, 6 Cow. 178; Jackson v. 14 But mere efflux of time will not Christman, 4 Wend. 277; Jackson v. authorize a will of thirty years' stand- Laroway, 3 Johns. Cas. 283 ; Brad- ing to be given in evidence without street v. Clarke, 12 Wend. 602, 677; proof. And a possession under it for Jackson v. Luquere, 5 Cow. 221. less than thirty years is not enough. 15 Co. Civ. Proc, § 2628, adopting (Staring v. Bowen, 6 Barb. 109.) /* substantially 1 R. S. 749, § 3. The ex- seems that the thirty years are to be ception of the case of a concealment of^ 05 The PnoBATE OF Wills. §§133,134. § 133. Caveat against probate. — Before the Kevised Statutes it was the practice, when any one intended to make objection to the probate of a will or grant of administration, to file a caveat with the siirrogate ; and such a caveat might be filed by a mere stranger who had no interest under the will; and in such a case the surrogate was required to cause the parties and witnesses to appear before him, and hear and determine the matter in contro- versy, and grant such probate, letters testamentary, or of admin- istration, as should be agreeable to law.^® The Revised Statutes, however, omitted the provisions in regard to the caveat, and pro- vided that, as to wills of personal property, probate might be con- tested by any one of the next of kin to the testator, on allegations filed within the year.-''' Subsequently, provision was made for a contest by any person having a right, upon the original applica- tion for probate of any will, on filing with the surrogate, before probate made, a request in writing that all the witnesses be exam- ined.^* And these two methods of objecting to probate are sub- stantially preserved by the Code of Civil Procedure.-'® Objection will not be heard as to the right of the party to contest on the ground of want of interest; but the question of interest will be determined with the main question.^** TITLE SECOND. JUEISDICTIOK^ OF PEOBATE. ARTICLE FIRST. ESTABLISHMENT OF WILLS BY CIVIL ACTION. § 134. Where original will cannot be obtained. — Surrogates' Courts, and they only, have authority to issue letters testament- ary and of administration. Letters testamentary or of adminis- tration, with the will annexed, are granted upon the Surrogate's the will does not apply where the de- devisees who are under age, does not visees or some of them have knowledge apply to those who were not born until and possession of the will, and it is after the testator died. (Id.) taken from such possession clandes- 16 l R. ij. 1813, 446; Reid v. Vander- tinely by an heir, and secreted or de- heyden, 5 Cow. 719. stroyed. It only applies to a conceal- 17 2 R. S. 61, §§ 30, 31. See Co. Civ. ment which leaves the devisees in ig- Proc, §§ 2647, 2648. noranee of their rights under the will, 18 L. 1837, c. 460, § 11. and deprives them of knowledge of its 19 See §§ 2617, 2618, 2647, 2648, c. existence. (Cole v. Gourlay, 79 N. Y. VIII, post. 527; Fox v. Fee, 167 N. Y. 44; 60 N. E. 20 Norton v. Lawrence, 1 Redf. 473. Rep. 281.) The exception in favor of See ante, §§ 98, 104. §§ 135, 136. The Peobate of Wills. 96 Court's own decree admitting the will to probate, or upon the judgment and decree of the Supreme or other superior courts of record of our own State, or of the courts of some other State or foreign country. Letters issued upon a probate decree granted by a foreign tribunal are called ancillary letters. The cases in which a will may be proved — i. e., established, by an action, in the courts of this State, — are of three classes. The first class is of mils of real or personal property, or both, executed in such a manner, and under such circumstances, that they might, under the laws of this State, be admitted to probate in a Surrogate's Court, " but the original will is in another State or country, under such circumstances that it cannot be obtained for that purposei" ^^ A will which " has been lost or destroyed by accident or design, before it was duly proved and recorded within the State," may also be established by an action.^^ § 135. Certain foreign wills of personalty. — The third class of wills which may be established by action is that of wills of per- sonal property made by a person residing out of the State at the time of its execution or at the time of his death, and executed according to the laws of the State or country in which it was exe- cuted 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 our laws.^ §136. Judgment establishing will. — If, in such an action, the validity of the will is satisfactorily shown, the court must render final judgment establishing it. But if the ynW. was that of a resident of the State at the time of his death, the judgment estab- lishing it does not affect the construction or validity of any pro- vision contained therein; and such a question, arising with respect to any provision, must be determined in the same or another action, or in a special proceeding, as if the will was executed within the State. ^* The provision prevents residents from evad- ing the laws of the State, governing the substance of testament- ary dispositions, by resorting to execution in a foreign State or 21 Co. Civ. Proc, § 1861, subd. 1. 143; 2.5 N. Y. Supp. 908.) But see This section applies to wills made be- Plant v. Harrison, 36 Misc. 649; 74 fore, as well as to those made after, N. Y. Supp. 411. September 1, 1880. (Co. Civ. Proc, 22 Co. Civ. Proc, § 1861, subd. 1. § 1867.) In his edition of the Code, See title 6 of this chapter for proeeed- :\rr. Throop traces the history of this ings to prove a lost or destroyed will, jurisdiction. An action under that 23 Co. Civ. Proc, § 1861, subd. 2. section to prove and establish the will Co. Civ. Proc, § 2611, enumerates the of a resident of another State which wills which are provable in Surrogates' has been proved in such State is not Courts. authorir,ed. < Clark v. Poor, 73 Hun, 24 Co. Civ. Proc, § 1862. 97 The Probate of "Wills. § 137. country. Where the parties appearing or duly served in the action include all those who would have been necessary parties to a proceeding for the probate in a Surrogate's Court, the final judgment establishing the will must direct that an exemplified copy be transmitted to the surrogate having jurisdiction, and be recorded in his office; and that letters testamentary, or of admin- istration vsdth the will annexed, be issued from his court as upon a will duly proved before him.^^ A copy of the will so established miist be incorporated into the final judgment, and the surrogate must record the same, and issue letters as directed in the judg- ment. ^^ § 137. Action to determine validity, etc., of a devise. — Besides the various actions in which the validity of a devise may be inci- dentally determined, — as in ejectment, partition, or in actions to determine conflicting claims to real property, and also in a proper case, in a suit quia timet,^ — the statute^ provides for the determination of the validity, construction, and effect, under the laws of this State, of a devise of real property situated within this State, or of an interest in such property which would descend to an intestate's heirs. For that purpose the action may be brought, or rather such relief may be had, " in like manner as the validity of a deed purporting to convey lands may be determined." It will be noticed, that it is not the validity of the will^ but of a disposition made in a will, that may be determined. The courts of equity of this State have no inherent jurisdiction to establish a will.^® It is specially provided, however, that this remedy by action cannot be availed of by one who was, before the commence- ment of the action, duly cited in a special proceeding in a Surro- gate's Court, under section 2624, in which the question in contro- versy was determined by the Surrogate's Court. The judgment in such an action may perpetually enjoin any party from setting up, or from impeaching, the devise, or otherwise making any claim in contravention of the determination of the court, as justice requires. 25 Co. Civ. Proc, § 1863. erty, and to obtain possession as heir- 26 Co. Civ. Proc, § 1864. at-law of the property now held by 27 See ante, § 60. another under the will, since a perfect 28 Co. Civ. Proc., § 1866. An heir- remedy at law exists. (Jones v. Rich- at-law cannot maintain an action ards, 24 Misc. 625.) under this section to obtain a con- 29 Anderson v. Anderson, 112 N. Y. struction of the will, for the pur- 104; 20 St. Rep. 344. See Smith v. pose of having certain dispositions of Hilton, 50 Hun, 236; 19 St. Rep. real estate declared invalid, there be- 340. ing no trust of the property in ques- 30 This section and the following one tlon, though there is of other prop- (§ 1867) were intended to furnish the 7 § 138. The Peobate of Wills. 9S § 138. Action to determine validity of probate. — An entirely new remedy was created by L. 1892, c. 591,^* by which " the valid- ity of the probate " of a will or codicil proved and admitted in a Surrogate's Court of this State may be determined, at the instance of " any person interested in the will or codicil," in an action in the Supreme Court. Probably to obviate the construc- tion placed by the courts upon the phraseology of this section, to the effect that the remedy furnished was not available to one claiming in hostility to the will,®^ the act was amended in 1897^* so as to provide that " any person interested as heir-at-law, next of kin or otherwise, in any estate, any portion of which is dis- posed of, or affected, or any portion of which is attempted to be disposed of, or affected, by a will or codicil admitted to probate in this State, as provided by the Code of Civil Procedure, within two years prior to the passage of this act, or any heir-at-law or next of kin of the testator making such will, may cause the valid- ity, or invalidity, of the probate thereof to be determined." ^* The issue of the pleadings in such action is confined to the question whether the writing produced is or is not the last will and codicil of the testator, or either.^® It must be tried by a jury,^® and the verdict thereon is conclusive, as to real or personal prop- only statutory rule governing ^he gen- both of which were decided prior to eral subject-matter treated of in them. Lewis v. Cook, supra. (Horton v. Cantwell, 108 N. Y. 255; 33 L. 1897, c. 701, superseding L. 13 St. Rep. 615.) The section changes 1897, c. 104. (Reid v. Curtin, 51 App. the prior rule laid down in Wager v. Div. 545; 64 N. Y. Supp. 833.) Wager, 89 N. Y. 161. See Adams v. 3* The remedy provided by the act Becker, 47 Hun, 65 ; 8 N. Y. Supp. 260. applies to all wills whether of real or It was held in an action under L. 1853, personal property (Snow v. Hamil- c. 238, of which section 1866 is a substi- ton, supra) ; even though the testator tute, that at least two of the witnesses died prior thereto. (Lewis v. Cook, 89 (that being the number required to be Hun, 183, reversed, on another point, examined by the surrogate on the proof 150 N. Y. 163.) of wills ) must be called and examined, 35 Upon the trial, the party inter- exeept in the event of death, insanity, ested in sustaining the will has the or absence, or unless the heir has affirmative. He must offer in evidence waived his right (Chapman v. Eodgers, the will, with proof of its probate, and 12 Hun, 342) ; although, in the trial of rest. Thereupon the burden is upon other issues, where it becomes neces- the contestant to establish its want of sary to give a will in evidence, it is not validity. See Hogan v. Stone, 68 App. necessary to call both witnesses. (Id., Div. 60; 74 N. Y. Supp. 109; Dobie v. per Learned, P. J.) Armstrong, 160 N. Y. 584; 55 N. E. 31 Co. Civ. Proc, § 2653a. 302. 32 Lewis V. Cook, 150 N. Y. 163; 44 sa A verdict may be directed. (Hawke N. E. 778; Whitney v. Britton, 16 v. Hawke, 82 Hun, 439; 31 N. Y. Supp. App. Div. 457; 45 N. Y. Supp. 1150; 968; Katz v. Schnaier, 87 Hun, 343; Wallace v. Payne, 14 App. Div. 597; 34 N. Y. Supp. 315. A general ver- 43 N. Y. Supp. 1119 (reargument of diet against the will cannot stand if 9 App. Div. 34). But see, contra, any of the grounds alleged were in- Snow V. Hamilton, 90 Hun, 157, and sufficient to nullify the instrument. Thomas v. Thomas, 9 App. Div. 487, (Buchanan v. Belsey, 65 App. Div. 58. ) 99 The Peobate of Wills. §§ 139, 140. erty, unless a new trial be granted, or the judgment thereon be reversed or vacated.*^ The action must be commenced within two years after the will or codicil, if one of real property, has been admitted to probate, or, in case of a person's nonage, unsound mind, imprisonment, or absence from the State, within two years after such disability has been removed. If, however, the will is one of personalty, the action cannot be maintained after the expi- ration of one year.^* AETICLE SECOND. I PROOF OF WILLS IN SUEEOGATEs' COUETS. § 139. What wills provable by surrogate. — l^ot every instrument executed by a decedent, as and for his last will and testament, is provable in a Surrogate's Court in this State. Independently of a restriction as to a testator's age, the statute imposes certain limitations, with respect both to the formalities of execution and attestation, and to the testator's residence and the location of his property. Thus, the will of a resident of New York, executed in France according to the French law, and not according to the law of this State, and the will of a resident of France who dies leaving no property situated, or which afterwards comes, here, are within the excluded classes. These limitations will be con- sidered separately. § 140. Jurisdiction as affected by mode of execution. — The statute prescribes certain formalities for the execution of a will, which are considered in detail in a subsequent article of this chapter. But it is not in all cases essential that a will should be executed with those formalities, in order to be proved in a Surrogate's Court of this State. Certain wills of personalty, which may be termed foreign wills, may be proved in like manner, although not exe- cuted with the solemnities prescribed in the local statutes. The Code provides that a will of real or personal property, exe- cuted as prescribed by the laws of the State, or a will of personal property, executed without the State, and within the United States, the dominion of Canada, or the kingdom of Great Britain and Ireland, as prescribed by the laws of the State or country where it is or was executed, or a will of personal property, exe- cuted by a person not a resident of the State, according to the 37 One thus bound cannot object to 38 Long v. Rodgers, 79 Hun, 441 ; 29 the jurisdiction because another per- N. Y. Supp. 981; Katz v. Schnaier, 87 son who was a proper party had not Hun, 343; 34 N. Y. Supp. 315. been made such. (Matter of Ruppaner, 9 App. Div. 422; 41 N. Y. Supp. 212.) § 141. The Peobate of Wills. 100 laws of the testator's residenee, may be proved in a Surrogate's Gourt.^^ It will be noted that this provision of the statute makes a dis- tinction between (1) wills of real property, and (2) wills of per- sonal property. Wills of the former class, to be entitled to origi- nal probate here, must be executed and attested with the formali- ties prescribed by our statute. It may be presiuned that " real property " refers to lands situated within this State. Wills of the latter class must be executed and attested with the formali- ties prescribed either (1) by the statutes of this State; or (2) by the laws of the place of execution, provided that place is a sister State, or Canada, or the kingdom of Great Britain and Ireland; or (3) by the laws of the testator's residence, in case he was a non- resident, of the State. The time which determines the residence of a testator, for the purposes of the above-mentioned rules, is the time of the execution of the will, and not the death of the testator. Hence it is provided that " the right to have a -will ad- mitted 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." ** § 141. Jurisdiction as affected by residence, and locus of property. — The other class of limitations upon the jurisdiction of Surro- gates' Gourts, to admit wills to probate, is specified by a section of the Gode,*^ which gives to the Surrogate's Gourt of each county jurisdiction, exclusive of every other Surrogate's Court, to take the proof of a will, and to grant letters thereupon, in the cases specified in the statute. These cases will be discussed when we 38 Co. Civ. Proo., § 2611, as amended capable of being proved" in a Surro- 1893. As to what law governs the gate's Court, as prescribed. The ques- probate of wills, see article third of tion, therefore, whether a will of per- title fourth of this chapter, § 177, sonalty made by a person dying before post. the date specified, is so executed as to *o Co. Civ. Proc, § 2611, as amended be capable of proof in a Surrogate's 1893; former §§ 2612, 2613 are now Court, must be determined in view of consolidated with § 2611, the whole of the former rule of law, according to which is declared by the last clause which such a will was deemed duly exe- thereof (former § 2613) to apply only cuted, if executed with the formalities " to a will executed by a person dying prescribed by the law of the place after the eleventh day of April, in the where the testator was domiciled at year 1876; and it does not invalidate the time of his death. (Moultrie v. a will executed before that date, which Hunt, 23 N. Y. 394. ) In such a case, would have been valid but for the en- if a Surrogate's Court has no jurisdic- actment of sections 1 and 2 of chapter tion, the will may be established in an 118 of L. 1876, except where such a action (see Co. Civ. Proc, § 1861, subd. will is revoked or altered by a will 2, and § 1867). which those sections render valid, or 4i Co. Civ. Proc, § 2476. 101 The Pkobate of Wili>s. § 142. come to examine the question of the jurisdiction of the surrogates of the several counties of the State — how far it is exclusive or otherwise.*^ It may, however, be useful to observe, in this place, by way of analysis, that the statute provides for two general classes of cases: 1. Wills of residents of the State. 2. Wills of nonresidents. Probate may be taken in all cases of wills of residents, and in some cases of wills of nonresidents. The cases where application for probate of the will of a nonresident** will be entertained may be arranged under two heads: (a) Where there is personal property in the State. (&) Where real property of the decedent, to which the will relates, or which a surrogate might direct to be sold, etc., for debts, etc., lies in the State. The cases in which the statute expressly authorizes probate of the will of a nonresident, on the ground that personal property of the testator is in the State, are again divisible into four classes: 1. Where he dies within the State, leaving personal property therein.** 2. Where he dies within the State, leaving personal property which thereafter comes into the State. 3. Where he dies without, leaving personal property within, the State. 4. Where he dies without the State, leaving personal pr'operty which there- after comes within the State. The general plan, then, upon which the statute may be stated to proceed, is to allow surrogates to take proof of a duly executed will, independently of the place of the testator's death, where he resided within the State, or where, re- siding without the State, he left real property therein, affected by the will, or subject to a surrogate's disposition, or left personal property in, or which after his death comes into, the State. § 142. Assets coining into State after death. — These provisions supply two cases omitted in the original, viz., where a noninhabit- 42 See post, § 143. dent, except that the beneficiaries, only. 43 See L. 1894, c. 731. That statute need be cited. The purpose of that act provides, in substance, that the will of is obscure, but we do not think it was any citizen, or, if female, whose father intended to enlarge the jurisdiction of or husband shall have previously de- the surrogates as ailected by the mode clared his intention to become such of execution of a will of real property, citizen, who shall die resident in Great a Jurisdiction was formerly made Britain or any of its dependencies, to depend upon the existence of " as- whieh has been proven in such foreign sets:" the expression above employed jurisdiction and which affects prop- is "personal property," because the erty in this State, shall be admitted former term, as now defined, does not to probate upon production of a copy include effects exempted by law in thereof and of the proofs, certified by favor of the widow, etc., but applies the United States consul ; but the same exclusively to personal property ap- proceedings shall be had in the Surro- plicable to the payment of debts. Co. gate's Court as in the case of a resi- Civ. Proc, § 2514, subd. 2. § 142. The Pkobate of Wills. 102 ant testator dies in any county in the State, leaving no assets in the State, but assets thereafter come within the county of his decease or any other county; and where a noninhabitant testator dies in any county in the State, leaving no assets there, but leav- ing assets in some other county in the State; thus superseding a ruling substantially to the effect that Surrogates' Courts may take proof of wills, either (1) where the Legislature has conferred jurisdiction; or (2), in an analogous case, where jurisdiction has not been so conferred. It is true, the defects referred to were theoretical rather than practical, since, as the smallest amount of assets is enough to sustain an application for probate, it would scarcely be possible for any one to die in a county without leaving assets enough therein for that purpose.** The fact that the assets were brought here irregularly, after decedent's death, upon which letters were issued here, will not deprive the surrogate of juris- diction to decree distribution.** The proviso that personal prop- erty of a nonresident, coming into the State after his death, must, in order to give jurisdiction to our courts, be such as " remains unadministered," is in consonance with principles of international and interstate comity recognized as controlling under the former statutes.*^ 45 In Kohler v. Knapp (1 Bradf. Dem. 242 ; White v. Nelson, 2 id. 416. 241), the application for probate was On the other hand, funds transmit- sustained on the ground that an old ted to this State by a foreign executor cloak belonging to the testator had af- to be paid over pursuant to a will are terwards come into the county of his not a basis for the grant of adminis- decease. The surrogate has jurisdio- tration here. (Sedgwick v. Ashburner, tion to take proof of a nonresident de- 1 Bradf. 105.) In Townsend v. Pell cedent's will where a note secured by (3 Dem. 367), a nonresident of the mortgage on land situated in another State died without its limits, leaving State has come into this State since personal property in New York county, testator's death (Matter of Hopper, 5 which was taken into actual custody Dem. 242 ) ; and so where decedent had by a domiciliary executrix before the an interest in a life insurance policy filing of a petition in the Surrogate's of a New York company (Johnston v. Court of that county, in pursuance Smith, 25 Hun, 171) ; and where he whereof the will was admitted to pro- had a claim against a resident of the bate here. Held, that the court had surrogate's county, for money depos- no jurisdiction. See also Gulick v. ited with him, notwithstanding it was Gulick, 21 How. Pr. 22 ; 33 Barb. 92 ; subsequently shown to be invalid and Parsons v. Lyman, 20 N. Y. 103; 18 incapable of enforcement. (Sullivan v. How. Pr. 193. Fosdick, 101 Hun, 174.) For other « Matter of Hughes, 95 N. Y. 55. illustrations, see Matter of Drowne, *7 Sedgwick v. Ashburner, 1 Bradf. 18 St. Kep, 981 ; Booth v. Timoney, 3 105. 103 The Peobate of Wills. § 143. TITLE THIRD. APPLICATION FOE PEOBATE. ARTICLE FIRST. APPLICATION, WHEEE MADE. § 143. Exclusive jurisdiction of one surrogate. — Assuming that the ■will is one of which a surrogate is authorized to take the proof, it becomes necessary to determine in which county the application should be made. In some instances the applicant is confined to one particular county, while in others the surrogates of two or more counties have concurrent jurisdiction. The Surrogate's Court of each county has jurisdiction, ex- clusive of every other Surrogate's Court, to take the proof of a will, and to grant letters thereupon, in either of the following cases: 1. Where the decedent was, at the time of his death, a resident of that county, whether his death happened there or else- where. 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 remains unadministered. 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 let- ters of administration, under either of the two last preceding clauses (2 and 3), has not been filed in any Surrogate's Court; but real property of the decedent, to which the will relates, or which is subject to disposition pursuant to a surrogate's decree for the payment of the decedent's debts, etc., is situated within that county, and no other.** It will be observed that the first of these four clauses relates to residents, while the remaining three apply to nonresidents of the State; and that, of the last-named three, the first two contemplate a jurisdiction depending upon residence, place of death, and locality of personalty, while, under the final clause, jurisdiction depends upon residence and locality of realty, and cannot, in any case, be exercised where it has been invoked under either of the two preceding clauses. « Co. Civ. Proc, § 2476. § 143a. The Peobate of Wills. 104 § 143a. Residence in county.— The first inquiry, therefore, in this connection, is as to the testator's residence. If he was a resi- dent of the State, then, no matter where his death occurred, probate can be had only in the county of such residence.*® The word " resident " throughout this section replaces the word " in- habitant " in the original statute. The words " resident " and " residence " are not expressly defined in the Code, and I ex- pressed an opinion in former editions of the present book, that the context in each case seemed to require these words to be con- strued as indicating the permanent residence — the home, that is, the " domicile;" ^° and that the general distinction taken by the decisions, between " residence " and " domicile," was inapplicable to the word " reside," and its derivatives, as used in the Code. It has since been determined that, while the distinction between " residence " and " domicile " still exists, " it is not necessary to seek the aid of adjudications bearing upon the much distorted questions of residence and domicile, and the difference between them for certain purposes, such as taxation and the like. A man may reside where he chooses, and although, by a quasi fiction of the law, he may be located in different places for public purposes, such as taxation and the like, yet his home he determines for him- self ; and where that is within the State, his residence — as de- scribed for the appropriation of his estate by the legal processes provided by law — is where that is situated." ®^ The question of « Oviedo V. Duffie, 5 Redf. 137. The ton v. Dallas, L. R. 1 Ch. 257; 15 presentation of a petition for probate, Moak, 739. alleging residence of the decedent 51 Per Brady, J., Matter of Zerega, within the county, gives exclusive ju- 58 Hun, 505; 12 N. Y. Supp. 497. In risdiction to try the question of resi- that case, testator described himself in dence, of which the court cannot be de- his will as a resident of Westchester prived by subsequent proceedings in county, voted and paid taxes there, al- the Surrogate's Court of another though he had sold his residence there county on an allegation of residence and passed his winters in New York; in the latter. (Matter of Buckley, 41 — Held, that, for purposes of jurisdie- Hun, 106.) tion of the surrogate, Westchester was 50 Such was the meaning attached to the place for probate, and a motion to " inhabitant " in the statutes revised revoke the probate in New York county in the provisions under consideration, should have been granted. The pro- (Isham V. Gibbons, 1 Bradf. 69.) For ceedings having been remitted to the the general distinction taken by the de- New York surrogate " for further ac- cisions, see Frost v. Brisbin, 19 Wend, tion," additional testimony was taken 11; Douglas v. Mayor, etc., 2 Duer, on the question of testator's residence. 110; Sherwood v. Judd, 3 Bradf. 419; The surrogate held that "though a Petersen v. Chemical Bank, 32 N. Y. man may have two residences, he can 21; Brown v. Lynch, 2 Bradf. 214. have but one domicile (Douglaa v. The authorities upon the question of Mayor, etc., 2 Duer, 110; Bell v. domicile are collated and discussed in Pierce, 51 N. Y. 16), and that Zerega Dupuy V. Wurtz, 53 N. Y. 556. See (the testator) had two residences, one Mr. Moak's note to the case of Hamil- in Westchester and the other in New 105 The Peobate of Wills. § 143a. the testator's residence in one or more counties is, therefore, one of intention, and no arbitrary rule is to be laid down in relation to it; courts must draw their conclusions of intention to fix or to change a domicile from all the circumstances of each case.®^ York county." On a review of the tes- comes to us impressed with the eharac- timony (20 N. Y. Supp. 417), the sur- ter of the particular mood of the man rogate adhered to his previous decision when he uttered it, which, no doubt, and refused to revoke the probate, varied and was affected by the eondi- The written declarations of the testa- tion of his health, by his family cir- tor were principally relied upon by the cumstances and bv other causes. It is petitioner for revocation, as to which colored more or less by the medium the court said : " With written decla- through which it comes, and it depends rations the liability to a distortion of altogether upon the recollection of wit- language is lessened, and if the paper nesaes ; nor do I consider the statement is all in the handwriting of the party in Mr. Moore's bill in chancery, that it is not open to suspicion. But the he was an inhabitant of Florida, stand- value of written declarations as evi- ing alone, as at all decisive. It was deuce depends upon the circumstances necessary for him to make such an al- under which they were made — legation for the purpose of his suit, whether care was taken to have the and he might very well have made it paper read to the party, if only the without fully considering its import signature is in his handwriting, and or its extent or its consequences in whether his mind grasped the legal im- other relations. Coupled, however, port of the words used, if the language with his conduct, it is evidence which in the paper was not his own." may disclose another motive for a In Isham v. Gibbons (1 Bradf. 91), wish, on his part, to acquire a, resi- Bradford, S., said: "Written declara- dence in Florida, at or after the time tions, even of the most solemn charac- when he settled near Jacksonville, ter, are but facts to enable the court * • » But the whole matter is a to discover the intention of the party, question of intention, and no arbitrary It is in this light alone that they are rule is to be laid down in relation to it. to be received and weighed. At best. See Mackenzie v. Mackenzie, 3 Misc. the animus of the party is only to be 200; Matter of Jones, 19 id. 80; Mat- inferred from them. In this respect ter of Brant, 30 id. 14. they are talcen like any other facts. B2 Dupuy v. Wurtz, 53 N. Y. 562, and Declarations of any kind are not con- cases supra. In Matter of Gould (30 trolling, but may be, and frequently St. Rep. 949; 9 N. Y. Supp. 603), de- are, overcome by other and more reli- ceased, who resided in Wayne county able indications of the true intention." until 1885, determined to change his So, in the Attorney-General v. Kent, residence to Monroe county and re- ( 1 Hurlstone & C. 12 ) , though the moved the principal part of his effects judges held that jurisdiction was in to that county and made an affidavit the English courts, they stated that that he was a resident of that county, the declaration in the will that the de- Held, that the surrogate of Monroe cedent was " residing in the county of county properly assumed jurisdiction Surrey " was entitled to very little of the probate of his will. A Surro- eonsideration. And in Gilman v. Gil- gate's Court has jurisdiction to pro- man (52 Me. 165) it was held, though bate the will of a decedent who died the testator described himself as " of within the surrogate's county, after the city and State of New York," that having been judicially declared to be the recital could not weigh against insane at his former residence in an- facts which led it to the conclusion other county, and whose residence was that his domicile continued at Water- thereafter changed to the surrogate's ville, in the State of Maine. county by the act of his committee. In Hegeman v. Fox (31 Barb. 478), (Hill v. Horton, 4 Dem. 88.) See Von referring to both oral and written dec- Hoffman v. Ward, 4 Eedf. 244, as to larations, the court (Judge Emott how far a parent may change the domi- writing the opinion) says: "To the cile of an infant. Compare Seiter v. evidence of what he said at various Straub, 1 Dem. 264. times I attach little importance. It §§ 144, 145. The Peobate of Wills. 106 § 144. Nonresident's property in county. — If the testator was domiciled in any other State, the nature and locus of his property are to be considered. His estate may consist of (a) only personal effects within, or which, after his death, come into the State, or (b) only real property, in the State, described in the fourth clause of section 2476, or (c) both real and personal property. We will consider each of these hypotheses. (a) In this case, the place of the testator's death is to be noted. If he died within the State, the application can be made only in the county where he died; while, if he died without the State, it can be made only in the county where the property was left or has come.^^ (&) Here, the application for probate must be. mad© in the county where the real property is situated, independently of the place of the testator's death. (c) In such a ease, by the terms of the statute, if a petition for probate, or for letters of administration, has been filed under either the second or third clauses of the section, no surrogate can gain jurisdiction under the fourth. But there seems to be a casus omissus in the statute, in failing to prohibit the invoking of jurisdiction based upon the locality of personal property of a non- resident, after a petition has been filed under the fourth clause of the statute. § 145. Nature and locality of personal property. — The general " definition of " personal property " makes the term include money, goods, and chattels, things in action, and eyidences of debt.^* As used in respect to surrogate's proceedings, the expression " per- sonal property " signifies every kind of property which survives a decedent, other than real property as defined in reference to the same subject, and includes a right of action conferred by special statutory provision upon an executor or administrator.^ The question, what are " assets," will be considered in a subse- quent chapter. That term having been expxmged from the statu- tory provision now under discussion, does not call for further notice here. 53 We assume here that there is only eludes every claim or demand upon one such county. The case where which a money judgment could be re- property is left in, or comes into, two covered in an action. (Co. Civ. Proc, or more counties is subsequently dia- § 2514, subd. 3.) See Despard v. cussed. Churchill, 53 N. Y. 192. 64 Co. Civ. Proc, § 3343, subd. 7. 55 Co. Civ. Proc, § 2514, subd. 13. Subd. 7 of § 3343, defining the term The corresponding definitions of real " personal property " was repealed by property are given in the next para- L. 1892, c. 677, by which another defi- graph, nition was given (§ 4) . A " debt " in- 107 The Peobate of Wills. § 146. In respect to the subject of locality, tangible personal property presents no difficulties. Where personal property left by a de- cedent consists of a debt owing by a resident of this State, its locality is established by the Code which declares that " for the purpose of conferring jurisdiction upon a Surrogate's Court, a debt, owing to a decedent by a resident of the State, is regarded as personal property situated within the county where the debtor or either of two or more joint debtors reside; and a debt, owing to him by a domestic corporation, is regarded as personal prop- erty situated within the county where the principal office of the corporation is situated. But the foregoing pro"vision does not apply to a debt evidenced by a bond, promissory note, or other instrument for the payment of money only, in terms negotiable, or payable to the bearer or holder. Such a debt, whether the debtor is a resident or a nonresident of the State, or a foreign or a domestic government. State, county, public officer, aseociatiooi, or corporation, is, for the purpose of so conferring jurisdiction, re- garded as personal property, at the place where the bond, note, or other instrument is, either within or without the State." ^^ § 146. nature and locality of real property. — Real property is, in general, coextensive in meaning with lands, tenements, and hereditaments.^'' As used in respect to surrogates' proceedings, the expression 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 by law declared to be assets. °^ As regards the locality of real property, it was held under the former statute, ^^ giving the surrogate jurisdiction where " any real estate devised by the testator " is situated in his county, that jurisdiction depended not upon the decedent's ownership of such property, but upon his actual or apparent devise thereof.®" But such a question cannot arise under the present Ck>de, which, in this in- stance, adopts the language of the Revised Statutes.^^ The provision giving the surrogate jurisdiction to grant pro- bate of the Mill of a nonresident by reason of real property being 56 Co. Civ. Proc, § 2478; substan- pealed subd. 6 of Co. Civ. Proc, tially enacting what was formerly the § 3343. rule. See Kohler v. Knapp, a Bradf. 58 Co. Civ. Proc, § 2514, subd. 13. 241 ; Ferris v. Van Veehten, 73 N. Y. 59 L. 1837, c. 460, § 1, subd. 5. 113; Beers v. Shannon, id. 292; Mat- eoVreeland v. McClelland, 1 Bradf. ter of Hopper, 5 Dem. 242. 393. 57 L. 1892. c. 677, § 3, which re- 612 E. S. 220, § 1, subd. 1. §§ 147, 148. The Peobate of Wills. 108 situated in his county, is important, chiefly with reference to giving effect to the, devises and powers of sale relating to real property within the State, contained in a will, in a case where, so far as personal property is concerned, there is no jurisdiction to take probate here;^^ and also in that class of cases where, by reason of there being insufficient assets, creditors must resort to the real property for the satisfaction of debts.®* It removes doubts and obscurities which existed under the original enact- ments of which it is a revision, but appears, as has been already intimated, still to leave open a question which may give rise to a conflict of jurisdiction. § 147. Concurrent jurisdiction of two or more surrogates. — It is manifest that where jurisdiction depends on the existence of prop- erty in a county of the State, two or more surrogates might have equal claim to jurisdiction. The Code provides for such a con- tingency, by establishing the rule that where personal property of a nonresident testator dying without the State, is within, or after his death comes into, two or more counties, under such circum- stances as to confer jurisdiction to take the probate ; or real prop- erty of any nonresident testator is situated in two or more counties, under the like circumstances, 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 thereupon; but where a petition for probate, or for letters of administration, has been duly filed in either of the courts so possessing concurrent jurisdiction, the jurisdiction of thiat court excludes that of the other. "^^ AETICLE SECOND. APPLICATION POE PEOBATE, HOW AND BY WHOM MADE. § 148. In general. — The person who, it might be supposed, would naturally take steps to have .a will proved, is the executor, if any, named therein. It is competent, however, for either " a person designated in a will as executor, devisee, or legatee, or any other person interested in the estate, or a creditor of the decedent, or any party to an action brought or about to be brought, and interested in the subject thereof, in which action the decedent, 62 See Young v. Brush, 28 N. Y. 667 ; 63 See Hollister v. Hollister, 10 How. Thorn v. Sheil, 15 Abb. Pr. (N. S.) 81. Pr. 532. 64 Co. Civ. Proc, § 2477. 109 The Peobate of Wills. § 149. if living, would be a proper party," ^ to present to the Surro- gate's Court having jurisdiction a petition for the probata' of the vidll. Under the definition,®^ given in the Code, of a " person in- terested," this enumeration includes, besides the persons specifi- cally designated, a husband or wife, and those coming within the description of heirs and next of kin. Doubtless, under the language of the present, a^ under that of the former statute, the rule obtains, that any interest, or the bare possibility of interest, is sufiicient to entitle one to be a party to the proceeding. ^^ A person interested may make the application by a duly authorized agent; it is not necessary that he should apply personally.®^ Formerly, where a married woman propounded a will, her hus- band was usually required to join with her; but now, married women are capable of receiving letters as though they were single women,®* and it is expressly declared that a married woman prosecutes or defends a special proceeding as if she were single.™ The term " creditor " includes every person having a claim or demand against the testator, upon which a judgment for, or a direction for the payment of, money could be recovered in an action, and also any person having a claim for expense of ad- ministration or for funeral expenses.^'' § 149. Presence of the will. — It is not only the right, but the duty of one who finds a will which he is interested to prove, to propound it for probate.''^ The proponent need not, even where the will is not lost or destroyed,''^ have the document in his pos- session, or produce it as a condition of obtaining a citation. Its production can be compelled, at the proper time, by a subpoena duces tecum.''* If the instrument is inaccessible, that is, in an- other State or country under such circumstances that it cannot be obtained here, it may nevertheless be proved.''^ If lost or de- es Co. Civ. Proc, § 2614, as amended T2 Matter of Griswold, 15 Abb. Pr. 1897. No act of an executor, oflfering 299. And see Thorn v. Sheil, 15 Abb. a will for probate, can deprive persons Pr. (N. S.) 81. interested in the estate of the right to 73 See Co. Civ. Proc, § 2621. have it admitted. (Paxton v. Pattfer- 74 Co. Civ. Proc, § 2481, subd. 3. son, 26 Abb. N. C. 389 ; s. c, sui nom. 75 Matter of Delaplaine, 5 Dem. 398 ; Paxton V. Brogan, 35 St. Itep. 479; 12 19 Abb. N. C. 36. And this is so, even N. Y. Supp. 563.) where there were no subscribing wit- 66 Co. Civ. Proc, § 2514, subd. 11. nesses, if the will has been executed in 67 Matter of Greeley, 15 Abb. (N. S.) conformity with the laws of decedent's 393; Boynton v. Laddy, 20 St, Eep. residence. (lb.) As the statute (L. 148. See other eases, ante, § 98. 1837, c 460, § 1 ) stood before the pres- 68Eussell V. Hartt, 87 N. Y. 19. ent Code, Surrogates' Courts were au- 69 L. 1867, c. 782, § 2. thorized to take proof of the last wills 70 Co. Civ. Proc, § 450. of all deceased persons, where the tes- 71 Co. Civ. Proc, § 2514, subd. 3, as tator, being a, noninhabitant, died out amended 1900 (L. 1900, c. 120). of the State, leaving assets in the §§150,151. The Peobate OF Wills. 110 stroved, it may be proved either by action, or by a special pro- ceeding in the Surrogate's Court. If it has been already proved before a foreign tribunal, it may be recorded here upon a duly exemplified copy of the will, etc. § 150. Foreign wills. — The statute makes no distinction, in respect to the right to apply for probate, between a domestic and a foreign will. In the case of the latter, the application is usually made by the foreign representative, in person or by his attorney in fact. The right of a foreign consul to intervene in any such proceeding on behalf of a member of his nation not within the country, has been generally recognized. The jurisdictional facts existing, the court here is not bound to postpone the probate of a foreign will, until the instrument has been submitted to the proper judicial tribunal of the decedent's domicile.^* § 151. Application by written petition. — The formalities of the application for proof of a will, so far as they are prescribed by statute, are very simple. The application is by petition. What- ever may have been the former practice," the statute now recog- nizes the general rule,''® that the petition for probate must be in writing and duly verified.™ The requisite form of the allegations and mode of verification are the same as in case of a verified pleading in a civil action.** The affidavit of verification may be taken before any officer authorized to administer oaths and affi- davits generally.*' Where the property is small, and the parties are few, it has been not unusual for them to go before the sur- rogate together, produce the will, and state the facts, in answer to inquiries addressed to them; and in such case, if no objection appeared, the surrogate would proceed at once to take proof of the will, the citation sometimes being dispensed with, on the ground of a personal appearance of all parties in interest.*^ county, etc., and provision was made by the commissioners as correct. Held, for the taking of testimony by com- that the surrogate had jurisdiction to mlssioners in foreign countries. Orig- admit the will to probate without pro- inal probate was, therefore, granted on duction of the original. (Russell v. wills, the originals of which were not Hartt, 87 N. Y. 19.) produced. Thus, a will disposing of 76 Booth v. Timoney, 3 Dem. 416. real and personal property in this 11 See Smith v. Kemington, 42 Barb. State was executed in Scotland, accord- 75 ; Wright v. Fleming, 19 Hun, 370. ing to the laws of that country, and 78 gee Foster v. Wilber, 1 Paige, 537. also according to the laws of this 79 Co. Civ. Proc, § 2614. State. The evidence of thfe subscribing 80 See Co. Civ. Proc, § § 523-526 and witnesses was taken in Scotland, by 2534. commissioners appointed by the surro- 81 Co. Civ. Proc, § 842. gate here, and a copy of the will an- 82 See Everts v. Everts, 62 Barb. 577 ; nexed to the commission was certified Bailey v. Stewart, 2 Redf. 212. Ill The Probate of Wills. § 152. Under the present Code it is believed that the provision for a verified written petition for probate is compulsory; for although its language is that the proponent " may present " such a peti- tion, the permissive form of the expression appears to be, owing to the main purpose of the section, to confer upon the persons specified the right to apply for probate; and no other method of invoking the jurisdiction of the court is prescribed. And such, indeed, has been the general and orderly course of practice. On the other hand, if the petition shows that there are no persons entitled, under the statiite, to be cited, or if the parties interested have waived issue and service,*^ a prayer for a citation and the citation itself are needless formalities; so that the ruling above cited may be expected to be held still applicable, notwithstanding the mandatory language of the Code, viz., that, " upon the pre- sentation of such a petition, the surrogate must issue a citation accordingly." § 152. Contents of the petition. — The requirements of the Code, as to the contents of the petition, are briefly that it describe the will, set forth the facts upon which the jurisdiction of the court to grant probate thereof depends, and pray that the will may be proved, and that the persons specified in the statute as entitled to citation may be cited to attend the probate thereof.^* Under the head of a description of the will, the petition should show whether it is oral or nuncupative ; and whether it relates to real or personal property, or both. It is usual, if the will relates, to real estate, though this is not essential, to state facts showing the competency of the testator to hold and convey land ■ — ■ as that he was of full age, also that he was a citizen of the United States, etc. As to the jurisdictional facts, the allegations will naturally vary for different cases. Where the will is executed " as prescribed by the laws of the State," ^^ and the testator " was at the time of his death a resident of " the surrogate's county, an averment of such residence, and of the time and place of his death, is all that is required. In other cases, the existence and locality of personal or real property must be shown; and a statement of the place of execution of the will may be material.*® The petition should also set forth the name and residence of every person who is entitled to be cited on the probate, e. g., 83 See § 84, ante. Prior to the service of a citation. (Matter of Greg- amendment of § 2528 (L. 1896, c. 570) ory, 13 Misc. 363; 35 N. Y. Supp. 105.) it was held by the surrogate of New 84 Co. Civ. Proc, § 2614. York county that a waiver could not 85 See Co. Civ. Proc, § 2611. be accepted in lieu of the issue and 8G See Co. Civ. Proc, § 2611. §§ 153, 154. The Peobate of Wills. 112 each of the heirs, or each of the neixt of kin ^'^ (including adopted children),** or both, according to whether the will is sought to be proved as one of real or personal property, or both, and the hus- band or the wife of the testator, imless the name or part of the name, or residence of one or more of them cannot, after diligent inquiry, be ascertained by the petitioner, in which case that fact must be alleged.*® If any of those persons are infants, that fact, and the name, age, and residence of each infant should be stated. The petition closes with a prayer for probate and for a citation, as prescribed in the statute. It is customary for surrogates to have printed forms of petitions, and it is suggested that these be used by the practitioner whenever available. It is obvious, that in order to make a probate decree conclusive, great care is to be observed that all persons who may possibly have an interest should be cited.®" § 153. Will in foreign language. — Where the will is wiitten in a foreign language, it may be offered for probate in that language, with or without a translation thereof annexed; but, before decree, it is the duty of the court to translate it into English, to ascer- tain its meaning, and to see that the proper parties have been cited. The translation is to be treated as a pajt of the decree admitting the will to probate, and is unassailable collaterally like the rest of the decree.®^ § 154. Duplicate and mutual wills. — Where a will is executed in duplicate, although each duplicate may be said to be a part of the will, in the sense that it is not a separate vsdll, yet from the nature of the ease, each duplicate is a completei will in itself, since each is an original. On the probate of a will executed in duplicate, the petition should describe the will as so executed, and the part kept by the testator must be produced or accounted for, as in case it cannot be found, a presumption arises that the testator has de- stroyed it with the intention of revoking his will.®^ A conjoint or 87 The question as to who are the cited to appear at the probate of his heirs-at-law and next of kin of a de- will and codicil, the latter of which, ceased person is to be determined by giving a life estate only to testator's the Statute of Descents and the Stat- children, was rejected. Held, that the ute of Distributions. See §§ 92, 93, interests of the grandchild were not ante; and see Co. Civ. Proc, § 2514, concluded by the decision. subd. 12. 91 Caulfield v. Sullivan, 85 N. Y. 153. 88 Matter of Gregory, 13 Misc. 363 ; 92 Williams on Exrs. 158. Either of 35 N. Y. Supp. 105. two duplicate wills may be proved 89 Co. Civ. Proc, §§ 2518, 2523. without the other. (Crossman v. Cross- 90 In Matter of Dates (35 St. Rep. man, 95 N. Y. 145. ) Upon a petition 338 ; 12 N. Y. Supp. 205 ) , an infant for probate of a will executed in dupli- grandchild of the testator was not cate, one of the two originals being 113 The Probate of Wills. §164a. mutual will is valid, and may be proved on the death, of either party. ^^ § 154a. Supplemental petition; intervention of parties. — In case the name of any person entitled to be cited has been omitted in the original petition, a supplemental petition may be filed at any time on discovering the omission, and a new citation issued to bring him into court; the paarties already cited need not agaia be served with the citation.®* The statute provides that " any per- son, although not cited, who is named as a devisee or legatee, in the will propounded, or as executor, trustee, devise©, or legatee, in any other paper, purporting to be a will of the decedent, or who is otherwise interested in sustaining or defeating the will, may appear, and, at his election, support or oppose the applica- tion. A person so appearing becomes a party to the special pro- ceeding." But this provision is declared not to affect the right or interest of such person, unless he becomes a party.®^ In order, therefore, to conclude a third party, it is well, though not neces- sary, to enter a formal order, making him a party to the pending proceeding. The trial of issues raised by parties opposing the shown to have been destroyed by the maker, animo revocandi, and there be- ing no proof that the other was in her possession at any time after its execu- tion, though it did not appear but that it was still intact; held, that a decree might be entered denying the applica- tion. (Asinari v. Bangs, 3 Dem. 385.) And see Biggs v. Angus, id. 93. The nonpresentment of both duplicates is not a ground revoking the probate of the will, where both are subsequently produced. At most the probate was irregular. (Matter of Grossman, 3 Civ. Proc. Rep. 65, affd., 30 Hun, 385; 95 N. Y. 145.) 93 Matter of Raupp, 10 Misc. 300; 31 N. Y. Supp. 680. A mutual will executed by husband and wife, devis- ing reciprocally to each other, is valid. Such an instrument operates as the separate will of whichsoever dies first. (Matter of Diez, 50 N. Y. 88; Ex p. Day, 1 Bradf. 476, and cases cited.) And see Em p. McCormick, 2 Bradf. 169. As to effect of wills made by father and son with reference to each other, and of a release by the father to the executors of the son, in a peculiar case, see Wood v. Vandenburgh, 6 Paige, 277. In order to make a mutual will, it must be made under an agree- ment that the survivor shall be enti- 8 tied to the other's property. (Drisch- ler v. Van Den Henden, 49 Super. Ct. [J. & S.] 508.) Two parties may agree between themselves to execute mutual and reciprocal wills, which, though remaining revocable upon no- tice being given by either of an in- tention to revoke, become, upon the death of one, fixed obligations, of which equity will assume the enforce- ment, if attempted to be impaired by subsequent testamentary provisions on the part of the survivor. (Edson v. Parsons, 155 N. Y. 555 ; 50 N. E. 265 ; Everdell v. Hill, 27 Misc. 285; 58 N. Y. Supp. 447.) See Martin v. Hillen, 142 N. Y. 140; 58 St. Rep. 617; Her- riek v. Snyder, 27 Misc. 462 ; 59 N. Y. Supp. 229. 9* See ante, § 107. Merritt v. Jack- son, 2 Dem. 214; Matter of Crumb, 6 id. 478; Matter of Ellis, 22 St. Rep. 77 ; Matter of Odell, 1 Misc. 390. 95 Co. Civ. Proc, § 2617. See Laf- ferty v. Lafferty, 5 Redf. 326. To in- tervene in probate proceedings, as a beneficiary under a former will, such will must either have been in existence when decedent died, or must have been lost or destroyed without decedent's procurement. (Hamersley v. Lockman, 2 Dem. 524.) §§ 155-157. The Probate of Wills. 114 probate of a will, can only be had in an independent proceeding. It cannot be had, for instance, upon an application by the tem- porary administrator of decedent's estate for leave to discharge certain items of alleged indebtedness.®^ § 155. Consolidating proceedings. — Where two instruments are propounded by different parties, the several applications for pro- bate will be consolidated and tried together as one proceeding.^'' So, where an alleged codicil is produced by persons intervening for their interest, but who were not cited.^^ § 156. Withdrawal of petition for probate. — When once a will has been produced in court — and the parties cited — the proponents may not withdraw it from the files, nor by such means procure its probate.^® Although no act of an executor propounding a will for probate can deprive a person interested under it of the right to have the will admitted, on due proof,^ it does not follow that in a proper case the court will not grant leave to withdraw a peti- tion for probate, on objections filed.^ 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 wotild be produced if all the parties cited should formally admit that the will was not legally executed, or that the testator was incompetent. But so long as any person cited is before the surrogate in support of the will, he has no right, upon the motion of any other party, arbitrarily to arrest or dismiss the proceeding.® It follows that after the petition for the probate of a will is filed with the sur- rogate, and the proper parties cited can become actors, any of them can contest and produce witnesses in opposition to probate, and any can oifer witnesses in support of the will and croas-ex- amine those called in opposition.* ARTICLE THIED. THE CITATION AND ITS SEEVIOE. § 157. Classes of persons to be cited. — We have already, in the chapter on Parties, treated generally of parties to special pro- ceedings in Surrogates' Courts, but it will be proper to refer, in 96 Mason v. Williams, 3 Dem. 285. l Paxton v. Patterson, 26 Abb. N. C. 87 Van Wert v. Benedict, 1 Bradf. 389 ; 12 N. Y. Supp. 562. 114. ZHeermans v. Hill, 2 Hun, 409; 4 98 Carle v. Underbill, 3 Bradf. 101. Sup. Ct. (T. & C.) 602. 99Hoyt V. Jackson, 2 Dem. 443; ^Matter of Lasak, 131 N. Y. 624; 43 Raven v. Norton, id. 110. St. Rep. 101. * Matter of Lasak, supra. 115 The Probate of Wills. §§ 158, 159. this place, to the rules relating especially to a proceeding for probate." The relatives of a testator who are entitled to be cited to attend the probate of his will are : " 1. If the will relates ex- clusively to real property, the husband, or wife, if any, and aU the heirs of the testator. 2. If the will relates exclusively to per- sonal property, the husband or wife, if any, and all the next of kin of the testator. 3. If the will relates 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." ® The first subdivision looks to the protection of the husband's possible estate by the curtesy.'' A widow's dower cannot, of course, be impaired by her husband's will. § 158. Public administrator and attorney-general. — Where the surrogate is unable to ascertain, to his satisfaction, whether the decedent left surviving him any person who would be entitled to the property affected by the will, if the decedent had died in- testate, the citation must be directed, where the will relates to real property, to the attorney-general ; where it relates to personal property, to the public administrator, who would have been entitled to administration if the decedent had died intestate.* § 159. Service of citation. — The rule governing the manner and proof of its service and the general requisites, as to form and con- tents of a citation, are detailed on a previous page.® In addition to the requirements common to all citations, viz., that the names of all the persons to be cited, so far as they can be ascertained, must be contained therein, etc., the Code provides that the citation to attend the probate of a will must set forth the name of the decedent, and that of the person by whom the will is propounded; and must state whether the will relates, or purports to relate, ex- clusively to real property, or personal property, or to both; and where the will propounded was nuncupative, the fact must be 5 Upon an application for probate of terests of those persons are now pro- memoranda of names of legatees re- tected by section 2617, as amended ferred to in a will previously probated, 1894, requiring notice of the hearing of the same parties should be cited as if objections to probate to be served on the question had risen at the time of them. See § 162, post. See also L. the probate of the will. (Dyer v. Err- 1894, c. 731, and §§ 92, 93, ante. ing, 2 Dem. 160. ) 7 See Hatfield v. Sneden, 54 N. Y. 6 Co. Civ. Proc, § 2615, as amended 280. 1894, substantially restoring the pro- 8 Co. Civ. Proc, § 2616, adopting the visions of the statute as it existed prior rule laid down in Gombault v. Public to L. 1892, c. 627, which required a Administrator, 4 Bradf. 226. citation to all persons interested in the 9 See ante, § 73 et seq. will, as legatees, devisees, etc. The in- § 160. The Probate of Wills. 116 stated in the citation.^'* Personal service of the citation is made by delivering a copy. It is not necessary to exhibit the original.^' On or before the return day, the original, with proof of due service, should be left in the surrogate's office. ' It is no objection that the service was made by an executor or legatee named in the will.-'^ If any of the parties cited are infants, or otherwise in- capable, the surrogate will appoint a guardian ad litem for the protection of their interests. This is necessary, whether there is a contest over the will or not. The steps necessary for such appointment are stated in the chapter on Parties. TITLE FOUETH. PEOOF OE Wilis. AETICLE FIRST. UNCONTESTED AlifD CONTESTED PROBATE. § 160. Uncontested probate. — The court having acquired juris- diction of the parties, the further steps to be taken toward the proof of the will are governed by the fact whether or not the probate is contested. In case no caveat has been filed against the probate, and there is no demand on the part of any of the parties in interest for an oral examination of the subscribing witnesses, the practice, in an ordinary case of a written will, is to take the affidavit of each subscribing witness, sworn to before the surro- gate or one of his clerks, to the effect that the witness was ac- quainted with the decedent in his lifetime; that he was present as a witness and the decedent subscribed the paper propounded and now shown witness, dated, etc., purporting to be the last will and testament of, etc.; that, at the time of making such subscription, the decedent declared the said instrument to be his last will and testament, and requested the deponent to sign his name as a wit- ness thereto, which deponent thereupon did; that the decedent was a citizen of the United States, of full age, of sound mind and memory, in all respects donipetent to devise real estate, and not 10 Co. Civ. Proc, § 2616. See, as to for infant parties. Id., § 2530, § 108, proof of service, Co. Civ. Proc, § 2532, ante. § 76, ante; as to appearance as a H The surtogate's rules in New York substitute for service. Id., § 2528, county do not require a copy of the § 84, ante; as to a supplemental cita- petition to be served with the citation tion. Id., § 2481, subd. 2, § 107, ante; (Rule III). See ante, § 76, note, as to appointment of special guardian 12 Co. Civ. Proc, § 2520; Wetmore v. Parker, 52 N. Y. 450. 117 The Probate of Wills. § 161. under restraint; and that the deponent saw the other witnesses (naming them) sign their names as witnesses, in the presence, and at the request, of the decedent. The affidavits being duly verified and filed, together with the will, letters forthwith issue to the executors named, or, in case of their renunciation, to the persons next entitled. An oral examination of the witnesses is had only in case it is required by some party in interest. How- ever taken, " the proofs must be reduced to writing." ^^ There would seem to be no legal objection to such deposition being sworn to before one of the clerks of the office authorized to ad- minister oaths, as is usually done, although the language of the statute is explicit, that the surrogate must " cause the witnesses to be examined before him/' ^* The acting upon the proofs taken whether by affidavit or otherwise, — that is, the admission of the will to probate, — is of course a judicial function which cannot be delegated. ^° As regards the form of the examination, the lan- guage, that two, at least, of the witnesses must be " produced and examined, if so many are within the State, and competent and able to testify" would seem to imply that the examination should be oral in all cases. A party in interest desiring an oral examina- tion of the subscribing witness, may demand it without filing a formal answer to the petition for probate. § 161. Contested probate. — If, upon the return day of the cita- tion, any person desires to contest the validity of the will, he must present his grounds of objection in writing. Ho particular form is prescribed by statute for the presentation of such objections, and the courts have permitted the most general and indefinite allegations to be presented as a basis of contest, resulting too frequently in a confused and disorderly trial, with accumulations of irrelevant and redundant testimony. It is, in every case, the better practice for the contestant to formulate his grounds of ob- jection on the principles of pleading in civil actions. If, in the course of the trial, it should appear that he has not covered every ground of objection, he may have leave to amend his answer in that regard. There is no doubt, we think, that the surrogate may require definiteness and certainty, in the allegations filed by the contestant, so as to settle the precise issues to be presented for 13 Co. Civ. Proc, § 2618. power to rule upon the admissibility 14 Co. Civ. Proc., § 2618. Under L. of evidence. (Matter of Allemann, 1 1887, c. 701, the surrogate of New Connoly, 441; 22 St. Rep. 885.) York county may appoint an assistant 15 Roderigas v. East Eiv. Sav. Inst, to take testimony in the case of a pro- 76 N. Y. 316. bate contest, and such assistant has ■§§ 162, 163. The Probate of Wills. 118 trial. He is, indeed, expressly authorized at any time, at the com- mencement or in the course of a proceeding, to " require a party to file a written petition or answer containing a plain and concise statement of the facts constituting his claim, objection or defense, and a demand of the decree, order or other relief, to which he supposes himseU to be entitled," ^* and there can be no doubt that he has a" discretion to control the introduction of evidence in con- formity thereto. § 162. Notice of hearing of objections. — In order that the rights of persons named in the will, upon whom a copy of the citation is not required to be served, may be protected, the statute pro- vides that " in case the will propounded for probate is opposed, due and timely notice of the hearing of the objections to the will shall be given, in such manner as the surrogate shall direct, to all persons in being, who would take any interest in any property under the provisions of the will, and to the executor or executors, trustee or trustees named therein, if any, who have not appeared in the proceeding." ^^ § 163. Hearing and determination of allegations against probate. — liTot every person who fancies himself possessed of an interest in the estate, can be heard to oppose the probate of a will by which such estate is passed; nor can a proponent, by naming a person in the petition, give that person a status as contestant, where such relation does not exist.-'* Thus, persons whose sole rights are those of legatees and devisees under a will properly rejected on probate have no standing to object to the probate of a prior will.-'® The question of the contestant's interest may, and ought to be, determined before testimony is taken as to the factum of the will.^ A statement of the various questions which are likely to confront the surrogate, and the principles upon which they should be de- termined, are treated of in other parts of this work, but in this wCo. Civ. Proc, § 2533. It is not fied. (lb.) This clause must, of necessary that copies be served upon course, be taken to refer to a decree the proponents or their attorneys. The adverse to the interest of such person, filing operates as a caveat. Where a See Cook v. -White, 43 App. Div. 388; contestant files his objections after 60 N. Y. Supp. 153. witnesses are examined, their exami- 18 Matter of Hamilton, 76 Hun, 200; nation is not thereby invalidated, nor 27 N. Y. Supp. 813. can the proponent be compelled to re- 19 Matter of Gaines, 84 Hun, 520; call them. (Downey v. Do-wney, 16 32 N. Y. Supp. 398. But a judgment Hun, 482.) creditor of a devisee under a will may 17 Co. Civ. Proc, § 2617, as amended contest a codicil which supersedes the 1894. The decree In the proceeding will. (Matter of Coryell, 4 App. Div. does not affect the right or interest of 429; 39 N. Y. Supp. 508.) any such person unless he is so noti- 20 Matter of Hamilton, supra. 119 The Peobate of Wills. § 164. connection, we should point out the statutory requirement, that " the surrogate must inquire particularly into all ihe facts and circumstances J and must be satisfied of the genuineness of the will and the validity of its execution," before admitting it to probate.^^ This duty is to be discharged, irrespectively of the form or char- acter of the objections filed; so that, in view of the nature of the proceeding and the peculiar functions of the court, strict rules as to forms of pleading and relevancy of evidence are inapplicable. So far at least as regards matters relating to the probate of testa- ments and the administration of the estates of deceased persons, the surrogate proceeds in conformity with prescription and estab- lished usage, except as modified from time to time by statutory regulations, and in a case where the statute prescribes no par- ticular method of proceeding, he follows the practice of the Eng- lish ecclesiastical courts in testamentary matters.^^ § 164. Jury trials in probate oases. — The Code provides for the trial of issues of fact by a jury in probate cases. First. Where on appeal from a Surrogate's Court, its decree, admitting a will to probate or revoking the probate, is reversed or modified upon a question of fact, the appellate court must direct a trial by jury of the material questions of fact arising upon the issues between the parties.^^ The order must state the questions of fact to be tried, and must direct the trial to take place either at a Trial Term 21 Co. Civ. Proc, § 2622. See Matter tine, 3 St. Kep. 154; Matter of Hannah, of Boardman, 20 N. Y. Supp. 60. In 11 id. 807. Where a surrogate's decree Matter of Pollett (N. Y. Law J., April refusing probate is reversed, and the 27, 1891) no allegations were filed issues tried by jury, the trial court against the will, but the circumstances can only certify the verdict to the sur- attending its execution were " such as rogate, but cannot order a judgment make it necessary for the surrogate, of for the proponent awarding him costs, his own motion, to investigate the (Matter of Campbell, 48 Hun, 417.) A facts." (Ransom, S.) See Matter of verdict of a jury upon a question of Way, 6 Misc. 484; 27 N. Y. Supp. 235. fact is to be certified by the clerk of Where the surrogate is satisfied that the court in which the trial took place, testator had not mental capacity to and sent directly to the Surrogate's make a will, and that the instrument Court. (Matter of Hatten, 22 Abb. offered for probate was obtained by N. C. 66.) After a verdict by a jury, fraud and undue influence, he has the a motion for a new trial should be right and it is his duty to wholly re- made at Special and not, as formerly, fuse probate, even though the contest- at the Appellate Court. (Matter of ant is only an heir-at-law. He is not Clark, 40 Hun, 233. ) But the Special obliged in such case to admit it as a Term has no authority to enter a judg- will of personal property only, because ment upon the verdict. (Matter of the next of kin do not contest. (Matter Laudy, 35 App. Div. 542 ; 55 N. Y. of Bartholick, 141 N. Y. 166; 56 St. Supp. 98.) Entry of final judgment Kep. 684.) should not be stayed because a motion 22 Campbell v. Logan, 2 Bradf . 90 ; for a new trial has been made on the Pew V. Hastings, 1 Barb. Ch. 452. minutes of the judge who presided at 23 Co. Civ. Proc, § 2588, as amended the trial. (Matter of Moss, 24 Civ. by L. 1895, c. 946. Valentine v. Valen- Pro. 438; 34 N. Y. Supp. 798.) § 165. The Pbobate of Wills. 120 of the Supreme Court, or in the County Court of the county of the surrogate. Second. The surrogate of New York county is authorized, in his discretion, to transfer by order any proceeding for the probate of a will, pending before him, to the Supreme Court for trial by a jury.^* The issues must be tried by a jury, and the verdict can be reviewed only by a motion for a new trial upon the minutes of the judge, made within ten days after the verdict is rendered.^^ The surrogate has no jurisdiction to entertain an application for a new trial, after the trial of such issues.^ AETICLE SECOND. MEANS OP PEOOF; COMPETENCY AND QUALIFICATION OF WIT- NESSES. § 165. Subscribing witnesses to be examined. — Before a written will is admitted to probate, two, at least, of the subscribing wit- nesses must be produced and examined, if so many are within the State and competent and able to testify. Probate cannot be granted unless both witnesses are produced or their absence satis- factorily explained.^^ Any party, who contests the probate of a will, may, by a notice filed with the surrogate at any time before the proofs are closed, require the examination of all the sub- scribing witnesses to a written will, or of any other witness, whose testimony the surrogate is satisfied may be material; in which case, all such witnesses, who are within the State, and competent and able to testify, must be so examined.^ It is sufficient if both testify, no matter by which' party called and examined.^ No 24 Co. Civ. Proc, § 2547, as amended ness signed at the request of the testa- 1895. The power of the surrogate to tor, held, that the will was not exe- recall probate proceedings from the euted or proven according to the laws Court of Common Pleas was doubted of this State. (Lockwood v. Lockwood, in Matter of Delaplaine, 6 Dem. 269. 21 St. Eep. 93.) 25 The Constitution of 1869, art. 6, 28 Co. Civ. Proc, § ?618. This sec- § 27, provides that the Legislature tion relates to proceedings upon a re- may confer upon courts of record in turn of citation issued upon the pre- any county having a population ex- sentation of a, will for probate, and ceeding 40,000, the powers and juris- has no application to a proceeding to diction of surrogates, with authority revoke the probate of a will on the to try issues of fact by jury in probate ground that it had been procured by cases. See Const. 1894, art. 6, § 15. fraud. (Hoyt v. Hoyt, 9 St. Rep. 731.) 28 Matter of Patterson, 63 Hun, 529 : It is not necessary to obtain the evi- 44 St. Rep. 842. dence of a subscribing witness who is 2T Graber v. Haaz, 2 Dem. 216. absent from the State to authorize pro- Where a will was admitted in South bate of the will, unless such evidence Carolina and but one witness appeared, is asked for by one of the parties, and there was no proof either as to (Matter of Clark, 75 Hun, 471; 27 N. the absence of the other witnesses or Y. Supp. 681.) as to their handwriting, nor did the 29 Matter of Stewart, 36 St. Rep. 56 ; attestation clause state that any wit- 13 N. Y. Supp. 219. 121 The Probate of Wills. §§ 166, 167. order is necessary to require the production of the subscribing witnesses, but the examination of other persons is an essential prerequisite to probate only when the surrogate is satisfied that their festimony may be material, in which case the witnesses must be brought before him and examined, unless they are absent from the State or incompetent or unable to testify.^** The surrogate has power to compel attendance of a witness other than a sub- scribing witness, whether present at the execution of the will or not. And when produced, it is the duty of the surrogate to ex- amine such witnesses even though the contestants be not present.*^ The refusal of the surrogate to require the proponent to produce such witness in a proper case, is sufficient ground for reversing the probate on appeal.*^ § 166. Dead, disabled, and absent witnesses. — A subscribing or other witness may have died, or be subject to any of several dis- abilities or inabilities, as age, sickness, infirmity, lunacy, absence from the State, etc., and provision is made for such eases. The death, absence from the State, lunacy, or other incompetency of any Avitness, required to be examined upon the probate, or proof that such witness cannot after due diligence be found within the State or elsewhere, must be shown by affidavit or other competent evidence, to the satisfaction of the surrogate, before dispensing with his testimony. ^^ Mere absence from the State of a subscrib- ing witness does not dispense with his examination if demanded. His examination may be taken by commission, in case he cannot after due diligence be found in the State.^* § 167. Subscribing witness in another county. — A subscribing witness who is in anotheir eounty, and who, the surrogate has good reason to believe, cannot attend before him, within a reason- able time, to which the hearing may be adjourned, may be ex- amined before the surrogate of the county in which he is.^^ It will be observed, that where the disabled witness is not in the surrogate's coimty, the statute declares that the surrogate " may make " the order for examination, while the examination of wit- so Matter of McGovem, 5 Dem. 424. of interest, for the demand is a waiver The surrogate will not pass upon the of the objection. (lb.) See Matter of question of the materiality of wit- Hoyt, 67 How. Pr. 57; fl. c, sub nom. nesses in a ease which had been moved Hoyt v. Jackson, 2 Dem. 443. for trial in another court. (lb. ) 32 Matter of Baird, supra. 31 Matter of Baird, 41 Hun, 89; 2 33 Co. Civ. Proc, § 2619, as amended St. Rep. 353. The contestants may 1882. thus demand the examination of a wit- 34 Co. Civ. Proc, § 2620. ness against whose testimony they 35 Co. Civ. Proc, § 2540. might object as incompetent by reason §§ 168, 169. The- Probate of Wills. 122 nesses under section 2539, in case of the probate or revocation of probate of a will, is imperative. In either instance, the residence of the witness is no longer material. It should be further noticed that, under section 2540, the witness to be examined in another county is a subscribing witness; also that the inability of such witness is not that of age, sickness, etc., but that he cannot attend the trial within a reasonable time. § 168. Aged, sick, and infirm witnesses. — Where a subscribing or other witness, whose testimony is required upon the probate, is within the State and able to testify, but disabled from attending, by age, sickness, or infirmity, the statute requires that the sur- rogate, if the witness is within his county, proceed to the place where he is, and there, as in open court, take his examination; or, if he is without the surrogate's county, the court may cause him to be examined before the surrogate of the county where he is.^® In either case, the testimony of the witness, so taken, must be taken in the manner prescribed by law and produced before the surrogate as part of the proofs.^^ § 169. Probate on proof of handwriting, etc. — If all the subscrib- ing witnesses are, or if a subscribing witness whose testimony is required is, dead or incompetent, by reason of lunacy or other- wise, to testify or unable to testify, or if such a subscribing wit- ness is absent from the State, or if such a subscribing witness has forgotten the occurrence, or testifies against 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. ^^ It is even held that where there is proof that a subscribing witness is being induced to ab- sent himself from the trial, by contestant's counsel', his hand- writing may be proved.^® A wiR signed by testator's mark is not proved by the testimony of a single subscribmg witness proving the handwriting of the deceased subscribing Tvitness, but who did 36 Co. Civ. Proc, §§ 2539, 2540. As 139, §§ 9, 12), of which this section is to the details of procedure in such a a partial adoption, it was only in case ease, see § 125, ante. a witness " resided " out of tiie State 37 Co. Civ. Proc, § 2619. See Co. that proof of handwriting was allowed; Civ. Proc, § 25*38. and it was held, that mere absence on 38 Co. Civ. Proc, § 2620. See Mas- a journey did not authorize such proof. ters' Estate, 1 Civ. Proc. Rep. 459; (Stow v. Stow, 1 Redf. 305.) Matter of Hesdra, 17 St. Rep. 612; 39 Matter of Dates, 35 St. Rep. 338; Matter of Oliver, 13 Misc. 466; 34 N. 12 N. Y. Supp, 205. Y. Supp. 706. By the statute (2 R. S. 123 The Pbobate of Wills. § 170. not see the mark made.*" Where testator signed by making his mark, and the subscribing witnesses are dead, the testimony of a third person, who was present, that testator made his mark, is sufficient proof of his handwriting.*^ A case may occur where proof of testator's handwriting can be dispensed with, as where, for example, the signatures of both of the deceased witnesses were proved, and the will, which was in the handwriting of one of them, a lawyer, was found among the testator's private papers.*^ Photographs of a will cannot be received in evidence, though where the genuineness of the instrument is disputed, the court may permit photographic copies to be made.*^ The court may grant leave to a contestant to subject the will to chemical tests for the purpose of disclosing the nature and composition of the ink, and the process or processes to which it has been subjected.** § 170. Interested parties as witnesses. — Previously to the re- moval, by the Code of Procedure, of the disqualification of parties and interested persons to testify as witnesses, it was held that, as the probate of a will was, as to persons interested, lis inter partes, none of the parties were competent witnesses, except so far as the statute authorized their examination touching the circumstances of the execution, delivery, and custody of the instrument.*" The act referred to, while, in general, abrogating the disqualification, contained a restriction as to the case of personal transactions or communications between the proposed witness and la person, at the time of the examination, deceased, etc., where the witness 40 Matter of Porter, 1 Misc. 262 ; 22 was denied, " although,'' said Raasom, N. Y. Supp. 1062. But otherwise S., " I am morally convinced that the where the making of the mark was paper was properly executed." seen. (Matter of Wilson, 76 Hun, 1; 43 Taylor's Will, 10 Abb. Pr. (N. S.) 27 N. Y. Supp. 957.) 300; Cornwell v. Wooley, 1 Abb. Ct. 41 Matter of Smith, 39 St. Rep. 698 ; App. Dec. 441 ; 43 How. Pr. 475 ; Law- 15 N. Y. Supp. 425. It is not necessary rence v. Norton, 45 Barb. 448 ; 30 How. to produce two witnesses, who saw the Pr. 232; Tarrant v. Ware, 25 N. Y. testator make his mark. (Matter of 425, note; Merchant's Estate, 1 Tuck. Kane, 2 Connoly, 249; Matter of Hy- 151; Johnson v. Hicks, 1 Lans. 150. land, 27 N. Y. Supp. 961 ; 58 St. Eep. 44 Matter of Monroe, 1 Connoly, 496 ; 798.) Matter of Boardman, 46 St. Eep. 444. 42 Matter of O'Hara, 2 Law Bull. 83 ; For the rules governing proof of a dis- citing Rider v. Legg, 51 Barb. 260. In puted signature, by declarations of the Matter of Dreyer (N. Y. Law J., Feb. decedent, by experts in handwriting, 27, 1892), the will was made in 1867. and as to the use of photographic Neither of the witnesses were pro- copies of signature, see Taylor's Will duced, the testator's son and daughter supra. Johnson v. Hicks, 1 Lans. 150 (proponents) proved his signature; in Waterman v. Whitney, 11 N. Y. 157 their younger days, they knew the two Jackson v. Betts, 6 Cow. 377 ; Matter witnesses, but were unable to prove the of Williams, 2 Connoly, 579 ; affd., 46 signature of either, and did not know St. Rep. 791; 19 N. Y. Supp. 778. where either could be found. Probate 45 Brush v. Holland, 3 Bradf. 240. §171. The Peobate of Wills. 124 was offered against the personal representative or successors in interest of the deceased.*^ The provision of the present Code is very broad, including among the protected persons not only the executor, administrator, or survivor of a deceased person, but also" a person deriving his title or interest from, through, or under a deceased person, by assignment or otherwise f and has been held to apply to prooeedtags in a Surrogate's Court upon an application for probate.** The husband or wife of a party or person' inter- ested is, in general, no longer incompetent;*® and there can be no question that a person named as executor in a will is competent to testify as to its execution.^* § 171. Qualification of witnesses as to execution of will. — It is expressly provided that " a person is not disqualified or excused from testifying respecting the execution of a will, by a provision therein, whether it is beneficial to him or otherwise." ^^ In view 4G Code of Procedure, § 399. 47 Co. Civ. Proc, § 829. The words of this section, any person deriving Ms title or interest from, through or under a. deceased person, concerning a per- sonal transaction or communication between the witness and the deceased person, should be construed as being equivalent to " any person claiming to derive," etc., and so to include the con- testant of a will, upon the hearing of a special proceeding for its probate. (Cadmus v. Oakley, 3 Dem. 324.) Hence, a person named as legatee is not competent to testify in his own be- half or interest (i. e., in general, in support of the application for pro- bate), concerning a personal transac- tion or communication between himself and the decedent. Section 2544 of the Code, declaring that " a person is not disqualified or excused from testifying respecting the execution of a will by a provision therein, whether it is benefi- cial to him or otherwise," conveys no intimation that a person within its description is not, in like manner as others, subject to the limitations con- tained in the former section. (lb.) As to waiver of objection, see Matter of Beach, 1 Misc. 27. 48 Schoonmaker v. Wolford, 20 Hun, 166 ; Lane v. Lane, 95 N. Y. 494. See Matter of Snelling, 136 N. Y. 515; Matter of Palmateer, 78 Hun, 43; 28 N. Y. Supp. 1062. 40 Co. Civ. Proc, § 828; Talbot v. Talbot, 23 N. Y. 17. But see Johnson V. Cochrane, 91 Hun, 165; affd., 159 ISr. Y. 555. 50 See Co. Civ. Proc, § 2544; Burritt V. Silliman, 13 N. Y. 93; Children's Aid Soc V. Loveridge, 70 N. Y. 387; Eugg V. Rugg, 21 Hun, 383; affd., 83 N. Y. 592 ; Schoonmaker v. Wolford, 20 Hun, 166; Levy's Estate, 1 Tuck. 87; McDonough v. Loughlin, 20 Barb. 238 ; Matter of Folts, 71 Hun, 492 ; 24 N. Y. Supp. 1052. Even where the executor is the proponent of the alleged will, he is, in his capacity of executor, a party without interest, and, therefore, not in- cluded in the prohibition of that sec- tion, because it is impossible that he should be examined " in his own be- half or interest;" besides, contestants, against whom he would testify, are not persons deriving their " title or interest from, through or under " the deceased, by assignment or otherwise. (Whelpley v. Loder, 1 Dem. 368.) A person named executor is not made in- competent by a bequest to him of a sum of money, as a compensation for his services as executor, over and above his commission. (Pruyn v. Brinker- hoflf, 57 Barb. 176.) s. p., Matter of Wilson, 103 N. Y. 374; Matter of Hues- tis, 23 Week. Dig. 224; Matter of Gagan, 47 St. Rep. 444; 21 N. Y. Supp. 350. 51 Co. Civ. Proc, § 2544; replacing 2 R. S. 57, § 6, and id. 65, § 50, in part. See Hopkins v. Lane, 6 Dem. 12, as to right to waive the statute provision. A similar English statute has been 125 The Peobate of Wills. 171. of the context, this proYision might be thought applicable only to probate proceedings, or proceedings to revoke probate; but we think testimony respecting the execution of the will is admissible in any judicial proceeding, though offered by a person having a beneficial interest under the will. Although a subscribing witness to whom " any beneficial devise, legacy, or appointment of any real or personal estate is made " by the will, is competent and compellable to testify, respecting the execution of the will, where it cannot be proved without his testimony, he cannot take under the will, if he testifies. ^^ Where, however, the will cam be proved without the testimony of the mtness — as where such witness is a nonresident of the State, and the testimony of the other sub- scribing witness can be obtained — a legacy to him is not avoided; and this notwithstanding the legatee-witness was examined, though unnecessarily.^* The statute means, therefore, the case of a witness who is necessarily called on to prove the will ; so that, though examined as such on the probate, if his examination was not necessary, and the will was sufficiently proved, under the statute, by the testimony of the other witness, his interest under the will is not affected.^* held to entitle an executor, who is also a legatee, to be a witness to support the will. (Munday v. Slaughter, 2 Cur- teis, 72.) See Children's Aid Soc. v. Loveridge, 70 N. Y. 387; McDonough V. Loughlin, 20 Barb. 238 (disapprov- ing Burritt v. Silliman, 16 id. 198) ; Matter of Levy, 1 Tuck. 87 ; Cadmus v. Oakley, 3 Dem. 324; ante, § 98, n. 28. 52 Morse v. Tilden, 35 Misc. 560; 72 N. Y. Supp. 30. 53 2 R. S. 65, §§ 50, 51 ; Caw v. Robert- son, 5 N. Y. 125; Reeve v. Crosby, 3 Redf. 74; Cornell v. Wooley, 3 Keyes, 378. The discharge or the release of a debt in a will is, by 2 R. S. 84, § 14, a specific legacy to the debtor of the debt released, and when an attesting wit- ness is, by the will, discharged from a debt due the estate, and there is legal necessity of his becoming a witness, it operates as a discharge of the legacy. (Matter of Tonnele, 5 N. Y. Leg. Obs. 254.) A devise of real estate in trust to make partition and for various spe- cial purposes, or a gift of personal es- tate in trust, is not forfeited by the devisee or legatee becoming a siibscrib- ing witness. (Pruyn v. Brinkerhoff, 57 Barb. 176.) An attesting witness hav- ing hired personal property from the executor, is not, therefore, an inter- ested witness. (Seguine v. Seguine, 2 Barb. 385.) Under 2 R. S. 65, § 50, providing that any subscribing witness to a will wherein any beneficial devise is made to such witness, whose testi- mony is necessary to prove the will, shall not be entitled to the legacy, does not apply where the legatees under a will are subscribing witnesses to a codicil, and the will alone is proved, and the codicil does not benefit them, and is not necessary to the proof of the will. (Matter of Johnson's Will, 37 Misc. 334; 75 N. Y. Supp. 489.) 54 Matter of Beck, 26 Misc. 179 ; affd., ,6 App. Div. 211; Matter of Owen, 48 App. Div. 507; 62 N. Y. Supp. 919. A bequest to a necessary witness cannot be validated on the ground that, as the surrogate may believe one of two wit- nesses and not the other, a will may be proved without two witnesses in fact. (Matter of Brown, 31 Hun, 166.) The fact that one of two legatees is disquali- fied to take, by being a necessary wit- ness, does not affect the validity of the legacy to the other. (Matter of Orser, 4 Civ. Proc. Rep. 129.) A necessary subscribing witness to a will is pre- cluded from taking more than his share of the personalty that would have been his had the will not been established. § 172. The Probate of Wills. 126 § 172. Qualification as to other issues. — Where the testimony of the interested witness is directed to some other issue than that of the execution of the will, e. g., to the issue of the testator's mental capacity, it is incompetent. Thus in a probate proceeding, one who is interested in opposition to the probate, e. g.j an heir-at- law,°^ or one who is interested in favor of it, e. g., a legatee,®* is incompetent to testify in his own behalf as to personal trans- actions had with the deceased, on the issue of the testator's mental capacity.*^ But not so where the witness is called by the con- testant, for in such case he testifies against interest.^^ So one claiming to be decedent's widow is incompetent to testify as to her marriage in a proceeding instituted by her tO' revoke letters of administration granted to another.^® The interest which will disqualify a witness must be present, certain and vested, as distinguished from a remote, uncertain or contingent interest. The true test is that the witness will gain or lose by the direct legal operation of the decree, or that the record will be legal evidence for or against him in some other action. Hence the pos- sible right of dower of the wife of a son of a deceased o^vner of real property in such of the property as the son might inherit, if decedent is adjudged intestate, is not such an interest as to dis- qualify her from testifying against the executor, on the probate of decedent's will, to a personal transaction or communication with decedent on the issue of the validity of the will.®* (lb.) The admission of testimony of tors, see subd. 4 of art. 3 of this chap- one of the beneficiaries under a will ter, post. who was present at its execution, proof 88 Matter of Potter, 161 N. Y. 84; 5.5 of which was sufficiently made by the N. E. Kep. 387; Matter of Woodward, subscribing witnesses, — Held imma- 167 N. Y. 28; Matter of Hedges, 57 terial. (Matter of Bernsee, 71 Hun, App. Div. 48; 67 N. Y. Supp. 1028. 27; 24 N. Y. Supp. 504; aflfd., 141 F 59Angevine v. Angevine, 48 Barb. Y. 389.) 417. 55 Schoonmaker v. Wolford, 20 Hun, eo Scherrer v. Kaufman, 1 Dem. 39. 166; Snyder v. Sherman, 23 id. 139 ;' But see Johnson v. i:!ochrane, 91 Hun, affd., 88 N. Y. 656. 165 ; 36 N. Y. Supp. 283 ; affd., 159 56 Matter of Burke, 5 Redf. 369 ; Cad- N. Y. 555. The mother of a bene- mus V. Oakley, 3 Dem. 324; Lane v. ficiary is not an interested person. Lane, 95 N. Y. 494; Matter of Stewart, (Matter of Bedlow, 22 N. Y. Supp. 1 Connoly, 413^ Matter of Bedlow, 22 290.) Testimony of the executor, as N. Y. Supp. 290. Where testimony as to transactions and communications to a transaction between the testator with decedent, and what he did, as and a legatee has been given by the tending to show an implied agree- eontestant, the legatee may testify in ment to pay for his services, is incom- rebuttal, though interested in the event, petent. ( Burnett v. Noble, 5 Redf. 69. ) (Matter of Crane, 68 App. Div. 355 ; 74 See Smith v. Christopher, 6 Sup. Ct. N. Y. Supp. 88.) (T. & C.) 288; and Abbot's Tria,! Evi- 57 As to the competency and weight dence, p. 62 et seq. And so, also, a of the opinions of nonprofessional wit- surety upon an executor's bond is so nesses, as to mental capacity of testa- far interested in the event of the ae- 127 The Pkobate of Wills. §173. § 173. Releasing interest. — It would seem that after a cause be- fore the surrogate has advanced to the examination of witnesses, a party litigant will not be allowed, in general, to renounce con- testation, assig-n his interest, and become a mtness.®^ But the common-law rule which permitted a person having a pecuniary interest in the result of an action to assign or release such in- terest, and thus become competent to testify, is not changed by any statute, it would seem, unless it be by the provision of section 829 of the Code of Civil Procedure, which forbids an assignor to testify in certain cases in favor of the assignee. If a legatee releases his interest to the executor, his relatives vdll take the legacy, but they can hardly be regarded as his assignees, and he is a competent witness. ^^ counting of his .principal, that he is incompetent to testify as a witness on behalf of the executor, to a personal transaction or communication be- tween him and the deceased. (Mil- ler V. Montgomery, 78 N. Y. 282.) But in an action by an administrator to set aside an assignment of a mort- gage made by his intestate, the next of kin, though interested in the event of the action, and claiming rights through the plaintiff, are not incompetent to tes- tify in his behalf, as to the conduct and actions of the intestate, and as to personal transactions of his with which they had no connection, and also as to communications made by him to others in their presence. (Holcomb v. Hol- comb, 20 Hun, 156.) The fact that a witness upon a contested applica- tion for administration by one alleged to be the husband of a decedent, is a second cousin of decedent, and en- titled to participate in the estate as one of the next of kin, in the event of the decease of all the first cousins of the latter, who are numerous, does not interest the witness in the event so as to prevent his testifying to a conversa- tion with the deceased. The exclusion depends upon a present fixed interest, not one remote and contingent and amounting to a mere possibility. ( Mat- ter of Hanley, 44 Hun, 559.) The pro- hibition does not apply when the de- ceased person is other than the one whose estate is in controversy in the proceeding. (Matter of De Baun, 1 Connoly, 203.) «1 Sherwood v. Judd, 3 Bradf. 267. eawhelpley v. Loder, 1 Dem. 368; Meehan v. Rourke, 2 Bradf. 385 ; Reeve v. Crosby, 3 Redf. 74; Coffin v. Coffin, 23 N. Y. 9; Matter of Wilson, 7 Eastern Rep. 736; Matter of Fitzgerald, 33 Misc. 325; 68 N. Y. Supp. 632. Upon the hearing of a contested probate one named as a legatee was called to testify to personal transactions with the testa- tor. Upon his competency being ques- tioned, a release of his legacy to the temporary administrator of the estate was produced. Objection being raised that the release did not discharge the legacy, and that if it did, it became in effect an assignment to the residuary legatee which would prevent the as- signor from testifying in her behalf, held, that the paper was receivable in evidence and the witness competent. (Stebbins v. Hart, 4 Dem. 501, 506, n. ) But a release by a son of a testatrix, of all his right, title and interest in her estate, in consideration of land con- veyed to him by her in her lifetime, if effectual, would not make him a com- petent witness as to personal transac- tions with his mother in an action to have probate of her will set aside, brought by another son, who would de- rive part of his title and interest by virtue of the release. (Bennett v. Ben- nett, 50 App. Div. 127 ; 63 N. Y. Supp. 387.) A release of the interest of a proposed witness in the estate in ques- tion which names no releasee and is not shown to have been delivered to any one is insufficient to qualify him to tes- tify as to a personal transaction with the decedent. (Matter of Torkington, 79 Hun, 128; 61 St. Rep. 426.) § 174. The Peobate of Wills. 128 §174. Privileged communications. — The competency of clergy- men, attorneys, and physicians, to testify concerning confessions and other confidential communications or information, is regu- lated by express provisions of the statute. The privilege of com- munication to a physician or surgeon,®^ and between attorney and client,®* and of confessions to a clergyman or other minister of any religion,®" is that of the person confessing, the patient, or the client, and not of the witness. The Oode expressly declares that the sections forbidding disclosures in the cases specified, apply to every examination of a person as a witness, unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient, or the client."* The chief application of these rules to proceedings for the probate of a will, is where the person confessing, the patient, or the client, was the testator, and the opinion was formerly advanced that, although the privilege cannot be said to die with the person, yet where, from his death, there is no one to claim it, the assertion of the privilege is of necessity excluded, except so far as may depend upon the discretion of the court.®^ But it has been held, that 63 Co. Civ. Proc, § 834. Sanford v. Sanford, 61 Barb. 293; 64 Co. Civ. Proc, I 835. Tlie prohibi- Brand v. Brand, 39 How. Pr. 193; tion applies to instructions given, by Graham v. People, 63 Barb. 468; Eog- one proposing to execute a will, to an ers v. Lyon, 64 id. 373 ; Carnes v. Piatt, attorney employed to draw it, and to 15 Abb. Pr. (N. S.) 337; Britton v. conversations had with the attorney Lorenz, 45 N. Y. 51; Taylor's Will, 10 for the purpose of enabling him to Abb. Pr. (N. S.) 300; Matter of Chap- carry out the instructions. (Matter of man, 27 Hun, 573; Matter of Sears, 33 Coleman, 111 N. Y. 220.) A question Misc. 141; 68 N. Y. Supp. 363. put to the attorney who drew the will 65 Co. Civ. Proc, § 833. See People as to who instructed him to draw it v. Gates, 13 Wend. 311. (such instructions not being given in 66 Co. Civ. Proc, § 836. the hearing or presence of any other 67 Allen v. Public Adm'r, 1 Bradf. person than the testator and witness) 221. But see Renihan v. Dennin, 103 was held to be incompetent in Matter N. Y. 573. It is not easy to discover of McCarthy, 48 St. Rep. 315. See jiny good reason why courts sliould Matter of Bedlow, 22 N. Y. Supp. volunteer to stop the mouth >of a wit- 290. But where the attorney, at the ness, and be " compelled to grope in request of the testator, read the will the dark when there is testimony of in- aloud in, the presence of the witnesses, telligent witnesses within their reach to he is not prohibited from testifying, as enable them to ascertain where the such reading is an express waiver of truth lies on the issues that they have secrecy. (Matter of Barnes, 70 App. to decide, the disclosure of which will Div. 523 ; 75 N. Y. Supp. 373. ) The at- not be a stain upon the memory of the torney who drew the will or advised the dead man, which is the property of his testator upon it, and afterward ac- family and kindred." (Per Ransom, cepted a retainer to contest its probate, S., in Matter of Coop, N. Y. Law J., cannot claim a privilege from testify- May 13, 1891.) The difficulty is now ing as a witness at the instance of the remedied by the amendment of 1892, proponents. ( Sheridan v. Houghton, 6 infra. Even before such legislation, Abb. N. C. 234; 16 Hun, 628.) See the General Term of the Fifth Depart- Blackburn v. Crawford, 3 Wall. 175; ment held that all instructions by Allen V. Public Adm'r, 1 Bradf. 221; counsel and all acts of a testator in 129 The Probate of Wills. § 175. the right to exclude the prohibited testimony survives to the rep- resentatives, in the premises, of a deceased person.** § 175. Qualification of physician. — A large number of decisions on the subject of the qualification of a physician to testify from knowledge acquired while attending a patient have been super- seded (or else made statutory law) by the amendment of section 836, adopted in 1892.*'* It was formerly established that a phy- sician who had attended the deceased in a professional capacity, was not a competent witness to testify, from knowledge acquired while attending him, as to his mental capacity,''" although he might testify to any knowledge obtained from personal acquaintance with the decedent before his professional relations with him com- menced, and after they ceased.^"' By the amendment referred to, the disqualification of a physician or surgeon to testify, etc., is limited to the disclosure of " confidential communications, and such facts as would tend to disgrace the memory of the patient:" with this exception, he may " disclose any information as to the mental or physical condition " of his deceased patient, which he acquired in attending him, only, however, when " the personal representatives of the deceased patient, or, if the validity of the last will and testament of such deceased patient is in question, the executor, or executors, named in said vdll, or the surviving hus- band, widow, or an heir-at-law, or any of the next of kin of said deceased, or any other party in interest," shall expressly waive the statutory disqualification upon the trial or examination.^^ the presence of witnesses connected 70 Matter of Coleman, 111 N. Y. 220. with the making and execution of a 71 Fisher v. Fisher, 129 N. Y. 654. will, which will tend to uphgld and See, generally, on this subject, John- support the instrument, may be proved son v. Johnson, 14 Wend. 637 ; Ken- by the person who assisted in its dall v. Grey, 2 Hilt. 300; People v. preparation at the time, though he Stout, 3 Park. Cr. 670; Westover v. was acting as testator's legal adviser, ^tna Ins. Co., 99 N. Y. 56 ; Grattan v. (Matter of McCarthy, 28 St. Rep. Metrop. Life Ins. Co., 80 id. 281 ; Eeni- 342.) han v. Dennin, 38 Hun, 270; 103 N. Y. 68 Staunton v. Parker, 19 Hun, 55. 573 ; Edington v. Mutual Life Ins. Co., This case is criticised in Pearsall v. 67 N. Y. 185 ; Dilleber v. Home L. Ins. Elmer (5 Eedf. 181), where, upon a Co., 69 id. 256 ; Matter of Loewenstine, contested application for the probate 2 Misc. 323; 21 N. Y. Supp. 93. of a codicil, an attorney was asked by 72 " The waivers herein provided for contestants to state a conversation had must be 'made in open court, on the between him and decedent, relating to trial of the action, or proceeding, and a the preparation by him, for decedent, paper executed by a party prior to the of a codicil not executed, subsequently trial, providing for such waiver shall to the execution of the instrument pro- be insufiScient as such a waiver. But pounded. Held privileged, but other- the attorneys for the respective parties, wise, it seems, as to conversation, etc., may, prior to the trial, stipulate for relating to the paper presented for pro- such waiver, and the same shall be bate. sufficient therefor." (Co. Civ. Proc., 69 L. 1892, c. 514. § 836, as amended 1899.) See Holden 9 §§ 176, 177. The Probate of Wills. 130 § 176. Qualification of attorney who is subscribing witness. — A testator, in requesting a person to sign as a subscribing witness to his will, is presumed to know the obligations assumed by the witness in respect to the proof of the will; among other things, the duty to testify as to the circumstances attending its execution, including the mental condition of the testator at that time, as evidenced by his action, conduct and conversation. The act of the testator, therefore, in requesting his attorney, who drew his mil, to become a witness tO' it, is clearly indicative of an intention to waive the statutory prohibition, and so leave the witness free to perform the duties of the office assigned him.^^ This rule is now made statutory by the amendment above referred to, which declares, in effect, that " an attorney, on the probate of a will," is not disqualified " from becoming a witness as to its prepara- tion and execution, in case such attorney is one of the subscribing "witnesses thereto.^* AETICLE THIED. WHAT LAW GOVERNS PROBATE. § 177. Law at time of testator's death. — The formalities requi- site to the due execution of a will are governed by the law exist- ing at the time of the testator s deaths unless otherwise provided by the law; for a will is ambulatory while the testator lives, and it takes effect only on his death. Hence, a statute affecting wills, which is enacted after a will is made, but before a testator's death, must, unless there be a saving clause as to such wills, take effect thereon.'^^ But it is usual for the Legislature, in changing the V. Metropolitan Life Ins. Co., 165 N. Y. torney being a subscribing witness is 13. It is not necessary that all the prima facie evidence of such waiver, persons mentioned should unite in and the burden is thrown upon the eon- such waiver. (Matter of Murphy, testants to show by affirmative proof 85 Hun, 575; 33 N. Y. Supp. 198.) that the legal inference is not war- The calling of the physician as a wit- ranted. A statute which seeks to limit ness by the personal representative and the extent to which witnesses. Whose re- asking him questions calculated to lation to the case may raise a doubt of elicit such evidence is a sufficient their competency to testify, must be waiver. (Holcomb v. Harris, 166 N. Y. strictly construed. (Matter of Halsey, 257; Pringle v. Burroughs, . 70 App. N. Y. Law J., May 13, 1890.) Div. 12; 74 N. Y. Supp. 1055.) 74 Co. Civ. Proc, § 836, as amended TSMatterof Coleman, 111 N.Y. 220; 1892; Matter of Gagan, 47 St. Rep. Matter of Gagan, 47 St. Hep. 444; affd., 444; affd., 49 id. 366. 49 id. 366 ; 21 N. Y. Supp. 350. The re Root v. Stuyvesant, 18 Wend. 257 ; waiver extends to all communications Bishop v. Bishop, 4 Hill, 138; Double- and transactions, between the testator day v. Newton, 27 Barb. 431; De Pey- and the attorney, having reference to ster v. Clendining, 8 Paige, 295 ; aflfd., the paper under consideration. (Mat- on other points suh nom. Bulkley v. ter of Lamb, 21 Civ. Proc. Rep. 324; 18 De Peyster, 26 Wend. 21. N. Y. Supp. 173.) The fact of the at- 131 The Peobate of Wills. §§ 178, 179. formalities prescribe for the due execution of wills, to except instruments previously executed, but not yet made effective by death. Such provision was made in the Revised Statutes.''® But by adding a codicil after a new statute has been passed, the tes^ tator republishes his will, and subjects it, in some degree, at least, to the effect of the new statute. ^^ In respect to the mode of •proof, the case is governed by tihe law in force when the will is propounded for probate.^* But the topic under consideration in- volves, also, questions concerning the lex loci. § 178. Law of place as to wills of real property. — In respect to wills of real property, situated within the State, the formalities of execution must of course be those prescribed by our OAvn law;™ but where the real property is situated in another State, the for- malities prescribed by tbe laws of that Stat© must be complied with. § 179. Wills of personal property. — In respect to wills of per- sonal property, the rule in this State formerly was that the for- malities of execution and attestation must be those prescribed by the law of the place where the testator was domiciled at the time of his death, for the reason, as was argued, that, as a will is wholly inoperative until the testator's death, and as the law of the dom- icile applies to the person and the personal property, the will, wherever made, and notwithstanding any changes of domicile, must be sustained, if at all, in respect to its formalities of execu- tion, by the law which was applicable to his person and his per- sonal property at that time.^'' But this doctrine is now changed in this State, and a will of personal property executed in any other State or Territory of the United States, the dominion of Canada, or the kingdom of Great Britain and Ireland, if executed as pre- scribed by the laws of the State or country where it was executed, or a will of personal property executed, by a nonresident of the State, according to the laws of the testator's residence may be proved here,^^ and this right to probate, as well as the validity of T6 Lawrence v. Hebbard, 1 Bradf. 80 Moultrie v. Hunt, 23 N. Y. 394; 252; Price v. Brown, id. 291. Dupuy v. Wurtz, 53 N. Y. 556. Real T7 Salmon v. Stuyvesant, 16 Wend, and personal property, though given by 320 ; Root V. Stuyvesant, 18 id. 257, the same clause of a will, and upon the 315. same trust, are severable, and the 78 Co. Civ. Proc., § 2482; Jauncey v. validity of one does not depend upon Thome, 2 Barb. Ch. 40. that of the other. (Knox v. Jones 47 79 See Vogel v. Lehritter, 139 N. Y. IST. Y. 389.) 223 ; 54 St. Rep. 595 ; Matter of Law, 81 Matter of Gaines. 84 Hun 520 • 32 56 App. Div. 454; 67 N. Y. Supp. 857; N. Y. Supp. 398; aiTd., 154 N. Y 747- Koppel V. Holm, 23 Misc. 557, 52 N". Y. Matter of Cruger, 36 Misc 477 • 73 N Supp. 830. Y. Supp. 812. §179. The Probate of Wills. 132 the execution of the will or its construction, is not affected by a change of the testator's residence made after its execution and publication.®^ The law of the domicile governs the formalities of execution of a will of personal property,®* the question of testamentary capacity,®* the right of the persons to dispose of the estate,®^ and the construction of the instrument;®* but the validity of bequests, unless expressly prohibited by the law of the testator's domicile, depends upon the law of the domicile of the legatee.®'' Questions of evidence, however, are determined by the lex fori or law of the jurisdiction in whose courts they are raised.®® On the other hand, a nonresident's will, though not executed in con- formity with the laws of his foreign domicile, where executed, may nevertheless be admitted to probate here, where there are assets, provided it was executed with the formalities required by our own statute.®^ 82 Co. Civ. Proc, § 2611, as amended 1893. See Booth v. Timoney, 3 Dem. 416; Matter of Booth, 127 N. Y. 109, and ante, § 140. 83 The courts of this State have jurisdiction to determine whether the will of a resident of another State was properly admitted to probate in such State, and will restrain the distrib- utees from receiving their shares on the ground of fraud and collusion in procuring such probate. (Davis v. Cornue, 151 N. Y. 172.) 84 Davison's Estate, 1 Tuck. 479. 85 Schultz V. Dambmann, 3 Bradf . 379 ; Wood v. Wood, 5 Paige, 596 ; Hope V. Brewer, 136 N. Y. 126. A leasehold estate for years in lands situated in this State, owned by a resident of an- other State, will be considered as per- sonal property, and as such, as to its transmission by last will and testa- ment, controlled by the law which gov- erned the person of its owner. (Des- pard V. Churchill, 53 N. Y. 192.) 88 Chamberlain v. Chamberlain, 43 N. Y. 424; Knox v. Jones, 47 id. 389; Caulfield v. Sullivan, 85 id. 153 ; Dam- mert v. Osborn, 140 id. 30, motion for reargument denied in 141 id. 564; 60 St. Rep. 337, which see; N. Y. Life, etc., Co. V. Viele, 161 N. Y. 11; 55 N. E. 311; Matter of Cleveland, 28 Misc. 369; 59 N. Y. Supp. 985; Wright V. Mercein, 34 Misc. 414; 69 N. Y. Supp. 936; Mackenzie v. Mackenzie, 3 Misc. 200; 23 N. Y. Supp. 270. Compare Mills V. Eogal, 4 Edw. 559; Isham v. Gibbons, 1 Bradf. 69; Matter of Rob- erts, 8 Paige, 446; 1 Redf. on Wills, 393. See Co. Civ. Proc, § 2694. The rule of law in another State in refer- ence to construing a will, is prima facie the same as that of New York. (Putnam v. Lincoln Safe Deposit Co., 34 Misc. 333 ; 66 App. Div. 136 ; Con- gregational Society v. Hale, 29 App. Div. 396; 51 N. Y. Supp. 704.) A married woman, separated from her husband, but not divorced, has no separate domicile, and her will must be construed according to the law of the husband's domicile. (Jones v. Jones, 8 Misc. 660; 60 St. Rep. 429.) But a will executed in New Jersey by an unmarried woman who afterward marries and removes to and dies in this State is governed by the law of this State and cannot be admitted to pro- bate, as it is revoked by the subsequent marriage. (Matter of Cobum, 9 Misc. 437; 30 N. Y. Supp. 383.) 87 Congregational, etc.. Society v. Hale, 29 App. Div. 396; 51 N. Y. Supp. 704; Matter of Lang, 9 Misc. 521; 30 N. Y. Supp. 388. 88 Wharton, Conflict of L., § 574. 89 Matter of McMulkin, 5 Dem. 295. 133 The Probate of Wills. § 180. AETICLE FOUKTH. FACTS MATEEIAL TO THE QUESTION OF PEOBATB. SUBDIYISION 1. PRELIMINAEY CONSIDERATIONS. § 180. The issues in probate cases. — The subject-matter of a contest in a probate proceeding miay be confined exclusively to the factum of the will, or it may include also the exposition of the will, that is, its construction and effect, if it be found to be a valid will for any purpose. The distinction between these two Sfubjects of jurisdiction is important. The one question is as to the genuineness and valid execution of the paper, involving the testamentary capacity of the testator, his freedom from restraint, and all questions of fraud and mistake in the testamentary act, including in some measure the legality of the testamentary dis- positions. The other question is as to the meaning of the lan- guage 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 impeach or to sustain the will, while, on the question of construction, such evidence is only admissible within certain strict rules and limitatJons.®" Pre- vious to the adoption of chapter 18 of the Code of Civil Proced- ure, Surrogates' Courts (with the single exception of that of iN^ew York county®^) 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 pro- ceeding for probate, to pass upon the question, whether any pro- vision 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.®^ The 90 Matter of Keleman, 126 N. Y. 73. 92 See McLaughlin's Estate, 1 Tuck. 91 L. 1870, c. 359, § 11. That statute 79; Matter of Oilman, 38 Barb. 364; conferred on the surrogate the same Nelson v. McGiflfert, 3 Barb. Ch. 158; power and jurisdiction as the Supreme Matter of Forman, 54 Barb. 274; Bevan Court had, in determining the construe- v. Cooper, 72 N. Y. 317 ; Waters v. Cul- tion, validity, or legal effect of wills len, 2 Bradf. 354; Hillis v. Hillis, 16 of real or personal property — much Hun, 76. broader than those conferred by the present statute. §§ 181, 182. The Peobate of Wilis 134 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 dispose 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 genuineness of the will and the validity of its execution are determined, the court may, if so required by any party in interest, pass upon " the validity, construction, or effect of any disposition of personal property, contained in the will of a resident of the State, executed within the State," unless the will is rejected for failure of proof of the statutorjr requisites.®^ The present chapter is devoted to a consideration of the rules and practice governing the determi- nation of questions arising itpon the factum of the will. § 181. Factum of the will. — By this phrase is not meant m,erely the formal execution and attestation of the instrument. It is true that the formal execution and publication of the testament- ary paper is the best, and, in most cases, the only evidence of the testator's intention to make a will, but the questions, whether the testator intended to make the particular will offered for probate ; whether his instructions to the draftsman were comprehended; whether those instructions were correctly put in writing; whether, when the will was read, he understood its contents; whether they conformed to his real wish; whether, in fact, this particular instru- ment is his will — are all elements of the factum of the will, and are to be determined 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 McoU,®* " means not barely the signing of it, and the formal publication or delivery, but proof, in the language of the condidit, that he well knew and under- stood the contents thereof, and did give, will, dispose, and do, in all things as in the said will contained." It may be said genei^ ally, 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 by the surrogate whenever they are raised in a proceeding for the probate of the instrument. § 182. Testamentary character of the paper propounded. — But it is proper to observe, in the first place, that the instrument must 93 Co. Civ. Proc, § 2624. The exer- 94 Zacharias v. Collis, 3 Phillim. 179. cise of this jurisdiction is the subject of And see Burger v. Hill, 1 Bradf . 363 ; the next following chapter. Fisher v. Clark, 1 Paige, 176; Colton V. Ross, 2 id. 398. 135 The Peobate of Wills. § 182. be testamentary in its character — that is, it must have been in- tended by the testator as a last disposition of his property and estate.^* No technical language or form is essential, as in a deed, to give effect to a testator's intention, and before the requisites, as to execution and publication of wills, were prescribed, by the Revised Statutes, almost any form of instrument and memoran- dum might operate as a testamentary disposition of personal prop- erty. Only wills of real property were required to be executed and attested with certain formalities, although wills of personal property, like wills of real property, were required to be in writ- ing, with some limited exceptions. A will of real property could be proved in the Supreme Court or the Common Pleas of the county only. The Surrogates' Courts had jurisdiction to grant probate of a wijl of personalty only, and, in one case at least,®^ such a court was upheld in granting probate on a testamentary paper, unsigned by the testator, and unattested by mtnesses. But it is not so now. Thus, a memorandum annexed to bonds, direct- ing that, after the holder's death, they be canceled or not en- forced, except by way of set-off, not being executed as a will, has no validity as such.®'^ But a paper expressing a wish to give cer- tain sums, and that neither " executors nor heirs will object to carrying out this my will," is testamentary in its character. The character of the instrument depends on its substance, not on its form or any declaration of the testator. ^^ A paper need not con- fain a statement that it is a will to make it one. Thus, an instru- ment duly executed by the deceased, which simply nominates cer- tain persons as executors, and authorizes them to sell real estate, 95 If it is shown that the paper, cipient to put others in possession of though perfectly executed and attested, his property, was held a valid will, was made, not animo testandi but in (Morrell v. Dickey, 1 Johns. Ch. 153.) jest, only to exhibit the brevity of ex- And a Scottish deed of disposition and preasion of which a will was capable, it settlement was held a will, and prova- is not the will of the testator. (Nicholas ble. (Matter of Easton, 6 Paige, 183.) V. Nicholas, 2 Phillim. 180.) And, to 9T Brinckerhoflf v. Brinckerhoff, 2 N. the same effect, see Trevelyan v. Trevel- Y. Leg. Obs. 424. yan, 4 id. 153. If two persons, intend- 98 Carle v. Underbill, 3 Bradf. 101. ing to make their wills, each, by mis- An instrument conveying land, which take, executes the document prepared is not intended to take effect until after for the other {Be Hunt, L. R. 3 P. & D. the death of the person executing it, is 250 ) ; or if the document was intended properly construed to be a will, and only as a contrivance to effect some col- not a deed, where there is nothing in lateral object, e. g., to be shown to an- the language of the instrument and in other person to induce him to comply the circumstances under which it was with the testator's wish (Lister v. executed to indicate that it was in- Smith, 3 Sw. & Tr. 282); in neither tended as anything else than a will, and case is there animus testandi. hence such instrument is subject to 96 Watts V. Public Adm'r, 4 Wend, revocation by the person executing it at 168. So a letter contemplating the any time during his life". (Perry v. writer's death, and requesting the re- Perry, 21 N. Y. Supp, 133.) §§ 183, 184. The Probate of Wills. 136 is a -will;*^ so, too, one which merely directs payment of funeral expenses and legacies.-' § 183. Conditional will. — Where the paper propounded is clearly made dependent upon a condition precedent in its very teirms, performance of the condition must be shown before the paper can be upheld as a will. If it clearly appears, on its face, that the paper was not intended to remain an operative will, ex- cept on the happening of a certain event, or other contingency, then the surrogate Avill inquire, before granting probate, whether that contingency has arisen. If the condition is of partial appli- cation, however, and does not express that the entire instrument is to take effect or fail upon a particular event, probate will be granted, and the effect of the condition upon particular legacies be left to future consideration.^ We have already mentioned conjoint or mutual wills which are provable on the death of either party.^ § 184. Circumstances of execution, delivery, and custody of will. — Besides the formalities requisite for the due execution, publica- tion, and attestation of the paper propounded, the surrogate may inquire, if he desire to do so, into the circumstances of the deliv- ery and possession of the will, and for that purpose may, in his discretion, require proof of the circumstances attending the execu- tion, the delivery, and the possession thereof, or other circum- stances, to be made by the person who received the will from the testator, if he can be produced, as also by the person presenting it for probate.* The court is not confined, therefore, to the par- ticular issues raised by the objections of the contestant. While the surrogate may, in his discretion, require the examination of the person who has had possession of the will since its execution, he cannot compel the examination of the lawyer who drew the wilL^ But extrinsic evidence of this, or of any sort, is only competent 99 Barber v. Barber, 17 Hun, 72. 3 See § 154, ante. 1 Matter of Buchan, 16 Misc. 204 ; 4 Co. Civ. Proe., § 2622. Evidence of 38 N. Y. Supp. 1124. the circumstances surrounding testa- 2 Eac p. Lindsay, 2 Bradf. 204; tor, at the time of the execution of a Thompson v. Connor, 3 id. 366. For will, where its terms are doubtful, is the case of a codicil adjudged to have admissible to show intent, but occur- been executed conditionally, to be made rences long thereafter may not be effectual only by its being attached to proved for the purpose. (Morris v. the will at a subsequent period, which Sickly, 133 N. Y. 456; 45 St. Eep. never was done, and it did not at the 735.) time express testator's wish, see Mat- 5 Taylor's Will, 10 Abb. Pr. (N. S.) ter of Buekwell, N. Y. Law J., Mar. 300. 18, 1891 (N, Y. Surr. Ct.). 137 The Peobatb of Wills. §§ 185, 186. on the trial of an issue as to the factum of the will. Where no question of the validity of the will itself is raised, and the only- issue is as to " the construction, validity, and effect " of its dispo- sitions of property, extrinsic parol evidence of the circumstances under which the will was executed is incompetent. Even if by such extrinsic evidence a trust ex maleficio could be established, a Surrogate's Court has no jurisdiction to determine such an issue.® § 185. Order of proof. — If the allegations of the petition as to the death of the testator, his residence in the county, or the exist- ence of property there, or as to any other jurisdictional fact, are put in issue by an answer, or, even in a case not contested, where these facts are imperfectly alleged, the proponent, in the due order of proof, is bound, fij^t, to establish these facts by proof. The next step is to prove the requisite formalities attending the execution, publication, and attestation of the will, and then to show that the testator was, at the time, of proper age and mental soundness, and was not unduly influenced in the testamentary act. Accordingly, it has been held that where the probate is contested in respect to the genuineness of the paper, the testa- mentary capacity of the decedent, and the freedom of the act, the contestant's evidence as to the genuineness of the paper should first be received, and that relating to capacity and undue influence successively afterward.^ § 186. Decedent's death and identity. — " The existence of the jurisdictional facts prescribed by the statute " ^ is essential to the validity of the surrogate's decree in this, as in every other, pro- ceeding. The fact of the death of the person whose will is sought to be proved is, of course, of the first importance, as a test of juris- diction. Where the testator's death is controverted, or is not stated in the petition for probate, on positive personal knowledge, the burden of proving it is upon the proponent.® If the fact can only be imperfectly proved, circumstances must be shown suifi- cient to raise a legal presumption of death. It is necessarily im- possible to give any standard by which to measure the sufiiciency of circumstantial evidence of death; mere information and belief, founded on nothing, is of course not proof in any legal sense. ^'^ 6 Matter of Keleman, 126 N. Y. 73. lORoderigas v. East River Savings To the same effect. Matter of Walker, Bank, 76 N. Y. 316. See Matter of 136 id. 20. See c. VII, post. Morgan, 30 Misc. 578, where the facts 7 Taylor's Will, 10 Abb. Pr. (N. S.) and circumstances were reviewed and 300. held sufficient to establish the death of 8 Co. Civ. Proc, § 2474. the testator in a hotel fire. 9 Prout V. McNab, 6 Dem. 152. 186. The Peobate of Wills. 138 It is not necessary, speaking generally, that any specific period of time should elapse to create the presumption of death, but it may arise whenever the facts of the case will warrant.-'^ The 11 In Matter of Nolting (43 Hun, 456), it appeared that the alleged de- cedent had left his home under the de- pression following an attack of delirium tremens, declaring his intention to com- mit suicide, and had gone toward the river; that thereafter he had not been heard from for more than ten years, although previously he had communi- cated regularly with his relatives. Held, that, from his silent absence dur- ing ten years, the law would raise a presumption of his death, which, coupled with the facts and circum- stances produced to the surrogate, was sufficient to justify the issuing of let- ters of administration, and that the surrogate erred in refusing to do so. As to presumption of death arising from prolonged absence, see Keller v. Stuck, 4 Redf . 294 ; Machini v. Zanoni, 5 id. 492; Matter of Sullivan, 51 Hun, 378; Stouvenel v. Stephens, 2 Daly, 319; Oppenheim v. Wolf, 3 Sandf. Ch. 571; Gerry 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; Eagle v. Em- met, 4 Bradf. 117; 3 Abb. Pr. 218; Moehring v. Mitchell, 1 Barb. Ch. 264; Clarke v. Cummings, 5 Barb. 339, 354; Matter of Aekerman, 2 Kedf. 521 ; Mat- ter of Ridgeway, id. 226; Matter of Tobin, 15 St. Eep. 749 ; Matter of Ship- man, 22 id. 362; Allen v. Ketcham, 24 id. 251; Ferry v. Sampson, 17 id. 428; Karstens v. Karstens, 20 Misc. 247 ; 45 N. Y. Supp. 966; afTd., 9 App. Div. 229; Czech v. Bean, 35 Misc. 729; 72 N. Y. Supp. 402; Matter of Taylor, 49 St. Rep. 644. If the party whose death is in ques- tion 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 all on board per- ished ; especially where the family and friends of the missing man have made every effort and exhausted apparently every source of information to ascer- tain news of him and the vessel. (Matter of Stewart, 1 Connoly, 86; 18 St. Rep. 978.) In Matter of Norton (N. Y. Law J., June 12, 1891), there was ho positive proof of the time or place of testator's death ; " but," said Ransom, S., " I am satisfied from the proofs that, months since, he was lost at sea. On Novem- ber 24, 1890, a little steamer, named for the testator, departed from New London, Conn., for Toulon, France, having on board himself, his wife and niece, and a crew of seven men. Noth- ing was heard of its movements there- after, except a dubious statement trans- mitted by cable, that an Algerian trav- eler in Toulon stated that it had been seen in Gibraltar in the latter part of December. Subsequent inquiry failed to discover 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 water that the deck was only from twenty to twenty-two inches above the water line. Within three days after its departure, heavy gales beginning on the southeast coast of the United States, moved in a, northeasterly course, increasing in vio- lence until they became hurricanes. The time of the departure 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 case, many months having elapsed since the departure of the vessel, and after ex- traordinary efforts made, no intelli- gence having been received of its ex- istence or the existence of any of those on board, I hold that the tes- tator's death is proven, and a decree of probate of the will may be pre- sented. In Matter of Alexander (X. Y. Law J., Jan. 7, 1893). it aD- peared that testator took his departure 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 descrip- tion of his vessel was seen to sink off the Bermudas a few days afterward, and about the time it should have reached the locality. Different articles of cargo were found floating in the vicinity which were identified as of the same character and marks of mer- chandise shipped by the owners of the 139 The Peobate of Wills. § 187. statute declares that " a person upon whose life an estate in real property depends, who remains without the United States, or absents himself in the State or elsewhere for seven years together, is presumed to be dead, in an action or special proceeding con- cerning the property in which his death comes ia question, unless it is affirmatively proved that he was alive within that time." ^^ The presumption of death, arising from long, unexplained absence, may be rebutted by proof of the person's character and habits, and the manner of his disappearance, making it improbable that he would have communicated with his friends.-*^ Similar to the question of testator's death is that of his identity; as where the persons called in by him to witness his will were strangers. In such a case, his identity must be shown, and this may be done by proving that the signature to the paper offered for probate is in his handwriting.-^* § 187. Burden of proof generally. — The proof of a will must be in accordance with the rules of evidence which prevail in all judicial investigations.-'® The party propounding 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 executed by a tesitator of sound mind and lawful age, etc.-'® The subject brig from this city on the voyage. The and habits of the alleged decedent and hydrographic reports and the news- the manner of her disappearance, it is paper reports sho-wed that about the extremely improbable that she -would time the vessel sunk violent gales pre- have been desirous to communicate vailed in the vicinity. An insurance with her relatives. On the streets of a company paid the o-wners for the loss large city, without money, without of the cargo. A decree of probate was friends, with no moral training and no granted. A presumption of the death education, and with the vicious propen- of an emigrant from a foreign country sities which are hereafter described, it to the United States, who came here requires no suggestion on my part to in 1851, and has not been heard from imagine the fate that overtook her." since at his former home, does not The court refused to entertain the pre- arise, in the absence of evidence of sumption of death. Keller v. Stuck (4 inquiry for him in this country. Redf. 294) was the case of two children (Matter of White, 31 Misc. 484; 65 N. who, when very young and twelve years Y. Supp. 567.) before testator's death, were removed 12 Co. Civ. Proc, § 841, as amended to a western State to acquire a resi- 1891. The section also specifies -what denee there. Held, that the fact of length of time, in failing to claim pro- their not having been heard from since ceeds of land deposited for unknown then, raised no presumption of their heirs, in partition sales, shall work a death, prior to that of testator, presumption of death. 14 Mowry v. Silber, 2 Bradf . 133. 13 In Matter of Miller (N. Y. Law J., 15 Peebles v. Case, 2 Bradf. 226. Mar. 18, 1890), on a question of dis- 16 Delafield v. Parish, 25 N. Y. 9, 97; tribution of an estate in remainder, the Matter of Kellum, 52 id. 517; Roll- death of an infant remainderman was wagen v. RoUwagen, 63 id. 504 ; Kings- sought to be inferred from her absence ley v. Blanchard, 66 Barb. 317 ; Dickie and failure to communicate with her v. Van Vleck, 5 Redf. 284; Legg v. relatives for more than seven years. Meyer, id. 628; Miller v. White, "From the facts as to the character id. 320; Cooper v. Benedict, 3 Dem. § 187. The Pbobate of Wills. 140 of presumptions and burden of proof as to the mental capacity of a testator, is more in order for a subsequent page.''^ As to prov- ing 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 circumstances corroborative of due eixecution, and no evidence is given disproving a compUance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnessea are unable to recollect the execution, or what took place at the time.''* 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 contrary, a decree admitting it to pro- bate will be reversed. ^^ In general, the burden of proof remains with the proponent to the end of the trial, and if, upon considera- tion of all the evidence on both sides, the court is not satisfied that the paper propounded contains the last will of the deceased, it must refuse probate. Indeed, if there is a reasonable doubt whether one or more of the directions of the statute have not been omitted, the probate must be refused, although it may appear probable that the paper expresses the testator's intentions.^" Where it is alleged 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 estab- lish a revocation of the one propounded.^' 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 the parties resisting the allegations.^^ 136; Matter of McMulkin, 6 id. 347; mitting it to probate. (Delafield v. Matter of Elmer, 88 Hun, 290; 34 N. Y. Parish, 25 N. Y. 35.) A grave doubt, Supp. 406 ; Matter of Hitchler, 25 Misc. such as will justify reversal, is not 365 ; 55 N. Y. Supp. 640. The subject formed by the fact that the sustaining of the burden of proof in probate cases, witnesses contradict each other, as to and of the effect of Delafield v. Parish, the facts attending the execution, where are discussed in the Albany Law Jour- the evidence of each witness taken sepa- nal of July 16, 1881. rately shows tLe due execution of the "See §§ 206, 212, 217, post. will. (Matter of Lyddy, 24 St. Eep. IS Matter of Kellum, 52 N. Y. 517; 607.) Orser v. Orser, 24 id. 51; Brown v. 20 Theological Seminary of Auburn v. Clark, 77 id. 369. As to effect of the Calhoun, 25 N. Y. 422, note; Howland attestation clause as evidence of execu- v. Taylor, 53 N. Y. 627. And see Irwiu tion and publication, see post, § 203. v. Irwin, 1 Redf. 495 ; Crispell v. Du- 19 Howland v. Taylor, 53 N. Y. 627; bois, 4 Barb. 393; and Burritt v. Silli- Knapp V. Eeilly, 3 Dem. 427. A mere man, 16 id. 198. doubt as to the validity of the will, will 2iMairs v. Freeman, 3 Eedf. 181. not justify the appellate court in re- 22 Collier v. Idley, 1 Bradf. 94. Corn- versing a decree of the surrogate ad- pare Shaw v. Shaw, 1 Dem. 21. 141 The Peobate of Wills. §§ 188-190. § 188. Weight of evidence.— No unvarying rule as to the amount of eyidence necessary to establish the execution of a will can be laid down, which is to control in every ease, 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.^^ 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 Surrogate's Court.^ The proponent is not required to pro- duce 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. SUBDIVISION 2. EXECUTION, PUBLICATION, AND ATTESTATION OF WILL'. § 189. Formalities of execution. — To entitle a testamentary pa- per to be admitted to probate, certain facts in reference to its mode of execution, publication, and attestation, are required by the statute to be shown.^® The provision of the Statute of Wills, just cited, has been the subject of very frequent adjudications, and its construction, as now settled, may be best stated in the fol- lowing language, slightly modified from that of the section, as it stands on the statute book: Every will, except nuncupative wills (made in the cases prescribed in another section), must be exe- cuted before the testator's death,^^ and completely attested in the following manner: § 190. Subscription of will. — It must he subscribed by the tesz tator at the end of the will; that is, the testator must sign his name or make his mark below the body of the writing. His signing his 23 Eider v. Legs;, 51 Barb. 260; Nex- of execution of a will under the Eng- sen V. Nexsen, 3 Abb. Ct. App. Dec. lish statute, and in this State, before 360; 2 Keyes, 229. 1830, see Watts v. Public Adminis- 24Isham V. Gibbons, 1 Bradf. 69. trator, 4 Wend. 168; Jauncey v. And see Collier v. Idley, id. 94. And Thome, 2 Barb. Ch. 40 ; Price v. Brown, conversely, a will once proved as a 1 Bradf. 291. For the history and con- will of personalty, may afterward, on struction of our statutes regulating the discovery of real property, be the execution and attestation of wills, proved anew as a will of real estate, see Iloysradt v. Kingman, 22 N. Y. 372. (Smith's Estate, 1 Tuck. 108.) 27 The formalities must be fully com- 25 See § 165, ante. pleted before the death of the testator. 2S 2 E. S. 63j § 40. For the requisites If he dies in the act, and, though after § 190. The Probate of Wills. 142 name in the body of the writing is not a subscription within the meaning of the ■statute.''® The " end of the will," in the statute, means the end of the instrument as a completed whole, and where the name is written in the body of the instrument, with any material portion, — e. g., a clause revoking former wills, and a portion only of a clause naming an executor, — following the sig- nature, it is not properly subscribed, nor can it be claimed that the portion preceding the signature is valid as a will.^ Where a will, after the signature of the decedent and the witnesses, con- tains a clause appointing an executor, the validity of the instru- ment depends upon the question whether such clause was written before or after execution. If written before execution the sig- nature is not at the end of the will, and the instrument is invalid.^"* his subscription, before the witnesses the writing of the name " J. Kelly " in have signed, the will is not valid. (Ver- the last clause of the will, if written nam v. Spencer, 3 Bradf . 16 ; Matter of by the testator, was not a valid sub- Fish, 88 Hun, 56; 34 N. Y. Supp. scription: first, because he did not 536; affd., 153 N. Y. 679.) In present that name to the witnesses for Knapp V. Keilly ( 3 Dem. 427 ) , the their attestation, and the subsequent testator began to sign his name Pat- signing precluded the idea that he rick, and after writing " Pat " be- wrote it or adopted il for his signature came too weak to go on, and desisted, to the paper as a will ; second, because though not as having completed all he the place where the name appears set out to Avrite. Held, no signature, was not the end of the will. See what was written not being intended as also Matter of O'Neil, 91 N. Y. a complete signature. 516; Jackson v. Jackson, 39 id. 153; 28 At common law, if a person wrote Matter of Donner, 37 Misc. 57 ; 74 his name in the body of a will or con- N. Y. Supp. 828 ; Matter of Conway, tract with intent to execute it in that 124 N. Y. 455; Matter of Blair, 84 manner, the signature so written was Hun, 581: affd., 152 jST. Y. 645; as valid as though signed at the end of Matter of Whitney, 153 id. 259 ; the instrument. See Matter of Booth, Matter of Andrews, 162 id. 1. 127 N. Y. 109. But see Matter of Noon, 31 Misc. 29 Sisters of Charity v. Kelly, 67 420, where the paper propounded for N. Y. 409. In this ease, K. presented probate was entirely in the handwrit- to two persons a paper, which he stated ing of the testatrix, who had left a he had drawn as his will, and requested blank space in the attestation clause so them to witness it. The last clause that it read, " Subscribed by , the of the instrument was as follows: "I testatrix," etc., where she signed it make, constitute and appoint Edward with the intention of executing the McCarthy to be executor (J. Kelly) of will in the presence of the witnesses this, my last will and testament, here- who thereupon signed as such at her by revoking all former wills by me request. Held, a sufficient subscrip- made.'' There was no evidence that tion within the statute. (Distinguish- the testator wrote the name "J. Kelly " ing Sisters of Charity v. Kelly, supra.) save his statement as to drawing the The validity of the will is not af- Avill. After the two witnesses had feeted because at the time it was exe- signed, K. wrote his name, in the at- I'uted the separate sheets were not fas- testation clause, so that it read : " Sub- tened together. (Matter of Snell, 32 scribed by John Kelly," etc. There was Misc. 611 ; 67 N. Y. Supp. 581 ; Matter no other signature. Held, probate was of Fitzgerald, 33 Misc. 325 ; 68 N. Y. properly refused; that the signature Supp. 632.) in the attestation clause was not a due 30 Matter of Jacobson, 6 Dem. 29S. execution, as it was written after the See Matter of Gedney, 17 Misc. 500; 41 witnesses had signed their names; that N. Y. Supp. 205. 143 The Peobate of Wills. §190. Tke subscription musit be made immediartely below wkere the body of the will terminates, and without any considerable inter- vening space. A moderate blank space, however, left between tke last line of tke will and tke subscription is not fatal.^^ But wkere, after tke usual subscription of tke testator, tke appoint- ment of executors was under-written and signed by tke witnesses only, and tken a direction to tke executors was under-written and signed by tke witnesses only, and tken a f urtker direction to the executors was under-written and signed by tke testator only — tke will was not duly executed.^* A substantial compliance witk tke direction of tke statute is, kowever, all tkat is necessary,^^ as wkere the testator's seal was affixed in the usual place for signature above tke witnesses' attes- tation clause, but kis subscription was written in proximity to the signatures of tke witnesses below tkat clause;^* or wkere, after 31 Matter of Gilman, 38 Barb. 364; Hitchcock V. Thompson, 6 Hun, 279; revg. Heady's Will, 15 Abb. Pr. (N. S.) 211. Compare Dennett v. Taylor, 5 Redf. 561; Matter of Collins, id. 20. The existence of unruled blank spaces between the body of the will, written on the first page of a folded sheet, being a printed form, and the lower part of the third page, where the executor's clause and attestation clause, partly in print, were, — -Held not to require the rejection of the will. (Matter of Mur- phy, 48 App. Div. 211; 62 N. Y. Supp. 785. See contra, McCord v. Louns- bury, 5 Dem. 68. 32McGuire v. Kerr, 2 Bradf. 244. See Matter of Sanderson, 9 Misc. 574. In Matter of Conway (124 N. Y. 455; 36 St. Rep. 486 ) , the will was written upon a blank form consisting of a sin- gle half sheet, one side of which com- menced with the usual printed formula and ended with the testimonium and attestation clauses. The blank space intended for the disposing portion of the will was entirely written upon, and at the end, in parentheses and under- lined, were the words " carried to back of will." Upon the back of will, just below the space left for the indorse- ment in parentheses, and underlined, was the word " continued." Then fol- lowed bequests of personal property to the testator's sons and daughters which filled up the whole of instrument from the space of indorsement to within one inch of the bottom, and be- low it all appeared the words " signa- ture on face of will." Held, not a sub- scription at the end of will. 33 Matter of Voorhis, 125 N. Y. 765; more fully, 36 St. Rep. 173; Matter of Williams, 2 Connoly, 579; 15 N. Y. Supp. 828; aflfd., 19 id. 778; 46 St. Rep. 791; Matter of Carey, 14 Misc. 486; 36 N. Y. Supp. 817. 34 Cohen's Estate, 1 Tuck. 286 ; Tay- lor V. Wardlaw, 3 Dem. 48. Where the signature of a testatrix, placed in a blank space in the attestation clause, was intended as her subscription and so understood by tl;^ witnesses, it is sufiicient. (Matter of Acker, 5 Dem. 19; Matter of Noon, 31 Misc. 420.) But in Matter of Plaisted (N. Y. Law J., March 24, 1892), the decedent exe- cuted her will in due form, and, subse- quently, in extreme illness, sent for a friend and directed him to take memo- randa in respect of a codicil. He did so, she wrote her name thereto, " Eva." She then signed her name two-thirds down on a blank page of legal-cap, leaving space for an attestation clause, and requested the gentleman to whom she had dictated the memoranda, and a lady, to sign their names below the space for the attestation clause. In accordance with her request, the mem- oranda and the blank for the codicil were sent to her attorney at Superior, Wisconsin, with a request that he write in the codicil in accordance with the memoranda, and to put in an attesta- tion clause over the signature of the witnesses, probably under the supposi- tion that the document would be valid. § 191. The Peobate of Wills. 144 due execution and attestation of a complete will, the testator added other directions without attestation, but which were such as might be rejected without impairing tlie will.*^ So where the subscription and attestation of the will were sufficient, but a copy of another instrument, not testamentary in character, was annexed to the will and incorporated into it by express reference in the will, it was held that the validity of the will was not affected, although the annexed instrument was not subscribed.^® A sub- scription after the attestation clause meets the requirement of the statute. By so signing, the testator makes that clause a part of the will.^^ It must not be understood, however, that a will is entitled to probate simply because the testator intended to con- form to the statute. It is the intention of the Legislature, not that of the testator, which controls. ^^ § 191. Subscription by mark.— The testator may make his mark, or a subscribing witness may do so for him, if he cannot write ;^® or he may sign by the hand of a third person. Such signature must be made by the testator's direction, and in his presence, and the person whose hand makes the signature must attest the will as a witness. An imperfect or indistinct subscription of the testa- tor's name may be regarded as his mark, and thus constitute a compliance with the requirements of the statute.*" When the signature of the testator is by mark, it is no objection that the testator's name, and the words "his mark," were written by a witness after he made his mark, and that no proof was given of distinct direction to him by the testator. It is enough if the declaration and the signature were made on the same occasion, and The attorney did aa requested, and 37 Younger v. Duffie, 94 N. Y. 535; wrote a letter of instructions to have Matter of Laudy, 78 Hun, 479; 148 the paper executed. She died before N. Y. 403; Matter of Gamage, N. Y. receiving it. Probate was denied. Law J., Dec. 20, 1892. 35 Conboy v. Jennings, 1 Sup. Ct. 38 Matter of Andrews, 162 N. Y. 1 ; (T. & C.) 622. This case is distin- 30 Civ. Proc. Rep. 377. See Matter of guished in Dennett v. Taylor, 5 Eedf. Hitchler, 25 Misc. 365. 561. See also Brady v. McCrosson, 5 39 Butler v. Benson, 1 Barb. 526; Eedf. 431; Matter of Collins, id. 20; Morris v. Kniffin, 37 Barb. 336; Dack McMillen v. McMillen, 13 Wkly. Dig. v. Dack, 19 Hun, 630; Simpson's Will, 350, and cases cited or referred to in 2 Redf. 29. In the last case, it was next succeeding note. held that a will so subscribed might be 36 Tonnele v. Hall, 4 N. Y. 140 ; proved when only one subscribing wit- Thompson V. Quimby, 2 Bradf. 449. ness could be examined, thus overrul- Gompare Matter of O'Neil, 91 N. Y. ing Matter of Walsh, 1 Tuck. 132. As 516; Dennett v. Taylor, 5 Redf. 561; to proof of such testator's " handwrit- Matter of Nies, 13 St. Rep. 756. As ing," see § 202, post. to effect of annexing unsigned testa- wHartwell v. McMaster, 4 Redf. mentary papers to an otherwise prop- 389. erly executed will, see Matter of Fults, 42 App. Div. 593; 59 N. Y. Supp. 756. 145 The Probate of Wills §§ 192, 193. as one transaction. Indeed, signing by mark would be sufficient, ■without any such written memorandum.*^ § 192. Signature by another person.— So, too, the testator's hand being weak, or he being illiterate, a third person may guide his hand in the making of his siibscription.*^ Indeed, it may be stated, as a general proposition, that any of the acts required of the testator by the statute may be done by another person in his presence, with his assent and approval.*^ Where, however, the evidence leaves in doubt whether the subscription was made by the decedent alone, or with the aid of another, and there is noth- ing to show that he requested or desired any other person to sub- scribe it for him, or to aid him in doing so himself, probate is properly refused.'** A seal is not sufficient to attest a will, nor is it necessary.** § 193. Witnesses of subscription. — The will must he subscribed by the testator in the presence of each of at least two witnesses, or must be acknowledged by him to have been subscribed, to each of such attesting witnesses or to such of them as were not present at the mahing of the subscription.'^^ Subscribing witnesses to a « Jackson v. Jackson, 39 N. Y. 153 ; 46 Matter of Laudy, 148 N. Y. 403 ; Robins v. Coryell, 27 Barb. 556. And Lyon v. Smith, 11 Barb. 124; Carroll see Chaffee V. Baptist Missionary Con- v. Norton, 3 Bradf. 291; Tonnele v. vention, 10 Paige, 85; Hollenbeck v. Hall, 5 N. Y. Leg. Obs. 254; Spaulding Van Valkenburgh, 5 How. Pr. 281. v. Gibbons, 5 Redf. 316; Matter of De 42 Campbell v. Logan, 2 Bradf. 90 ; Haas, 9 App. Div. 561 ; 41 N. Y. Supp. Van Hans-wyck v. Wiese, 44 Barb. 494. 696. In Baker v. Woodbridge (66 Barb. In Matter of Kearney (69 App. Div. 261), it appeared that neither of the 481; 74N.Y. Supp. 1045), the testator's subscribing witnesses saw the testa- physician and an attorney, witnesses trix sign, and to neither of them did to his will, testified that at testator's she acknowledge that she had signed it, request the attorney assisted him in and neither of them saw her name upon signing the will, he being very weak. it. One of the witnesses testified that The attorney took testator's hand in S., who drew the will and called him his own, and, without touching the pen, to witness it, said to him in the pres- guided testator in writing his signa- ence of the testatrix, holding out to ture. An expert testified, on compari- him a paper so folded that he did not son with two of testator's normal sig- see the signature, " That is Mrs. Bell's natures, that he failed to see " a par- will," and requested him to sign his tide of his handwriting in the signa- name. The testatrix said nothing and ture," and that testator had no super- did nothing so far as he remembered, intendence, mental or physical, in the The other witness testified that S. had act. Held, that the signature was that desired him to come and witness Mrs. of testator; the extent of requested as- Bell's will; that when he went into sistance, so long as it is assistance, and the room a paper was handed to him not control, not invalidating it. and he signed it ; that nothing was said 43 Robins v. Coryell, 27 Barb. 557 ; in Mrs. Bell's presence about its being Gilbert v. Knox, 52 N. Y. 125 ; Peck v. a will. S., who drew the will, did not Gary, 27 id. 9 ; Meehan v. Rourke, 2 remember that he was present when it Bradf. 385. was executed. Held, that the will was 44 Rollwagen v. Rollwagen, 3 Hun, not properly executed and published. 121 ; affd., 63 N. Y. 504. There is no exception in the statu- 45 Matter of Diez, 50 N. Y. 88. tory requirement as to the execution of 10 § 193. The Peobate of Wills. 146 will are required for the purpose of attesting and identifying the signature of the testator; and in order to do this, it is essential that they should see the testator tubscribe his name, or that, with the signature visible to them, he should acknowledge it to be his.*^ Hence, it is not enough if he presents the will already subscribed by him to the witness, and acknowledges that he has executed it as such will, declaring it to be his will and requesting him to sign, where at the same time the witness does not see the signature.*® It is a sufficient acknowledgment of his signature, if, the paper and signature being before the witnesses in plain sight, the testa- tor addresses them in words which are calculated and intended by him to give them to understand that the signature is his, and it is so understood by them, although there is no formal acknowledg- ment by the testator to the witnesses that the signature is his.*® Signing the will in the presence of one witness, subsequently acknowledging his signature to a second, and later still to a third, is sufficient.^" But, though he declare the instrument to be his will, and request the witnesses to sign, this does not dispense with the acknowledgment of his signature where the signature, was not made in the witnesses' presence.'^ The acknowledgment of the signature, and the publication of the will, by acknowledgment, may constitute one and the same act.^^ It is a fatal objection if one of the witnesses neither saw the testator subscribe, nor heard wills in favor of holographic instru- that deceased came into a store where ments. (Matter of Turell, 166 N. Y. two persons were, produced a paper 330; 59 N. E. 910.) and said: " I have a paper that I want 4T Matter of Maekey, 110 N. Y. 611; you to sign." One of the persons took Matter of Laudy, 148 id. 403. the paper and saw the signature of the 48 Lewis V. Lewis, 11 N. Y. 221 ; Mat- deceased. The deceased then said: ter of Maekey, 110 id. 611; Matter "This is my will, I want you to wit- of Laudy, 148 id. 403 ; Mitchell v. ness it." Both persons thereupon Mitchell, 16 Him, 97 ; affd., 77 N. Y. signed the paper as witnesses under 596; Matter of Purdy, 46 App. Div. the attestation clause. The deceased 33; 61 N. Y. Supp. 430. This, in effect, then took the paper and said: "I de- overrules Baskin v. Baskin, 36 N. Y. clare this to be my last will and testa- 416; Willis v. Mott, id. 486; Eudden ment," and delivered it to one of the V. McDonald, 1 Bradf. 352. See Ver- witnesses for safe-keeping. At the nam v. Spencer, 3 id. 16; Darling v. time when this took place the paper Arthur, 22 Hun, 84. had the name of the deceased at the 49 Matter of Austin, 45 Hun, 1 ; Mat- end thereof. Held, no sufficient signing ter of Laudy, 161 N. Y. 429; Matter of the will by the deceased in the pres- of Lang, 9 Misc. 521; 30 N. Y. Supp. ence of the witnesses, nor a sufficient 388 ; Matter of Stockwell, 17 Misc. acknowledgment to them that he had 108 ; 40 N. Y. Supp. 734. done so. ooHoysradt v. Kingman, 22 N. Y. 52 Baskin v. Baskin, 36 N. Y. 416; 372; followed, Matter of Potter, 33 St. Matter of Phillips, 98 id. 267; Mat- Rep. 936. ter of Hunt, 42 Hun, 434; Kinne v. 51 Mitchell V. Mitchell, 16 Hun, 97; Kinne, No. 1, 2 Sup. Ot. (T. & C.) 391. affd., 77 N. Y. 596, where it appeared 147 The Peobate of Wills. §194. him acknowledge his signature.'^ Where, at the time he exhibited the instrument and told the witnesses it was his will, it was so folded that they could see no part of the writing, except the attestation clause, and they did not see the signature, it was held there was no proper acknowledgment of his signature. °* The in- tent of the requirement tliat a testator's subscription should be " made in the presence of each of the attesting witnesses," or, etc., is not simply that the testator and witnesses should be within the same inclosure, but that the latter should' either actually see the former write his name, or have their attention directed' to the act of signing while the same is taking place.^' § 194. Publication. — The testator, at the time of making such suhscription, or at the time of acknowledging the same, or both B3 Rutherford v. Rutherford, 1 Den. 33; Lewis v. Lewis, 11 N. Y. 220; Mat- ter of Higgins, 94 id. 554; Jones v. Jones, 42 Hun, 563; Rumsey v. Gold- smith, 3 Dem. 494; Matter of Aber- crombie, 24 App. Div. 407; 48 N. Y. Supp. 414; Matter of MeDougall, 87 Hun, 349 ; 34 N. Y. Supp. 302 ; Matter of Nevins, 4 Misc. 22; 24 N. Y. Supp. 838; Matter of Purdy, 46 App. Div. 33 ; 61 N. Y. Supp. 430. See Matter of Rustin, 45 Hun, 1. B4 Lewis V. Lewis, supra; Matter of Maekay, 110 N. Y. 611; disapproving a dictum in Willis v. Mott, 36 id. 486, 491, thai) testator was not required to exhibit his signature. In Mat- ter of Losee (13 Misc. 298; 34 N. Y. Supp. 1120), the will was signed by the testatrix in the presence of two witnesstes, one of whom was unable to see to write, and at her request the other witness signed the name of both. It appeared that the first-named wit- ness was unable to see testatrix's sig- nature or to distinguish whether there was ink on the pen with which shte wrote, and on the hearing could not distinguish the writing on the paper produced or identify it. Held, that there was no valid e'xeeution of the in- strument, as there: was but one attest- ing witness. A statement that it is a will, or that " I have made my will ; I want you to sign it," made upon exhibition of an apparently blank paper, is not an acknowledgment of a subscription thereto. (Matter of Eakins, 13 Misc. 557; 35 N. Y. Supp. 489.) 85 Gardiner v. Raines, 3 Dem. 98. In Spaulding v. Gibbons (5 Redf. 316), one witness testified that testator signed in the presence of both witnesses, before they affixed their signatures, and declared the paper to be his last will. The other witness did not re- member whether he saw testator sign or not, but the evidence showed that he was, at the time, either in the same room or in an adjoining room, in such a position that he could see the signing after his attention was drawn to what was going on. Held, that testator must be considered to have signed in the presence of each subscribing witness. In Matter of Look (26 St. Rep. 745 ; 7 N. Y. Supp. 298) testatrix signed her will in the presence of one witness, and, in the presence of both, declared it to be her will, and they signed as witnesses, at her request. One of them testified that she did not see the signa- ture of the testatrix which was within the field of her vision as she signed as witness. Held, a sufficient acknowl- edgment of the subscription to comply with the statute. The statutory for- malities being observed, the valid exe- cution of the will does not depend upon the correctness of the vision or the de- gree of attention of the witness any more than upon the retentiveness of his memory. See, a peculiar ease. Mat- ter of Van Houten, 15 Misc. 196, where it was said that proof that the wit- nesses saw the pen moving over the paper and heard it make a scratching noise was sufficient to show that the signature was made m their presence: it is not necessary that they should see the mark it made or its actual contact with the paper. § 194. The Pbobate of Wills. 148 — if subscribed in the presence of one and achnowledged after subscription to the other — must declare in the presence of each witness that the instrument is his will. The object of this pro- vision is to secure the testator against fraud and imposition, and the knowledge that the instrument which the witnesses are called upon to attest is a will, must he comm.unicated to them by the testator at the time of his subscription or acknowledgment; and knowledge derived from any other source, or at any other time, of the same fact, cannot stand as a substitute for the declaration of the testator. The declaration or publication of the will must be made out substantially the same as the subscription or the acknowledgment thereof.''^ Where the witnesses had been sent for to witness the testator's will, and went for that purpose, but had no other information that they were witnessing his will, the publication was held insufficient.^^ The testator must in some manner communicate to the attesting witnesses, at the time they are called to sign as witnesses, the information that the instrument then present is of a testamentary character, and that he then recognizes it as his will, and intends to give it effect as such. Producing the will already subscribed, but folded, so as to conceal the subscription, and acknowledging it as a " free will and deed," are not enough.^* 56 Scribner v. Crane, 2 Paige, 147 ; Testator, after reading the will and Gilbert v. Knox, 52 N. Y. 125, and signing it in the presence of the wit- cases infra. " When the testator pro- nesses, handed it to one of them with duces a paper to which he has person- the request that he read the attesta- ally aflRxed his signature, requests the tion clause and sign it; direct request witnesses to attest it, and declares it to was made to the other, who had drawn be his last will and testament, he does the will. Held, a suflBcient publication all that the law requires. It is enough and request to both witnesses. (Mat- that he verifies the subscription as au- ter of Woolsey, 17 Misc. 547 ; 41 N. Y. thentic, without reference to the form Supp. 263.) in which the acknowledgment is made." B7 Bagley v. Blackman, 2 Lans. 41 ; (Per Porter, J., in Baskin v. Baskin, Matter of Chandler, N. Y. Law J., May 36 N. Y. 416.) In that case, 22,1891. In Matter of Dickson ( N. Y. after the testator had signed his Law J., Jan. 16, 1892), the will was in will, in the presence of one of the testator's handwriting, and had a de- attesting witnesses, the other witness claratory clause at the beginning, stat- was called in and asked by the testator ing it to be his will. He called his to sign it. The witness saw that the nephew and niece into his presence, testator's signature was already at- produced the paper, substantially ac- tached ; and the testator, with the will knowledged his signature at the end of in his hand, in the presence of both it, and requested them to sign as wit- witnesses, declared it to be his last will nesses. He did not inform them that and testament, and the second witness it was a, will, but from the circum- then subscribed the attestation clause, stances occurring about that time, they which stated that the will was signed inferred that it was. Probate was de- and published in the presence of the nied. attesting witnesses. Held, a good pub- 58 Lewis v. Lewis, 11 N. Y. 220; lication. See Matter of Carey, 24 App. Rutherford v. Rutherford, 1 Den. 33 ; Div. 531; 49 N. Y. Supp. 32. Walsh v. Laflfan, 2 Dem. 498; Porteus 149 The Probate of Wills. § 195. . § 195. The declaration must be unequivocal. — Accordingly, when the decedent, in response to questions, stated that she did not know as she could say that it was her last will, — that it was the last she had made then, the proof of publication was held de- fective.^® It is not essential that the publication, any more than the other facts involved in the execution, should be made by ex- press words of the testator;^" or on the same occasion, or when both witnesses are present.^^ A substantial compliance with the statute is sufficient.®^ It may be incorporated with the req^iest to the witnesses to attest;®^ and both may be made by means of questions put to the testator and his affirmative response ;®* and such response may even be made by nodding the head.^ Where V. Holm, 4 id. 14. In Larabee v. Bal- a will, and not from anything which lard (1 Dem. 496), it appeared that, she stated." Probate denied, after the scrivener had completed the 59 Kingsley v. Blanchard, 66 Barb, draft, decedent requested him to sign 317. decedent's name thereto " ■per W. K.," 60 Lane v. Lane, 95 N. Y. 494; Nelson which he did. While engaged in draft- v. McGiffert, 3 Barb. Ch. 158. See ing the instrument, the decedent asked Seguine v. Seguine, 2 Barb. 385; Reeve him whether he could witness it with- v. Crosby, 3 Redf. 74; Gilbert v. Knox, out calling any one else, whereto the 52 N. Y. 125 ; Thompson v. Leastedt, 3 scrivener assented. Afterward, dece- Hun, 395; aflFd., 62 N. Y. 634; Eugg v. dent went into a store and asked B., Rugg, 83 id. 592; Back v. Back, 84 who was there, to witness an alteration id. 663; Matter of Pepoon, 91 id. 255; in his will. Decedent and B. then went Matter of Hardenburg, 85 Hun, 580 ; into the office where the scrivener was, 33 N. Y. Supp. 150. with- the instrument. B. thereupon 61 Hoysradt v. Kingman, 22 N. Y. asked decedent if he acknowledged that 372 ; Willis v. Mott, 36 id. 486 ; Neu- to he his work, to which decedent as- gent v. Neugent, 2 Redf. 369; Barry sented. Held, not a sufficient declara- v. Brown, 2 Dem. 309; Matter of Por- tion by testator of the character of the man, 54 Barb. 274. instrument. In Matter of Turrell (28 82 Lane v. Lane, supra; Matter of Misc. 106), the will was referred to Voorhis, 125 N. Y. 765; 36 St. Rep. as a "document," although the wit- 173. See § 190, ante. nesses surmised that they were wit- ssRieben v. Hicks, 3 Bradf. 353; nessing a will. Held, insufficient. Belding v. Leichardt, 2 Sup. Ct. (T. & In Matter of Oldham (N. Y. Law J., C.) 52; Kinne v. Kinne, id. 391; Dack Dec. 10, 1890), the testatrix neither v. Dack, 19 Hun, 630; Matter of Mur- directly nor by implication declared phy, 15 Misc. 208. the paper to be a will, but stated, in a 64 Tunison v. Tunison, 4 Bradf. 138; jesting way, that it was her death Gombault v. Public Adm'r, 4 Bradf. warrant. At the time, she did not pre- 226 ; Whitbeck v. Patterson, 10 Barb, sent the paper in a form by which her 608; Reeve v. Crosby, 3 Redf. 74; Mat- signature could be seen by the wit- ter of Murphy, 15 Misc. 208; 37 N. Y. nesses, but tolded it so as to conceal it Supp. 223; Matter of Seagrist, 11 Misc. from their sight, if it had been affixed. 188 : 1 App. Div. 615; Matter of Menge, "Though it has a full attestation 13 Misc. 553; 35 N. Y. Supp. 493. A clause, it having been executed in response by the testatrix, to whom the March, 1888, the date is too recent to will was read in the presence of the aid the proponent who seeks its pro- subscribing witnesses, " It is all right," bate, especially as the recitals in re- is a sufficient publication. (Matter of spect to the decedent's signing of the Buel, 44 App. Div. 4. ) paper, .and the declaration of its char- S5 Belding v. Leichardt, 56 N. Y. 680; acter are expressly denied by the posi- Smith v. Smith, 2 Lans. 266 ; Brown v. five statements of each of the three De Selding, 4 Sandf. 10; Butler v. witnesses, who only inferred from the Benson, 1 Barb. 526. surrounding circumstances that it was § 196. The Peobate of Wills. 150 an implied declaration is relied upon, as reading the will aloud in testator's presence, proof of the state of his hearing at the time is proper.^'' The words of acknowledgment may proceed from another, and will be regarded as those of the testator, if the cir- cumstances show that he adopted them, and that the person speak- ing them was acting for him with his assent.®^ In that case, the declaration must be made in the presence and hearing of both testator and the witnesses, so that the latter may know that the third person's act was that of the testator. *** But the testator must declare, or give the witnesses in some form to understand, at the time of making or acknowledging his subscription, that the instrument signed is his will f^ and that the signature is genuine. § 196. Sufficiency of proof of publication. — The execution of the will must be proved by evidence of what took place at the time the will was signed, and cannot be proved by declarations of the testator, that he had made such a will, naming the witnesses and where the will was made, etc.™ The testator's declaration made on a subsequent occasion to one of tlie witnesses, that the paper signed by him was his last will, is not sufficient,''^ although, after the proponents have made out a prima facie case, such declara- tions may be introduced as corroborative evidence in respect to the genuineness of the signature, or the freedom of the testator from undue influence, or to rebut the contestant's evidence on these points.''^ Testator's antecedent declarations axe admissible, 66McKinley v. Lamb, 64 Barb. 199. Beers, 2 Bradf. 163; Campbell v. Lo- And see Trustees of Auburn Theol. gan, id. 90; Robinson v. Smith, 13 Abb. Sem. V. Calhoun, 62 id. 381. A deaf Pr. 359; Brown v. De Selding, 4 Sandf. person may publish his will by answer- 10; Grant v. Grant, 1 Sandf. Ch. 235; ing questions put to him in writing. Rutherford v. Rutherford, 1 Den. 33 ; (Gombault v. Public Adm'r, 4 Bradf. Hunt v. Mootrie, 3 Bradf. 322; Moore 226. ) V. Moore, 2 id. 261 ; Van Hooser v. Van 67 Gilbert v. Knox, 52 N. Y. 125; Hooser, 1 Redf. 365; In re Sheridan, Burk's Will, 2 Redf. 239; Troup v. id. 447; Carle v. Underbill, 3 Bradf. Reid, 2 Dem. 471; Smith v. Smith, 2 101; Vaughan v. Burford, id. 78; Lans. 266. Yet, where the testator was Trustees of Auburn Theol. Sem. v. Cal- so feeble and exhausted that it is houn, 62 Barb. 381 ; MoKinley v. Lamb, doubtful whether he understood the 64 id. 199; Smith v. Smith, 2 Lans. declaration of a third person in his 266 ; Reeve v. Crosby, 3 Redf. 74. Mat- presence, such declaration will not ter of Smith (39 St. Rep. 698 ; 15 N. Y. alone be sufficient. (Heath v. Cole, 15 Supp. 425) was a ease where testator Hun, 100.) See Stein v. Wilzinsld, 4 could neither read nor write ; tl^e attes- Redf. 441 ; Jones v. Jones, 42 Hun, 563. tation clause, though not the body of 68 Burke v. Nolan, 1 Dem. 436. the will, was read to him. The will 69 For application of this principle was admitted to probate. in various peculiar cases, see Remsen 70 Johnson v. Hicks, 1 Lans. 150. V Brinckerhoff, 26 Wend. 325; Torry 71 Matter of Dale. 56 Hun, 169; 9 V. Bowen, 15 Barb. 304; Burritt v. Sil- N. Y. Supp. 396; aflfd., 134 N. Y. 614. liman, 16 id. 198; Nipper v. Groesbeck, 72 Taylor's Will, 10 Abb. Pr. (N. S.) 22 id. 670 ; Chaffee v. Baptist Mission- 300. ary Convention, 10 Paige, 85; Ea> p. 151 The Peobate of Wills. § 197. in connection with his indefinite declaration at the tima of the execution, in aid of proof of a sufficient publication. So the fact that testator was fully apprised of the testamentary character of the instrument, may be considered in aid of proof tending to establish a publication.^^ Hence, while holographic wills are not excepted from the terms of the statute prescribing the method of publication, in case of such a will, criticism of the terms and man- ner of what is claimed to be a sufficient publication need not be so close or severe as where the question, as to whether the testator knew that he was executing a will, depends solely upon the facts of publication.''* § 197. Republication. — A will originally inadequately published may be subsequently republished and reaffirmed by a codicil. Thus, in one case, a married woman executed in due form a codicil, which, after referring to and describing a will executed by her before marriage, contained the following clause: " I do hereby republish, reaffirm, and adopt the aforesaid instrument as my present will in like manner as if so executed by me, but modi- fied pursuant to this codicil, which, in connection with an amend- ment of my said wiU, I now publish and declare together as con- stituting my last will and testament." The will was present when the codicil was executed, and the attention of the witnesses was called to it, and the testatrix, at the time, declared the instrument T3 Matter of Hunt, 110 N. Y. 278; declaration cannot be made sufficient Thompson v. Stephens, 62 id. 634. And by proof of a previous conversation not see, generally, on the subject of due connected with the factum by the words publication. Coffin v. Coffin, 23 N. Y. of publication used, yet it will be suffi- 9; Peck v. Gary, 27 id. 9; Nexsen v. cient where they were so connected by Nexsen, 3 Abb. Ct. App. Dec. 360; the very language of the testatrix at ChaflFee v. Baptist Miss. Con., 10 Paige, the time of execution. (lb. ) Compare 85 ; Matter of Oilman, 38 Barb. 364 ; Buekhout v. Fisher, 4 Dem. 277, where Gamble v. Gamble, 39 Barb. 373; Doe it was held, in a case of a holographic v. Roe, 2 id. 200 ; Hutchings v. Coch- will, that in the absence of direct testi- rane, 2 Bradf. 295; McDonough v. mony as to the fact, and in case of Loughlin, 20 Barb. 238; Hollenbeck v. failure of recollection on the part of Van Valkenburgh, 5 How. Pr. 281; the witnesses, as to whether the will Hunn V. Case, 1 Eedf . 307 ; Heath v. was signed by the testator before such Cole, 15 Hun, 100; Van Hooser v. Van presentation and declaration, the court Hooser, 1 Eedf. 365 ; Von Hoffman v. may consider the internal evidence af- Ward, 4 id. 244. See § 203, post. forded by the examination of the paper 74 Matter of Carey, 24 App. Div. 531 ; itself, in determining such fact. To the Matter of Beckett, 103 N. Y. 167. In same effect. Matter of Cottrell, 95 that case testatrix, at the time of exe- N. Y. 329 ; Matter of Wilcox, 37 St. cuting her will, simply referred to it, Rep. 462; 14 N. Y. Supp. 109; Matter in addressing the witnesses, as a paper, of Stillman, 29 St. Rep. 213; 9 N. Y. but at the same time connected such ex- Supp. 446. But see Matter of Turrell, pression with previous conversations 28 Misc. 106, where the will was re- had with the witnesses regarding a ferred to as a " document," a declara- will. Held, sufficient. Although it tion held to be insufficient, although may be that an imperfect and indefinite the will was holographic. § 198. The Peobate oe Wills. 152 to be " a codicil to her last "will and testament, and a reaffirmation of the latter." It was held that the execution of the codicil was a republication of the will, and that it and the codicil together were to be considered as the will of the testatrix.''^ So where a will has been formally revoked by a subsequent will, but not destroyed, it may be revived by the execution of a codicil,™ or by destruction of an instrument intended only as a modification thereof .^^ 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 vsdll.^^ § 198. Attestation by witness. — Each of the two attesting wit- nesseSj at leasts must siqn his name as a witness at the end ™ of the will at the request of the testator. Their signatures may be made by mark f'^ or by the aid of another f^ but the witness must sign with intention to be such. One who writes the name of another person as witness, not iatendiag to attest the will himself, and not writing his own name, cannot be deemed a witness.^^ Though the statute requires the witnesses to subscribe at the end of the will, yet where, by mistake, the attestation clause and witnesses' signa- tures were written on an intermediate blank page, the execution was sustained.®^ The witnesses must sign after the will has been ^5 Van Cortlandt v. Kip, 1 Hill, 590 ; same proof to establish a republication Brown v. Clark, 77 N. Y. 369; affg. 16 of a will as are plainly required to es- Hun, 559, which reversed s. c, Proc- tablish its original publication, and tor V. Clarke, 3 Redf. 445. See note hence, that a will which has been re- to this case, 1 Am. Prob. Rep. 517 ; voked can be revived only by its re- Masters' Estate, 1 Civ. Proc. Eep. 459 ; publication in the presence of its at- Mattcr of Nisbet, 5 Dem. 286; Matter testing witnesses." See § 230, post. of Miller, 11 App. Div. 337; affd., 161 T9 Matter of Dayger, 47 Hun, 127; N. Y. 71; Cook v. White, 43 App. Div. 110 N. Y. 666. See § 190, ante. 388; 60 N. Y. Supp. 153; afifd., 167 soMeehan v. Eourke, 2 Bradf. 385; N. Y. 588. Morris v. Kniffin, 37 Barb. 336. 76 Matter of Knapp, 51 St. Eep. 517, 81 Campbell v. Logan, 2 Bradf. 90. 23 N. Y. Supp. 282. One witness may, in addition to his TT Matter of Johnston, 69 Hun, 157 ; own signature, sign the name of the 23 N. Y. Supp. 355. In Matter of other, at the latter's request. (Matter Trost (38 Misc. 404), the testator had of Strong, 39 St. Eep. 852.) made two wills, and later executed a 82 Ecc p. Leroy, 3 Bradf. 227. codicil which was written on the back 8S Hitchcock v. Thompson, 6 Hun, of the first will. The codicil did not 279; revg. Heady's Will, 15 Abb. Pr. refer to either will, or by its terms (N. S.) 211; Matter of Singer, 19 republish either of them, — held in- Misc. 679; 44 N. Y. Supp. 606. sufficient as a republication of the first Althovigh the attestation clause is will. carried entirely across the face of the T8 Matter of Stickney, 161 N. Y. 42. will and separates the signature of the In that case, the court said: " We are testator from that of the witnesses, the of the opinion that it was the intent of oxeeution is sufficient. CMatter of the Legislature by this statute to re- Beck, 6 App. Div. 211; 39 N. Y. Supp. quire the same formalities and the 810; affd., 154 N. Y. 750.) 153 The Peobate of Wills. §198. subscribed by the testator.^ The signatures of the attesting "wit- ifesses need not, however, immediately follow that of the testator; the attestation clause may intervene,^ but nothing more.®'' It is not essential that the attesting witnesses should each subscribe in the presence of the other. As has already been obser\'ed, the testator may sign in the presence of one witness, and afterward acknowledge the execution to another witness. ISTor is it neces- sary that the attesting witnesses sign literally in the presence of the testator.®^ If they sign at his request, although in an adjoin- ing hall out of his sight (which, according to the English cases, is not in his presence), it is suificient, though their signing must be done at the time of the execution or acknowledgment, and with the knowledge and request of the testator. ®® The request to sign as witnesses may be presumed, as where two persons are called in to witness the paper, which they do, in the presence of the testator, he at the same time subscribing it, and declaring that it is his last will and testament.*^ And the reading 8* Rugg V. Kugg, 21 Hun, 383 ; 83 N. Y. 592. See Matter of Purdy, 46 App. Div. 33. 85 Williamson v. Williamson, 2 Redf . 449. 88 In Matter of Hewitt (91 N. Y. 261), the will was written upon two sides of the pager ; the subscribing wit- nesses signed their names at the bot- tom of the first side, and again at the top of the second side, following which was an important provision of the will. Held, that the witnesses did not sign their names at the end of the will. In Matter of Case (4 Dem. 124), the will contained disposing clauses signed by the testatrix, followed by an attesta- tion clause, signed by the witnesses, and thereafter a clause nominating an executor, and a secotid subscription by the testatrix but not by the witnesses, and it appeared that the whole of the writing was made before there was a signing by any person. Held, that the witnesses did not sign their names at the end of the instrument. In Matter of Blair (84 Hun, 581; 32 N. Y. Supp. 845; aflfd., 152 N. Y. 645), a clause was added, after the attestation clause, just prior to execution of the will, which was signed and sealed by tes- tator after the testimonium clause and also after the added clause, while the witnesses signed only after the attes- tation clause. Probate was refused. To the same efEect, Matter of Albert, 38 Misc. 61. In Matter of Nies (13 St. Rep. 756), testator signed at the end of the first clause of the will; then followed a second clause, ap- pointing an executor, followed by the attestation clause, at the foot of which the witnesses signed. Probate was de- nied. The presence of a memorandum of erasures and interlineations, at the end of the attestation clause, is not to be regarded. (McDonough v. Lough- lin, 20 Barb. 238.) STRuddon V. ileDonald, 1 Bradf. 352; Jackson v. Christman, 4 Wend. 277 ; Neugent v. Neugent, 2 Redf. 369 ; Herriek v. Snyder, 27 Misc. 462; 59 N. Y. Supp. 229; Matter of Phillips, 34 Misc. 442; 69 N. Y. Supp. 1011. 88 Lyon V. Smith, 11 Barb. 124; Spaulding v. Gibbons, 5 Redf. 316. But where witnesses to a will signed it out of the presence of the testatrix, and thereafter one of them brought it back and gave it to her, and the testa- trix did not acknowledge to either of them that it was her will, or request one of the witnesses to sign the same, the execution was insufficient to estab- lish the will. (Matter of Kivlin's Will, 37 Misc. 187; 74 N. Y. S. 937.) 89 Butler v. Benson, 1 Barb. 526. And see Doe v. Roe, 2 id. 200; Brown v. De Selding, 4 Sandf. 10; Hutchings V. Cochrane, 2 Bradf. 295. Compare Matter of Kauze, N. Y. Law J., April 21, 1893. In Brady v. McCrosson (5 §§ 199, 200. The Peobate of Wills. 154 of the attestation clause in the testator's presence, subsequently to the witnesses signing, stating that they signed at his request, without objection from him, may be regarded as an adoption of a request to that effect.^* A request to only one witness to sign is not enough; at least without constructive request to the other.®' Where there are three witnesses, at least two of them must act in compliance with the statute.®^ But it should be observed that, although the statute declares that each mtness must sign at the testator's request, it does not prescribe the manner and form in which the request must be made. ~So precise form of words, addressed to each of the witnesses at the very time of the attesta- tion, is required. Any communication importing such request, addressed to one of the witnesses, in the presence of the other, and which, by a just construction of all the circumstances, is intended for both, is sufficient.®^ § 199. Sequence of acts of execution, etc. — The order in which the formal acts of execution and publication prescribed by the statute should be done, is not imperative, except that the attesta- tion by the signing of the witnesses must be after the testator's execution.®* If the testator subscribes after the witnesses sign, he must subsequently acknowledge his subscription in their presence.®^ § 200. Witnesses' additions. — The validity of the will is not affected by the omission of witnesses to affix their residences to Eedf. 431), the decedent requested A. mission, is sufficient. (Matter ofMc- to ask a scrivener to come and draw Graw, 9 App. Div. 372 ; 41 N. Y. Supp. his will, at the same time stating that 481; Matter of Nelson, 141 N. Y. 152; he wished A. to be a witness. On a 56 St. Eep. 678.) Not so, however, subsequent day, — that of the execu- where he is shown to have been under tion, — A. and another signed as sub- the influence of opiates at the time, scribing witnesses in decedent's pres- (Matter of Lyman, 14 Misc. 352; 36 ence, after the will had been read in N. Y. Supp. 117.) their presence, nothing further being 9* Jackson v. Jackson, 39 N. Y. 153; said to A. about signing, but the other Rugg v. Rugg, 21 Hun, 383. witness being duly requested. Held 95 Sisters of St. Vincent, etc. v. a sufficient request to A. Kelly, 67 N. Y. 409 ; Lyman v. Phillips, 90 Stewart's Will, 2 Eedf. 77. And 3 Dem. 459 ; Matter of Phillips, 98 see Smith v. Smith, 40 How. Pr. 318. N. Y. 267. Where a will was subscribed 91 Eutherf ord v. Eutherf ord, 1 Den. by the testatrix in the presence of the 33. witnesses, and was declared by her to 92 Lyon V. Smith, 1 1 Barb. 124 ; Car- be her will, and they subsequently roll V. Norton, 3 Bradf. 291 ; Hoysradt signed in her presence and at her re- V. Kingman, 22 N. Y. 372. quest, although the declaration and re- 83 Coffin V. Coffin, 23 N. Y. 9 ; Peck quest were made before testatrix A-. Cary, 27 id. 9 ; Gilbert v. Knox, 52 signed. Held, that the will was prop- id. 125. Thus a request to witnesses erly executed. (Matter of Williams, 2 to sign a will made by one superin- Connoly, 579; affd., 19 N. Y. Supp. tending its execution in the hearing of 778.) the testator and with his silent per- 155 The Pkobate of Wills. § 201. their signatures, as required by the statute,®* or by the omission of any person -who signs the testator's name by his direction, to write his own name as a witness ; but the statute imposes a penalty for omission so to do.®^ § 201. Proof of observance of requisite formalities. — It is not essential that each subscribing witness should be able to testify that all the formalities required by law were complied with.®^ Where the witnesses are dead, or, from lapse of time, do not re- member the circumstances attending the attestation, if there are no circumstances of suspicion, and all the evidence then existing has been produced, a proper execution of the will may be pre- sumed, particularly where the attestation clause is fuU,®^ and even though there be no attestation clause at all.-' Indeed, a will may be admitted to probate (both the witnesses being dead) notwith- standing proof of declarations by one of them tO' the effect that 98 2 E. S. 63, § 41 ; Matter of Phil- " If the recollection of both wit- lips, 98 N. Y. 267. nesses fail, the will may be admitted on 97 See Dodge v. Cornelius, 168 N. Y. testimony of others who can recall the 242. facta, and even by the recitals in a 98 Jauncey v. Thome, 2 Barb. Ch. 40 ; full attestation clause, where there has Weir V. Fitzgerald, 2 Bradf. 42; New- been a considerable lapse of time be- house V. Godwin, 17 Barb. 236 ; Matter tween the date of the instrument and of Graham, 30 St. Rep. 292 ; 9 N. Y. the examination of the witnesses. And Supp. 122; Matter of Hardenburg, 8.5 where both witnesses are dead, and no Hun, 580; 33 N. Y. Supp. 150, and living person can testify to the facta cases infra. Evidence as to the publi- that took place at the execution of the cation and other formalities of execu- will, proof of the handwriting of the tion by illiterate testatrix was consid- signatures of the testator and the wit- ered, sustaining probate, in Matter of nesses, with the recitals in a full at- Voorhis, 27 St. Rep. 368 ; 7 N. Y. Supp. testation clause, will suffice. The law 596 ; motion for reargument denied in is thus liberal that the intentions of a 9 id. 201; 30 St. Rep. 620; aflfd., 12.5 testator may not be frustrated by the N. Y. 765 ; and in Matter of Bedell, 32 accident of death or the infirmities of St. Rep. 1022. memory, when, for want of better 99 Butler V. Benson, 1 Barb. 526 ; proof, the court is satisfied that the Matter of Pepoon, 91 N. Y. 255; Mat- paper was executed in good faith as a ter of Sears, 33 Misc. 141; 68 N. Y. testamentary instrument." (Per Ran- Supp. 363 ; Matter of Brissell, 16 App. som, S., in Matter of Wilt, N. Y. Law Div. 137; 45 N. Y. Supp. 122. To the J., Nov. 25, 1891.) same effect, see Cheeney v. Arnold, 18 1 Matter of Briggs, 47 App. Div. 47; Barb. 434 ; Nelson v. McGiffert, 3 Barb. 62 N. Y. Supp. 294. In that case the Ch. 158 ; Hunn v. Case, 1 Redf . 307 ; will offered for probate was wholly in Van Hooser v. Van Hooser, id. 365; the testator's handwriting and con- Moore v. Griswold, id. 388. And see tained no attestation clause; the sig- Lawrence v. Norton, 45 Barb. 448 ; natures of the testator, and of the sub- Rider V. Legg, 51 Barb. 260; Matter of scribing witnesses, who were dead, were Kellum, 52 N. Y. 517; Sarvent v. Hes- proved, as was the fact that the will dra, 5 Redf. 47 ; Matter of Frey, 26 St. was found among testator's papers, Rep. 425; 7 N. Y. Supp. 330; Matter and a notary, a friend of the testator, of Sanderson, 9 Misc. 574; 30 N. Y. testified that in 1890 the latter Supp. 848; Matter of Klett, 3 Misc. brought the paper to the office of the 385; 24 N. Y. Supp. 721; Matter of witness, stated it was his will, and De Haas, 19 App. Div. 266; 46 N. Y. asked the witness to "freshen it up," Supp. 189. since it was made so long before that it § 202. The Probate oi? Wills. 156 the will was a forgery, and that he had fabricated it.^ But where the will was only recently executed, the presumption is not so strong, and in one case, where not more than three months had intervened between the execution of the will and the application for probate, and neither of the mtnesses could remember any testamentary declaration, it was held that due execution of the will could not be presumed, and probate was refused.^ § 202. Will signed by mark. — Some difficulty has been en- countered in applying to cases of wills signed by a mark, the pro- vision of the statute that in case of the death, absence, or dis- ability of one or all the subscribing witnesses, " the will may nevertheless be established upon proof of the handwriting of the testator and of the subscribing witnesses, and also of such cir- cumstances as would be sufficient," * and upon this question the decisions of the different Surrogates' Courts are not in harmony. It has now been decided, however, by the appellate court, that a will signed by a mark may be admitted to probate upon proof of the formal requisites by one witness, the other being dead.^ might be supposed that a later will statute requires the testator to either existed; told the witness the eireum- sign in the witness's presence, or stances of its execution, which corre- acknowledge his signature, and to sponded with the legal requirements, prove the will the witness must testify desired the witness to sign it as wit- to either one or the other of such requi- ness, or take the testator's aeknowledg- sites, either of which would be proof ment, whereupon an acknowledgment of the handwriting of the deceased; was drawn by witness which the testa- that, hence, when the statute prescribes tor signed and swore to before him, — proof must be made of the handwriting Held, that the proof of execution was of the testator, some further evidence, sufficient. or evidence of further witnesses, is re- 2 Matter of Hesdra, 119 N. Y. 615; quired. If the section cited referred 28 St. Rep. 810. In Matter of Kane only to the cases where some attesting (2 Connoly, 249), a will containing a witness survived or could be produced, full attestation clause was admitted to there would be great force in this ob- probate, notwithstanding testimony of jection. But the provision of the Code surviving subscribing witness that he is general, and applies to cases where signed before testatrix. See Matter of the testimony of no attesting witness Menge, 13 Misc. 553 ; 35 N. Y. Supp. can be obtained. We think that we are 493. not warranted in limiting the provi- 3 Wilson v. Hetterick, 2 Bradf. 427. sions of this section to the proof of 4 Co. Civ. Proc, § 2620. handwriting by others than the attest- 5 Matter of Wilson, 76 Hun, 1 ; 27 ing witnesses. It is possible to imagine N. Y. Supp. 957, overruling Matter of cases where our construction would Walsh, 1 Tuck. 132, and Matter of Eey- perhaps render fraud more easy, but nolds, 4 Dem. 68, and approving Mat- such a danger is more imaginary than ter of Dockstader, 6 id. 106; Matter real. On the other hand, to uphold the of Hyland, 27 N. Y. Supp. 961; Matter rule laid down by the surrogate will of Kane, 20 id. 123. See also Matter cause many properly executed wills to of Murphy, 15 Misc. 208; 37 N. Y. fail without any fault or neglect on Supp. 223. In the Wilson case the testator's part. The current of (supra) the court said: "The only practice and authority being against objection to the sufficiency of proof that rule, we thinlc that it should not by a single surviving attesting wit- be upheld." ness is, that in every case the In the absence of evidence that tes- 157 The Probate of Wills. § 203. Il; is obvious that " the circumstances which would be sufficient to prove the will," including the making of the mark, are prov- able by any persons who were present at the time of the execu- tion, and this has been held to be sufficient.® But where no per- sons, other than the witnesses, were present, or if present, are not producible, and only one of the subscribing witnesses is alive or producible, then (as the testator had no handwriting), " the cir- cumstances," except as proved by the surviving witness, may be difficult to discover. The recitals of a full attestation clause con- stitute a prime factor in the proof of the circumstances they relate;^ the books of the deceased subscribing witness showing a receipt of money for drawing the will, the fact that the will, on its face, is a natural one, that it is intelligently drawn and couched in the language of the law appropriate to such documents, all aid to prove the factum, and, taken in connection with the unim- peached testimony of the surviving witness, should be " sufficient to prove the will." * § 203. Recitals in attestation clause as proof. — The attestation clause, so called, under which the witnesses sign, if it recites fully the observance of the several formalities of signing, publication, request, and witnessing, may be, and in some cases is, an essential factor in the proponent's proof — that is, it may, by the presump- tion it raises, supply the want of testimony by a subscribing wit- ness who has since died, or who is out of the jurisdiction, or after a lapse of time, it may supply the witness's want of memory of the transaction.® Even after the lapse of a period of less than four months from the execution of the will, probate has been granted on the recitals in the attestation clause, when one of the witnesses could not be produced, and the other was not positive whether or not testator signed before the witnesses signed.-"' In the absence of an attestation clause there is never a presiumption tator actually made the mark offered requisite formalities were observed, as the signature to the will, one wit- was sufficient proof, ness having died and the other not 9 Brown v. Clark, 77 N. Y. 369 ; Mat- having seen the mark made, — Held, ter of Klett, 3 Misc. 385 ; Matter of that probate must be denied. (Matter Carey, 14 id. 486; 36 N. Y. Supp. 817; of Porter, 1 Misc. 262; 22 N. Y. Supp. afld., 24 App. Div. 531; Matter of 1062.) Schweigert, 17 Misc. 186; 40 N. Y. c Simpson's Will, 2 Redf. 29. Supp. 979; Matter of Menge, 13 Misc TSee § 203, post. 553; 35 N. Y. Supp. 493, and cases 8 In Matter of Dockstader (6 Dem. infra. 106; 19 St. Rep. 245), the testimony 10 Matter of Harkins, N. Y. Law J., of a sole surviving witness that she May 20, 1892. Compare Matter of Old- signed the testatrix's name and saw ham, N. Y. Law J., Dec. 10, 1890 ; ante, her make her mark, and that the other § 194, note 58. §203. The Peobate of Wills. 158 of due execution, publication, etc. ;^^ on the other hand the want of such clause creates no presumption against the fact of due execution.-'^ Standing alone, it can hardly be said to be evidence of the truth of its recitals ;^^ in connection with oral testimony, weight will be given it, according to the circumstances of the case.-^* But it is settled that, notwithstanding a lapse of time — say a year after its execution — any presumption in favor of the truth of the recitals is destroyed by the testimony of the witnesses themselves on the trial, in contradiction thereof,''^ and an untrue recital materially affects its value. "'^ Where there is a full and complete attestation clause, properly signed, the will may be ad- mitted, even against the direct testimony of the sole surviving witness ;" but where, for example, the publication of the will was 11 Dodworth v. Crow, 1 Dem. 256. 12 Leaycraft v. Simmons, 3 Bradf . 35. See Chaffee v. Baptist Miss. Conv., 10 Paige, 85; Matter of Burk, 2 Eedf. 239; Matter of Crane, 68 App. Div. 355 ; 74 N. Y. Supp. 88. 13 Matter of Look, 26 St. Kep. 745; 7 N. Y. Supp. 298; Matter of Delprat, 27 Misc. 355. 1* See, generally, Morris v. Porter, 52 How. Pr. 1 ; Hunn v. Case, 1 Redf . 307 ; Van Hooser v. Van Hooser, id. 365. 15 Woolley V. Woolley, 95 N. Y. 231 ; Matter of Higgins, 94 id. 554; Burke V. Nolan, 1 Dem. 436 ; Rumsey v. Gold- smith, 3 id. 494; Matter of Dale, 56 Hun, 169; affd., 134 N. Y. 614; Rutherford v. Rutherford, 1 Den. 33; Matter of Gibhardi, N. Y. Law J., Nov. 14, 1890. See contra, Matter of Van Houten, 15 Misc. 196. 18 Matter of Turrell, 28 Misc. 106; 59 N. Y. Supp. 780. 17 Matter of Bernsee, 141 N. Y. 389 ; 57 St. Rep. 601. In Matter of Cottrell (95 N. Y. 329), there was an attesta- tion clause in due form, signed by a, man and wife with whom the testator had boarded. Both witnesses testified that none of the formalities required by law were complied with in their presence, and they denied that either was present at the execution or signed the attestation clause. Yet the will was sustained, it being shown that both the will and the signature at its end were in the handwriting of the testa- tor, that during his sickness he had said that his will, which he described as executed with the two witnesses as present, was either among his papers or in the hands of his executor, and it was, in fact, found among his papers. Though the will was in his own hand- writing, it was proven that it had been more or less copied from a previous will. It was also shown to the satis- faction of the court, by the opinions of experts who had made a comparison of the signatures of the witnesses to the attestation clause, with others admit- ted to be theirs; that they were identi- cal. The court said : " It was always considered to afford a strong presump- tion of compliance with the require- ments of the statute in relation to the execution of wills, that they had been conducted under the supervision of ex- perienced persons, familiar not only with the forms required by law, but also with the importance of a strict adherence thereto." In Orser v. Orser (24 N. Y. 51)^ a will was attested by two witnesses, one of whom was dead, and the other testi- fied that the will was not signed, or the signature thereto acknowledged in his presence, and that it was not de- clared by the testator to be his will. The attestation clause recited a perfect compliance with the provisions of . the statute; and the signatures of the tes- tator and the deceased witness were shown to be genuine. The deceased witness was in the habit of drawing wills, and was familiar with the requi- sites to due execution, and the certifi- cate or attestation clause was in his handwriting. On the other hand, the witness who was sworn had never been called upon to witness a will, and Icnew nothing of the formalities required. Held, sufficient to sustain a verdict that the will was duly executed. In 159 The Probate of Wills. §204. not recited, though the will was holographic, and the only sub- scribiag witness who was called to testify could not recollect that anything was said by the testator by which witness could infer that the paper was a will, though many years had elapsed, probate was denied.^* In another case, however, where the attestation clause did not state that the witnesses signed at the request of the testator, and the surviving witness testified that he signed at the request of the other (deceased) witness, and not at that of testator, though in his presence, and it appeared that both the testator and the deceased witness who drew the will were experienced lawyers, it was held that the presumption was in favor of the due observ ance of all the formalities and that probate was rightly granted.^® § 204. Weight of evidence of subscribing witnesses.— The testi- mony of the subscribing witnesses has no controlling effect, and may be rebiitted by other evidence, either direct or circumstantial ; although, on account of their direct participation in the trans- action, their testimony has great weight.^ Indeed they may be contradicted, and the will sustained even in opposition to the Matter of Pepoon (91 N. Y. 255), the witnesses (the attestation clause being in due form, and the will executed more than fourteen years before the death of the testatrix) testified in sub- stance that they had not a clear recol- lection of what occurred at the time of the execution ; that they must have read or heard read and understood the purport of the attestation clause, as they never signed any document with- out knowing its contents, and that they would not have signed if the facts stated in said clause had not occurred. One of them also testified that the sig- natures of the testatrix and two wit- nesses were made in the presence of each other, and that he recollected that said clause was read or that he heard it read. It was held that the evidence justified the probate of the will. In Peebles v. Case (2 Bradf. 226), two wills, bearing the same date, and purporting to be attested by the same witnesses, were pronounded. The wit- nesses testified to the execution of one, and disclaimed all knowledge of the other; and yet, upon proof of their handwriting, and that of the testator, and proofs by memoranda of the testa- tor, and otherwise, it was held that the latter was established as the will. See Lane v. Lane. 95 N. Y. 494 : Taylor v. Brodhead, 5 Redf. 624; Milligan v. Al- len, 18 Week. Pig. 485; Matter of Rounds, 7 St. Rep. 730; Rolla v. Wright, 2 Dem. 482; Matter of Kane, 2 Connoly, 249. 18 Matter of Pennevet, N. Y. Law J., Feb. 23, 1893. 19 Matter of Nelson, 141 N. Y. 152; 56 St. Rep. 678. 20Orser v. Orser, 24 N. Y. 51. The testimony of persons who were acci- dentally present at the execution of a will is not entitled to the same weight as that of the subscribing witnesses. (Matter of Higgins, 94 N. Y. 554 ; Humphreys' Estate, 1 Tuck. 142.) Such third persons are com- petent to corroborate the testimony of one of the subscribing witnesses. (Matter of Bernsee, 45 St. Rep. 11; 17 N. Y. Supp. 669. ) Failure to call such witness on the part of the proponents when the subscribing witnesses contra- dieted each other in almost every par- ticular, — Held, to discredit the sub- scribing witness whose testimony pro- ponents relied on, and to strengthen the presumption that the testimony of the other subscribing witness was true, (lb.) See Matter of Fitzgerald, 33 Misc. 325, where probate was granted upon the testimony of a third person (legatee) in opposition to both sub- scribing witnesses. §204. The Peobate of Wills. 160 positive testimony of one or more of the subscribing witnesses, who, either mistakenly or corruptly, swear that the formalities required by the statute were not complied with, if, from other testimony in the case, the court or jury is satisfied that the con- trary was the fact.^^ If the attesting witnesses contradict each other as to the formalities of execution, the surrogate is not, therefore, bound to pronounce against the validity of the will, but may give credence to the affirmative rather than the negative testimony. ^^ The positive recollection of one such witness will not be overcome by the nonrecoUection of the other.^^ Proof of the handwriting of the testator, and of the subscribing witnesses, will justify a decree of probate, even against the positive testi- mony of both the witnesses that they had never acted as such.^ And, in such a case, other things being equal, the testimony of lawyers will outweigh that of laymen.^^ 21 Jauncey v. Thome, 2 Barb. Ch. 40; Chaffee v. Baptist Missionary Conven- tion, 10 Paige, 85; Peebles v. Case, 2 Bradf. 226; Jackson v. Christman, 4 Wend. 277; Orser v. Orser, 24 N. Y. 51; Kinne v. Kinne, 2 Sup. Ct. (T. & C.) 391; Eugg V. Eugg, 83 N. Y. 592; Theological Seminary v. Calhoun, 25 id. 422; Peck v. Cary, 27 id. '9; Eceve v. Crosby, 3 Eedf. 74; Matter of Fitzgerald, 33 Misc. 325; 68 N. Y. Supp. 632; Matter of Stoekwell, 17 Misc. 108; 40 N. Y. Supp. 734. As to uncertainty or conflict in wit- ness's testimony generally, see Matter of Forman, 54 Barb. 274 ; McKinley v. Lamb, 56 id. 284; Merchant's Estate, 1 Tuck. 151. 22Theo. Seminary v. Calhoun, 25 N. Y. 422. And see, as to the effect of conflict or uncertainty in witnesses' testimony as to publication, Matter of Forman, 54 Barb. 274; Newton's Es- tate, 1 Tuck. 349; Lawrence's Will, id. 243; Hopper's Estate, id. 378; Mer- chant's Estate, id. 151 ; Matter of Bo- gert, 6 Civ. Proc. Eep. 128; Matter of Look, 26 St. Eep. 745; 7 N. Y. Supp. 298. But due execution and publication cannot be established by the testimony of one of the subscribing witnesses against that of the other, where there is no attestation clause and the testi- mony of such witness is discredited by contrary statements made about the time of the alleged execution. Matter of Barber, 92 Hun, 489 ; 37 N. Y. Supp. 235.) ^^ 23 Morris v. Porter, 52 How. Pr. 1; Matter of Graham, 30 St. Eep. 292; Whitfield V. Whitfield, 19 Week. Dig. 386 ; Eugg v. Eugg, 83 N. Y. 592. 24 Matter of Cottrell, 95 N. Y. 329. 25 Humphreys' Estate, 1 Tuck. 142; Neiheisel v. Toerge, 4 Eedf. 328 ; Mat- ter of McKenna, 16 St. Eep. 971; Mat- ter of Merriam, 42 id. 619; 16 N. Y. Supp. 738; Matter of Snelling, 44 St. Eep. 477 ; 17 N. Y. Supp. 683. A will containing a full attestation clause subscribed by three witnesses, — admitted to probate upon the testi- mony of one of them, an attomey-at- law, who drew the will, showing full formal execution thereof, notwith- standing the testimony of the other two witnesses, neither of whom was shown to know the essential elements of a valid execution of a will, to the effect that there had been no publica- tion. (Egan V. Pease, 4 Dem. 301.) In Matter of Kummer (N. Y. Law J., Apr. 30, 1892), each of the subscrib- ing witnesses testified with positive- ness that they signed the will before the testatrix made her signature; but the notary who drew and superin- tended the execution testified that the signing by testatrix was first ; that he had been a notary for fifteen years, and during that time had drawn and super- intended the execution of at least a dozen wills and loiew what was requi- site for a valid execution. The mother- in-law of the residuary legatee, a stranger to decedent in blood, also tes- tified that the signing by the testatrix preceded that of the witnesses. "As 161 The Peobate of Wills. § 205. SUBDIVISION 3. testatoe's knowledge of contents of the will. § 205. Object of statutory requirement. — As already stated,^ the object of the statutory requirement that the testator declare iu the presence of each witness that the instrument is his will, is to secure him against being fraudulently induced to execute a will, while he is under the belief that he is signing some other than a testamentary paper. His knowledge that he is executing such a paper will be sometimes inferred from the fact of its publication and the circumstances attending the ceremony of execution; the fact that the paper was in testator's own handwriting goes far toward creating a presumption of such knowledge; but an issue in a probate case may be, whether, notwithstanding the observance of all the formalities of execution and publication, the testator had a competent knowledge of the contents of the paper. For the will offered for probate must be the will of the testator, and of no one else ; it cannot be said to be his will, if he was ignorant of its contents. Something more needs to be said, on this subject, in amplification of the observations already made under the head of publication of will. A testator who executes a will without knowing and compre- hending its contents, cannot be said to be capable. It has been said by an eminent judge, in one case, that a testator may, if he likes, authorize another person to make a will for him, and may say : " I do not know what you have put down, but I am quite ready to execute it." ^ But this doctrine has been declared, by another equally eminent judge, to be at variance with one of the first principles of testamentary law.^^ The testator's knowledge of the contents of the will forms a part of the proposition that a will was made, and stands upon a like footing with general testa- mentary capacity.^® That the testator did know and approve of the two subscribing witnesses were lay- Cresswell, Cunliffe v. Cross, 3 Sw. & men, and not informed in respect to Tr. 38. ) The same rule was adopted in what was essential for the execution of Middlehurst v. Johnson, 30 L. J. P. M. legal papers, I believe that their mem- & A. 14. cry must be at fault. The will is ad- 28 Per Sir J. Wilde, Hastilow v. Sto- mitted." (Per Ransom, S.) bie, L. R., 1 P. & D. 64. 26 See § 194, ante. 29 To make a will valid, testator 27 And accordingly it was held that must know the contents before execu- a plea was bad which alleged that a, tion, and that fact must be shown, codicil was not in conformity with the Subsequent ratification is not suffi- testator's instructions, and that he was cient. (Matter of White, 15 St. Rep. ignorant of its contents. (Per Sir C. 753.) 11 § 206. The Probate of Wills. 162 the contents of the alleged will is, therefore, part of the burden of proof assumed by every one who propounds it as a will. § 206. Presumption of knowledge of contents. — A very strong presumption of the testator's knowledge and approval of the con- tents of the will arises from the fact that he read it, and then formally executed it. Indeed, it has been claimed that such read- ing is conclusive on the question of a competent testator's knowl- edge. In one case ^^ the court charged the jury that, if they were satisfied that the testator read the contents of the will, they were bound to find that he knew and approved them. But it cannot be said that there is any rigid rule by which, when you are once satisfied that a competent testator has had his will read over to him, and has thereupon executed it, all further inquiry is shut out.^^ Unquestionably there is danger in holding a rule that any man of sound mind, who has put his hand to an instrument, after having had that instrument read over to him, can have meant otherwise than what he said; nevertheless, the circumstances of the case may be such, that the court or jury should be satisfied 30 Lord Penzance, in Atter v. Atkin- of the testator having been a person of son (L. R. 1 P. &D. 664, 670),said; "If, sound mind and memory, and also being of sound mind and capacity, the having had read over to him that testatrix read this residuary clause, the which had been prepared for him and fact that she afterward put her signa- which he executed as his will. It is im- ture to it, is conclusive to show that possible, as it appears to me, in the she knew and approved of its contents, case where the ingredient of fraud en- Reflect upon the contrary proposition, ters, to lay down any clear and unyield- Suppose that a long will, with a num- ing rule like this. One is strongly im- ber of complicated arrangements, is pressed with the consideration that, read to a competent testator, and is according to the natural habits and executed by him ; if we were permitted, conduct of men in general, if a man some time after his death, to enter into signs any instrument, he being oompe- a, discussion as to how far he under- tent to understand that instrument, stood and appreciated the bearings of and having had it read over to him, all the different parts of the will, we there is a very strong presumption should upset half the wills in the coun- that it has been duly executed, and that try. Once get the facts admitted or very strong evidence is required in op- proved, that a testator is capable, that position to it in order to set aside any there is no fraud, that the will was instrument so executed." It was ac- read over to him, and that he put his cordingly held, that though the jury hand to it, and the question whether he found, on the trial of separate issues, knew and approved of the contents is 1st, that the testator was of sound answered." mind, etc.; 2d, that he knew and ap- si Pulton V. Andrew, L. R. 7 H. L. proved of the contents of the will ; yet 438 ; 15 Moak, 67. In that case Lord having found for the contestant, on Hatherly said : " No doubt those cir- the issue, whether he knew and ap- cumstances afford very grave and proved of the residuary clause, the pro- strong presumption that the will has ponents were not entitled to a probate been duly and properly executed by the of the whole will. It should be added testator ; still circumstances may exist that, in this case, the circumstances in- which may require that something dicated fraud on the part of the benefi- further shall be done in the matter eiaries under the residuary clause, than the mere establishment of the fact 163 The Peobate of Wills. §207. that it was not only read over to him, but that it was read over in such a manner that the discrepancy between the instructions and the will was brought before the consideration of the testator.*'' § 207. In case of impaired faculties. — Whatever may be the rule in the case of a perfectly competent and capable testator, the principle is clear and well settled, that when a case presents any circumstances naturally calculated to excite suspicion — such as impairment of the sense of sight or hearing, the physical prostra- tion or mental weakness of the testator, or the beneficial interest of the person who prepared the will — the court may, and it is his duty to, require the proponents to show affirmatively, as a con- dition of probate, that the testator had an intelligent knowledge of the contents of the will.'" Thiis, a testator who was deaf and dumb,** or was blind,*^ or was unable to read or write,*® or was illiterate,*'' or was enfeebled by old age, sickness,*® intemperance, and the like causes, must be shown not only to have read, or heard 32 Probate cannot be sustained if it does not appear that the testator had any opportunity to learn the contents of the instrument before its execution. (Matter of Hatten, 10 St. Eep. 19.) See Rundell v. Downing, 5 St. Rep. 253; Hagan v. Yates, 1 Dem. 584; Rollwagen v. Rollwagen, 5 Sup. Ct. (T. & C.) 402; afiFd., 63 N. Y. 504. But it is not absolutely essential to the validity of a will that it should be read by or to testator previous to its execution by him. (Will of Crumb, 6 Dem. 478.) To the same effect, see Matter of Sheldon, 40 St. Rep. 369; 16 N. Y. Supp. 454; Mat- ter of Smith, 53 St. Rep. 658; 24 N. Y. Supp. 928; Matter of Seagrist, 11 Misc. 188; aflfd., 1 App. Div. 615; 153 N. Y. 682; Matter of Hall, 5 Misc. 461. WKere a testator could read writing and was capable of transacting busi- ness, his knowledge of the contents of the will may be inferred, even though it was not read to him. (Matter of Metcalf, 16 Misc. 180 ; 38 N. Y. Supp. 1131.) In the absence of circum- stances showing want of good faith, knowledge of the testator as to the contents of the will is sufficiently shown by testimony of the draughts- man as to the instructions received from the testator and that he followed them. (Matter of Seagrist, supra.) 33 Barry v. Boyle, 1 Sup. Ct. (T. & C. ) 422 ; Townsend v. Bogart, 5 Redf. 93; Hyatt v. Lunnin, 1 Dem. 14; Cooper v. Benedict, 3 id. 136; Heath V. Cole, 15 Hun, 100; Jones v. Jones, 42 id. 563; Matter of Green, 67 id. 527. In Matter of Sampson (N. Y. L. J., June 7, 1891, N". Y. Surr. Ct.). the cour t said : " With the advanced age of the wife, her debilitated con- dition for years, her inability to plainly express her thoughts in speech, and the fact that the instructions in respect to its provisions had come from the husband, mere proof of formal execution was not sufficient to admit the instrument to probate. It was incumbent upon the proponent to prove, to the satisfaction of the court, that she understood the provisions of the instrument, and that they expres- sed her wishes at the time of its execution." 34 Matter of Perego, 65 Hun, 478; 20 N. Y. Supp. 394; Matter of Brom- mer, 78 Hun, 611; 28 N. Y. Supp. 907. 35 Fincham v. Edwards, 3 Curt. 63 ; Hemphill v. Hemphill, 2 Dev. (N. C.) 291; 21 Am. Dec. 331; Weir v. Fitz- gerald, 2 Bradf. 42 ; Mowry v. Silber, id. 133; Matter of Clansman, 9 St. Rep. 182. 36 Van Pelt v. Van Pelt, 30 Barb. 134; Matter of Smith, 39 St. Rep. 698; 15 N. Y. Supp. 425. 3T Chaflfee v. Baptist Miss. Conv., 10 Paige, 85; Matter of Murphy, 15 Misc. 208; 37 N. Y. Supp. 223. 38 Matter of De Castro, 32 Misc. 193; 66 N. Y. Supp. 239. §§ 208, 209. The Probate of Wills. 164 read, the contents of the will, but he must be shown to have com- prehended their meaning. In all such cases large latitude will be allowed in the admission of any evidence tending to show that the testator had full knowledge of the contents of the wUl.^® SUBDIVISION 4. TESTAMENTARY CAPACITY. § 208. Testamentary age. — To entitle a will to be admitted to probate, it must appear that the testator, at the time of executing the will, was of an age competent to execute it, and of sound mind and memory.*" It should appear that the testator, if a male, was, at the time of executing the will, if it relates to personal property only, of the age of eighteen years or upward, and of the age of sixteen years or upward if a female;*^ and if relating to real property, of lawful age, viz., twenty-one years.*^ Courts will always examine the circumstances attending the execution of a minor's will with more than usual care to see that it really represents the deliberate and intelligent wish of the testator, and, if this is doubtful, will refuse probate.*^ § 209. Citlz&nship. — It is commonly averred, in the petition for the proof of a will, that the testator was a citizen of the United States; but this is not necessary. The testator's citizenship does not affect his power to dispose by will, but only his right to hold real property in this State. One who is civilly dead, e. g., a con- 39 Lake v. Eanney, 33 Barb. 49; child was born, at whose birth he at- Matter of Carver, 23 N. Y. Supp. 753. tended, unless sustained by proof of Where it appeared that testator, at its truth. But the mother of the tes- the execution of the will, was weak, tator is a competent witness to prove stupid, and at times delirious, and did the time of his birth. (Matter of not understand the will when read to Paige, 62 Barb. 476.) him, and- the physician testified 42 2 R. S. 56, § 1; L. 1867, c. 782, against his mental capacity to under- § 3. Before the Revised Statutes, a stand it, the question as to the exeeu- married woman could make a will of tion should go to a jury before pro- her separate personal estate, which bate. (Matter of Totten, 21 St. Rep. would be valid in a court of equity; 950.) See Matter of Anderson, 18 id. but those statutes took away the 517. right. By the Married Woman's Act 40 2 E. S. 56, 60, §§ 1, 21; L. 1807, of 1849, the right was restored, and c. 782, §§ 3, 4. in 1867 the Revised Statutes were 41 2 R. S. 60, § 21 ; L. 1867, c. 782, amended so as to express the same § 4. The policy of this statute is ex- rule. ( Moehring v. Thayer, How. App. plained in Townsend v. Bogart (5 Cas. 502; Wadhams v. American Home Redf. 93). The nonage of the testa- Miss. Society, 12 K Y. 415.) But a tor cannot be shown by declarations married woman, who is a minor, has of the testator as to his age, nor by a no more power than if she were single, memorandum in the handwriting of a to devise her real estate. (Zimmer- physician and surgeon, in an account- man v. Schoenfeldt, 3 Hun, 692.) book kept by him, of the time the 43 Seiter v. Straub, 1 Dem. 264. 165 The Probate of Wills. § 210. vict, may still make a valid will.** In the case of the will of a nonresident of the State, the fact of the testator's residence, either at the time of making the will or at his decease, may become material.*® § 210. Mental capacity. — The statute relative to wills of real property declares that all " persons, except idiots, persons of un- sound mind, and infants," may devise their real estate.*® The statute relative to wills of personal property declares that per- sons of certain ages or upward, " of sound mind and memory," and no others, may bequeath personal estate.*'' l^o difference of principle is intended by this difference of language. The general principle applicable to both classes of cases, as deduced from the authorities to which we shall presently refer in more detail, is that, to be of sound mind and memory within the intent of either of thesie statutes, the testator must, at the time of executing the will, have had sufficient capacity to comprehend the conditions of his property, and his relations toward the persons who are, or might be, the objects of his bounty, and the scope and bearing of the provisions of his will.** Mere imbecility, old age, or weak- ness of mind and body does not incapacitate, if there be sufficient understanding to satisfy the foregoing rule.*^ According to the doctrine of Stewart v. Lispenard,®* the test of testamentary- capacity in each case is, had the testator capacity to make any will? and that reference cannot be had to the nature of the will and the claims on the testator's benefactions, to determine 44Stephani v. Lent, 30 Misc. 346; Hun, 462; 26 N. Y. Supp. 494; Mat- 63 N. Y. Snpp. 471. ter of Flansburgh, 82 Hun, 49; 31 N. *5See ante, % 152. Y. Supp. 177; Matter of Seagrist, 1 «2 E. S. 56, § 1; L. 1867, e. 782, App. Div. 615; 37 N. Y. Supp. 496; § 3; L. 1896, c. 547. 153 N. Y. 682; Matter of Carey, 14 *T2 R. S. 60, § 21; L. 1867, c. 782, Misc. 486; 36 N. Y. Supp. 817; Mat- § 4. ter of Tredale, 53 App. Div. 45; 65 *8 This is the rule established in N. Y. Supp. 533. Delafield v. Parish (25 N. Y. 9, as ex- « Horn v. Pullman, 72 N. Y. 269; plained in 1 Eedf. 204 ), and reiterated Cornwell v. Riker, 2 Dem. 354; Mat- in Van Guysling v. Van Kuren (35 ter of Weil, 5 St. Rep. 363; Matter N. Y. 70), and Tyler v. Gardinet (35 of Gross, 14 id. 429; Matter of Met- id. 559), modifying to some extent the calf, 16 Misc. 180; 38 N. Y. Supp. doctrine laid down in Stewart v. Lis- 1131 ; Matter of Halbert, 15 Misc. penard (26 Wend. 255), and other 308; 37 N. Y. Supp. 757; Matter of prior cases. (Kinne v. Johnson, 60 Seagrist, 1 App. Div. 615; 153 N. Y. Barb. 69.) The doctrine of the prin- 682; Matter of McGraw, 9 id. 372; 41 cipal case is discussed in Sheldon v. N. Y. Supp. 481 ; Matter of Pike, 83 Dow, 1 Dem. 503, and approved in Hun, 327; 31 N. Y. Supp. 689; Mat- Matter of Johnson, 7 Misc. 220; 27 ter of Harris, 19 Misc. 388; 44 N. Y. N. Y. Supp. 649; Matter of Lewis, 81 Supp. 341; Matter of Dixon, 42 App. Hun, 213; 30 N. Y. Supp. 675; Mat- Div. 481; 59 N. Y. Supp. 421. ter of Townsend, 75 Hun, 593 ; 27 N. 50 26 Wend. 255. Y. Supp. 603; Matter of Skaats, 74 § 211. The Probate op Wills. 166 whether he had a sufficient degree of intelligence to make a ■will with reference to the complexity of those circumstances. By the rule now settled, reference may be had to the nature of the par- ticular case, and the question is, whether the testator had sufficient intelligence to be capable of acting with sense and judgment in reference thereto.'^'' Hence, where it appeared that at the time the will was executed, the testator was suffering from a mental disease, which resulted shortly thereafter in a total loss of mentality, the mere fact of such disease was declared to be imma- terial, the question being whether, at the time of executing- the will, the disorder had so far progressed as to seriously impair his faculties and prevent an intelligent disposition of his property.®^ § 211. Insane delusions. — The doctrine that any insane delusion incapacitates from making a will has commanded the assent of some high authorities. But the weight of authority and the bet- ter opinion accord with the rule settled in this State, by which mental capacity is measured in this, as in every other legal aspect, by its relation to the act. Hence, a person having any insane delusion relating either to the property, to the persons concerned, or to the provisions of the will, is incapable; while delusions which in no way relate to these do not, as matter of law, incapacitate, for they involve no more likelihood of actual incapacity than many other latent causes.^* A person may have an insane belief or delusion as to one or more subjects, and not as to others. The question, in respect to the testamentary capacity, in the abstract, is, had the testator, at the time, a sufficiently sound mind to make a will; but practically, in most cases, the question is, had the testator a sufficiently sound mind to make the will in question. There is but one standard of testamentary capacity known, to the law of this State, and that is embraced in the inquiry, was the Bl So far as they followed Stewart person is forgetful, and, at times, V. Lispenard, the following cases must labors under slight delusions, does not be considered overruled by more recent per se establish want of testamentary ones : Blanchard v. Nestle, 3 Den. 37 ; capacity. ( Children's Aid Society v. Person v. Warren, 14 Barb. 488 ; New- Loveridge, 70 N. Y. 387 ; Matter of house V. Godwin, 17 id. 236; Oster- Vedder, 6 Dem. 92; Cornwall v. Riker, hout V. Shoemaker, 3 Den. 37, note; 2 id. 354; Matter of Williams, 40 St. Petrie v. Shoemaker, 24 Wend. 85. Eep. 356; 2 Connoly, 579; 15 N. Y. Compare Clarke v. Sawyer, 2 N. Y. Supp. 828; affd., 46 St. Rep. 791; 19 498; Cornwell v. Riker, 2 Dem. 354; N. Y. Supp. 778; Matter of Hopkins, Potter V. McAlpine, 3 id. 108. 6 St. Eep. 390; Matter of Buckley, 16 52 Matter of Lawrence, 48 App. Div. id. 983 ; Coit v. Patehen, 77 N. Y. 83; 62 N. Y. Supp. 673; Hoey v. 533; Matter of Folts, 71 Hun, 492; Hoey, 53 App. Div. 208. 24 N. Y. Supp. 1052; Matter of Rich- 53 See Bonard's Will, 16 Abb. Pr. ardson, 51 App. Div. 637; 64 N. Y. (N. S.) 128. The fact that an aged Supp. 944.) 167 The Probate of Wills. §217. decedent compos mentis, or non compos mentis, as those terms are settled in the law, at the time of the execution of the instru- ment.®* A man's ability to transact his ordinary business with judgment and discretion is very strong, if not conclusive, evi- dence of testamentary capacity."^ A monomaaiiajc may make a perfectly valid will, if the delusion which affects the general soundness of his mind has no relation to the subject or object of the will, or the persons who would otherwise be likely, ordinarily, to be the recipients of his bounty; or where the provisions of the will are entirely unconnected with, and uninfluenced by, the par- ticular delusions; on the other hand, if the will is the result of that partic^ilar delusion which has seized his mind, and controls its operations, it is no will.*® Thus probate was refused where the will gave all the property to the testator's widow, to the exclusion of his children, on the ground that he was a monomaniac on the subject of his children, that he had the insane delusion that they were his enemies and were combined against him to rob him of B4 White V. Ross, 48 St. Rep. 599. 85 Matter of Birdsall, 34 St. Rep. 626; 13 N. Y. Supp. 421. A person having capacity sufficient to acquire a large fortune by personal industry and intelligence, who successfully con- duets a large business, whose business correspondence shows a clear compre- hension of the subjects upon which he writes, and who is pronounced by his intimate friends of sound mind, and of more than ordinary intelligence and firmness, will not be considered as incompetent to make a will simply because he exhibits eccentricities of character in regard to himself, is sub- ject to fits of melancholy in regard to his health, even amounting to hypo- chondria. (Brick V. Brick, 66 N. Y. 144.) See Dobie v. Armstrong, 160 id. 584. Confirmed drunkards. — The prin- ciples of law applicable to the avoid- ance of wills by reason of the drunk- enness of testators were exhaustively considered in Peck v. Gary (27 N. Y, 9 ) . The testator in that case was a young man, a confirmed drunkard, who had more than once attempted suicide : " It is not the law that dis- sipated men cannot make a contract or execute a will, nor that one who is in the habit of excessive indulgence in strong drink must be wholly free from its influence when performing such acts. If fixed mental disease has supervened upon intemperate habits, the man is incompetent and irre- sponsible for his acts. If he is so excited by present intoxication as not to be master of himself, his legal acts are void though he may be responsible for his crimes " ( per Denio, C. J. ) . To the same effect is the language of Judge Earle, in Van Wyck v. Brasher (81 N. Y. 260), who says: "A drunk- ard is not incompetent like an -diot or like one generally insane, fle is simply incompetent upon proof that, at the time of the act, his understand- ing was clouded or his reason de- throned by actual intoxication." See Matter of Fenton, N. Y. Law J., June 22, 1893; Matter of Peck, 42 St. Rep. 898 ; Matter of Reed, 2 Connoly, 403 ; Matter of Halbert, 15 Misc. 308; 37 N. Y. Supp. 757; Matter of Woolsey, 17 Misc. 547; 41 N. Y. Supp. 263; Matter of Johnson, 7 Misc. 220; 27 N. Y. Supp. 649. BBLathrop v. American Board, 67 Barb. 590; Stanton v. Wetherwax, 16 id. 263; Seamen's Friend Society v. Hopper, 33 N. Y. 624; Burdin v. Wil- liamson, 5 Hun, 560 ; Miller v. White, 5 Redf. 320; Matter of Ziegler, 47 St. Rep. 491; Matter of Gannon, 2 Misc. 329; 21 N. Y. Supp. 960; Matter of Iredale, 53 App. Div. 45; 65 N. Y. Supp. 533; Matter of Lapham, 19 Misc. 71; 44 2Sr. Y. Supp. 90. 211. The Probate of Wills. 168 his property, leading him to disown them as his children and to disinherit them from any share in his property, which they had assisted him in accumulating; and that such tendency and delusion were aggravated by the undue influence of the stepmother of his children, although the surrogate found that he was rational and competent to transact business upon other subjects.^^ Wherever it appears from the evidence that the will was unnatural in its provisions and inconsistent with the duties and obligation of the testator to his family, the burden is imposed upon the proponent of giving some reasonable explanation of its unnatural character, or at least of showing that it was not the result of mental defect, obliquity, or perversion."* But a man's right to dispose of his estate depends neither upon the justice of his prejudices nor the soundness of his reasoning. Thus where a testator in making provision for his daughter believed her to be insane, it is not sufficient to show merely that his belief was unfounded; it must have been an insane belief — a delusion."'' 57 Matter of Dorman, 5 Dem. 112. To the same effect, see Esterbrook v. Gardner (2 Dem. 543), where pro- bate of a codicil was refused of a woman of advanced years and feeble health by which she disinherited her daughter, with whom she was living happily, in the absence of proof as to condition of testatrix's mind. But probate will not be refused on such considerations as that the will is mean, unjust, and inequitable ; or that it withholds the absolute ownership of decedent's property from his own children, or make^ unequal provisions for them; or that public sentiment and the moral sense of the community condemn the instrument and its author. (Potter V. McAlpine, 3 Dem. 108; Matter of Finn, 1 Misc. 280 ; 22 N. Y. Supp. 1066. ) Compare Matter of Shaw, 2 Redf. 107; Lathrop v. Borden, 5 Hun, 560; Stanton v. Wetherwax, 16 Barb. 259; Seamen's Friend Society V. Hopper, 33 N. Y. 619; Eiggs v. American Tract Society, 95 id. 503; Morse v. Scott, 4 Dem. 507 ; Matter of McCue, 14 Week. Dig. 501; Bull v. Wheeler, 5 Dem. 123 ; Matter of Weil, 16 St. Rep. 1; Matter of Fricke, 47 id. 10; 19 N. Y. Supp. 315. 58 Matter of Budlong, 54 Hun, 131; 18 Civ. Pro. 18; aflFd., 126 N. Y. 423. See Matter of White, 121 N. Y. 406. Testamentary capacity in a case in which testator changed his will, which gave absolute be- quests, by a codicil which gave life interests, only, to his children, was sustained in Matter of Dates, 35 St. Rep. 338; 12 N. Y. Supp. 205. In Matter of Hamersley (Daily Reg., Jan. 8, 1886), a will was admitted to probate, where the testator's nearest relatives, beside his wife, were uncles and aunts and the children and grand- children, of uncles and aunts de- ceased, and the will gave his wife his entire estate with a power, exercisable in a certain contingency, of making a testamentary disposition of the prin- cipal for general purposes of charity. 59Hoyt V. Hoyt, 9 St. Rep. 731; Matter of O'Dea, 84 Hun, 591 ; 33 N. Y. Supp. 463; Matter of Suydam, 84 Hun, 514; 32 N. Y. Supp. 449; affd., 152 N. Y. 639; Matter of Bedlow, 67 Hun, 408. In Matter of Gannon (2 Misc. 329; 21 N. Y. Supp. 960) the will was set aside, notwith- standing the jury found that testator had testamentary capacity, because they also found he had a delusion as to the fidelity of his wife, whom he deprived of any portion of his prop- erty. But in Matter of Smith (53 St. Rep. 658), probate was granted not- withstanding testator's erroneous be- lief that the contestant was not his son. In that case it was said that, to constitute a delusion there must be a belief in the existence, as a fact, of something which docs not exist; such belief must be without basis for its 169 The Probate of Wills. § 212. § 212. Burden of proof as to mental capacity A prima facie case being made out, probate mil be granted, unless a contestant, either by the cross-examination of the subscribing witnesses them- selves, or by other witnesses, successfully impeaches the pro- ponent's witnesses. The proponent is bound to show general competency to perform ordinary business transactions, and hav- ing done this, the burden is shifted from the proponent; and the contestant must show that at the time of the execution of the will the testator labored under a delusion, aberration, or weakness of mind ;*** or that the will was obtained by undue influence.*^ But where the testator could neither read, write, nor speak, or was a feeble and aged person, or had previously been adjudged incom- petent,®^ there should be not only proof of the factum of the will, but also that the mind of the testator accompanied the act; that he knew and understood the contents of the instrument and that it expressed his will.*^ There is an apparent inconsistency and want of reasonableness in requiring the proponent to prove as a fact what the law has invariably declared to be presumed and as of course. It has never been doubted, as the law of England and of this country, that " every person is presumed to be of perfect mind and memory, unless the contrary be proved;" ^ and yet the law requires evi- dence of the fact as requisite to the probate of the person's will. It is true that the subscribing witnesses, though not experts, are allowed to satisfy this requirement of the law, by expressing naked opinions as to the testator's mental capacity, and are not required to state any facts upon which they base their opinions — support, springing up without cause Jones v. Jones, 43 St. Rep. 434; 17 in the imagination of the person en- N. Y. Supp. 905. tertaining it, and become so firmly im- 61 Marvin v. Marvin, 3 Abb. Ct. planted in the mind as to withstand App. Dec. 192; 4 Keyes, 9. such evidence and argument as would ^^ Matter of Widmayer, 34 Misc. convince reasonable persons of its 439; 69 N. Y. Supp. 1014. falsity. See Matter of Lapham, 19 68 Rollwagen v. Rollwagen, 63 K Y. Misc. 71; 44 N. Y. Supp. 90. It is 504; Matter of O'Dea, 84 Hun, 591; proper in order to account for an al- 33 N. Y. Supp. 463; Matter of Barbi- leged prejudice against his children, neau, 27 Misc. 417; 59 N. Y. Supp. which they claim constituted a de- 375. Burden of proof that the tes- lusion, to show that, just previous to tator understood the nature of his act the execution of the will, the children is upon the proponent. (Rundell v. attempted to have testator declared a Downing, 5 St. Rep. 253.) See § 205, lunatic, and that the jury found him ante. sane : but the record of such proceed- 64 Swinb. 45, pt. 2, § 3, pi. 4. And ings is incompetent to show his testa- see Ean v. Snyder, 46 Barb. 230 ; mentary capacity. (Matter of Spring- Brown v. Torrey, 24 id. 583; Matter stead, 28 St. Rep. 186; 8 N. Y. Supp. of Lapham, 19 Misc. 71; 44 N. Y. 596.) Supp. 90; Matter of Dwyer, 29 Misc] 60 Allen V. Public Adm'r, 1 Bradf. 382; 61 N. Y. Supp. 903. 378; Ramsdell v. Viele, 6 Dem.' 244; § 213. The Peobate of Wills. 170 which cannot, of course, be considered of any value as evidence — and, therefore, no hardship is imposed upon the proponent of the will. A reasonable explanation of this anomalous requirement, as given by a legal writer, '^^ is that, by requiring the proponent to ask the opinion of the subscribing witnesses upon the point of testamentary capacity, or apparent capacity, the object is not to prove thB fact, but to give the contestants an opportunity of cross- examining these confidential witnesses in the first instance, in order to become apprised of what passed at the execution of the will ; and the law will not, therefore, compel the contestants to make the sub- scribing witnesses their own, by recalling them upon any point in- volved in the entire issue, and thereby lose the advantage of cross- examination. This explanation, in which we concur, -will not in any way affect the question of burden of proof, or entitle the con- testant to claim the right to go forward with his case, and thus give him the advantage of closing the proof and argument. It may be said, therefore, that so strong is the presumption of sanity, that the only burden on the proponent is to produce the subscribing witnesses, when required to do so, and obtain their general opinion as to the mental capacity of the testator at the time of the execution of the will. Not more than this is re- quired, even in a case where it appears that there had been, formerly, a want of testamentary capacity.*® § 213. Opinions as evidence of mental capacity. — The ordinary rule, as it is generally laid down, is that a witness cannot give his conclusions from facts, but must state the facts, leaving the in- ferences to be drawn by the court or jury. But it has been re- marked that there are few statements of fact that are not con- clusions of fact; and that the true line of distinction is, that an inference necessarily involving certain facts may be stated with- 65 Redfield's American Cases upon years after making his ■will, although Wills, 31, note. it was not conclusive upon his in- 66 Brown v. Torrey, 24 Barb. 583 ; sanity at the time of making the will, Potter V. McAlpine, 3 Dem. 108. And yet threw the burden of proof upon see Ean v. Snyder, 46 Barb. 230. But the proponents. See also Matter of compare Jackson v. Van Dusen (5 Widmayer, 34 Misc. 439; Gombaultv. Johns. 144), where it was held, that Public Adm'r, 4 Bradf. 226. The sur- after a, general derangement has been rogate will exact from proponent only shown, the other side must show that slight evidence of testator's mental the party was sane at the very time capacity, and at the end of contest- the act was performed; and Matter ant's proof, further evidence, though of Taylor (1 Edm. 375), where it was not strictly in rebuttal, may be fur- held that the fact that the testator, nished by the proponent, in the dis- two years before making his will, was cretion of the court. (Hoyt v. Jack- adjudged insane, and that Tie was in- son, 2 Dem. 443.) sane at the time of his death, two 171 The Probate of Wills. § 213. out the fact, — the inference being an equivalent to a specifica- tion of the facts ; hut when the facts are not necessarily involved in the inference, as where the inference may he sustained upon any of several distinct phases of fact, nope of which it necessarily involves, then the facts must he stated.^'^ At any rate, there are certain well-recognized exceptions to the rule above mentioned. Thus, experts may give their opinions upon questions of trade, skill, or science, from the facts proven or the circumstances noted by themselves;*^ and in respect to the question of sanity, the opinions not only of medical everts, but of nonprofessional wit- nesses, are in some cases conlpetent.*^ To prove capacity or in- capacity of a testator, it is competent to prove either his acts and declarations, showinff4iis mental condition, or the opinions of wit- nesses upon the qujgstion. Evidence of what his mental condition was, both previously and subsequently to the testamentary act, is admissible as throwing light upon the question of capacity at the time.^o / In respect to the competency and weight of the opinions of witnesses, there are three classes to be considered: 1. Medical experts; who are specially capable of forming an opinion by reason of their professional acquaintance with mental disorders. 2. The subscribing witnesses to the will; who, though they be not experts, are, by reason of their essential connection with the testamentary act, allowed to express their convictions as to the 6T Wharton on Ev. (2d ed.),§§436, 455; aflfd., 88 N. Y. 357), the con- 507, 510; Abb. Trial Ev. 116. testant offered in evidence a diary 68 Hewlett V. Wood, 55 N. Y. 634. kept by the testatrix in which, be- 69 Fagnan v. Knox, 40 N. Y. Supr. sides a statement of facts and events, 41, 53; Clapp v. FuUerton, 34 N. Y. there were expressions of her senti- 190. ments toward her sister, the contest- 70 Matter of Comstoek, 26 St. Kep. ant, and of her interest in, and fond- 292; 7 N. Y. Supp. 334; Matter of ness for, the chief beneficiary under Brunor, 21 App. Div. 259. Repeated her will. Held, that as to these latter statements of testamentary intentions, expressions, the memoranda of the made to acquaintances, may have diary were admissible as bearing up- weight in ascertaining whether the on the probability of decedent making will accorded with his mind. (O'Neil such a will as the one propounded, if V. Murray, 4 Bradf. 311.) See Mat- in her sound mind; but that all state- ter of Soden, 38 Misc. 25; Matter of ments of facts tending to show the Wilde, id. 149. The subject is fully conduct of the decedent, the bene- discussed in Wood v. Bishop, 1 Dem. fioiary, or the contestant, unless made 512. The general rule undoubtedly is, at the time, and forming part of the that the declarations of the testator, transaction of the execution of the if made near the time of making the will, were not competent. See La Bau will, are competent, on the issue of v. Vanderbilt. 3 Redf. 384; Matter of mental capacity, as a part of the res Rapplee, 66 Hun, 558; aifd., 141 N. gestae, for the purpose of showing the Y. 553; and also the statement of the state of the testator's mind. (Matter principle and illustrations of the rule, of Green, 67 Hun, 527; 20 N. Y. Supp. in Abbott's Trial Ev. 115 et seq. 538.) In Marx v. McGlynn (4 Redf. §§ 214, 215. The Peobatb of Wills. 172 testator's capacity. 3. ^Nonprofessional witnesses wko did not attest the will. It is not within our province to treat of the per- missible methods of presenting the testimony of medical experts.''^ § 214. Opinions of subscribing witnesses. — The subscribing wit- nesses to the will constitute an exception to the rule that non- professional witnesses can be questioned only as to the facts and circumstances within their personal knowledge, and are not allowed to give their opinions upon, or inferences from, those facts. They are present at the very act of execution, and their opinions on the general question of testamentary capacity are admitted ex necessitate. It is the policy of the law to provide all possible safeguards for the protection of the heir as well as the testator. ISTo light is excluded in reference to the res gestae which can be furnished by the immediate actors. The subscribing witnesses may be required to state not only such facts as they remember, but their own convictions as to the testator's mental state; for it may well happen that on so vital a point they may retain a clear recollection of the general results, long after the particular cir- cumstances are effaced by lapse of time or obscured by failing memory.''^ They are to be looked to as the most trustworthy source of information in regard to the then condition of the tes- tator, and whether or not the act was free, voluntary, and unre- strained.^^ It does not follow, however, that a lay witness, al- though a subscribing witness, may testify that, in his judgment, the testator had not suificient mind to give the specific directions with reference to a testamentary disposition of his property.^* § 215. Opinions of lay witnesses. — An ordinary nonprofessional witness cannot be asked the broad question, whether he con- sidered the testator non compos mentis, or, which is the same Tl See generally, on this subject, they are quite confident that the events Matter of Snelling, 136 N. Y. 515. related by the witnesses present could 72 Clapp V. Fullerton, 34 N. Y. 190; not have occurred. (Matter of Connor, Hewlett V. Wood, 55 id. 635; Dumond 27 St. Rep. 905; affd., 124 N. Y. 663; V. KiflF, 7 Lans. 465; Matter of Peck, Matter of Kearney, 69 App. Div. 481; 42 St. Rep. 898; 17 N. Y. Supp. 248; 74 N. Y. Supp. 1045; Matter of Phil- Matter of Potter, 17 App. Div. 267; lips, 34 Misc. 442; 62 N. Y. Supp. 45 N. Y. Supp. 563; revd. on other 1011; Matter of Seagrist, 1 App. Div. points, 161 N. Y. 84. 615; 37 N. Y. Supp. 496; affd., 153 73 Matter of Comstock, 26 St. Rep. K. Y. 682; Matter of Connor, 29 Misc. 292; 7 N.Y. Supp. 334. The testimony 391; 61 N. Y. Supp. 910; Matter of of unimpeached witnesses as to testa- Conaty, 26 Misc. 104; 56 N. Y. Supp. tor's condition and capacity, and the 854.) See Dobie v. Armstrong, 160 circumstances attending the execution N. Y. 584. of his will, are not to be overcome be- 74 Matter of McCarthy, 55 Hun, 7 ; cause physicians who were not present 28 St. Rep. 342. testify from anterior observations that 173 The Pkobate of Wills. § 215. thing, incapable of managing his affairs.''^ Except in matters of science, art, skill, trade, navigation, value, and other similar in- quiries, witnesses are confined in their statements to facts observed and known by them, as distinguished from their opinions and conclusions.''* Where, however, the alleged imbecility is attrib- uted to old age, idiocy, or intoxication, these being causes which indicate themselves in outward appearances, in motions, gestures, tones of voice, and expression of the eye and face, the opinion of the witness who has testified to these facts is admissible. These causes show themselves by indications which are equally patent to all; any man of sound judgment and experience in life is com- petent to observe these indications, and to draw just inferences from them. Thus the witness may testify that " he thought " the person was growing childlike, or, " as he took it," light-headed.^^ And it seems that the same rule applies in cases of insanity, strictly so called, if the derangement of the mind is general, for, in such cases, scientific knowledge is rarely necessary to enable persons having opportunities for personal observation to judge of its existence.™ When a layman is thus exaxained as to facts within his own knowledge and observation, tending to show the soundness or unsoundness of a mind alleged to be diseased, he may characterize as rational or irrational the acts and declarations to which he testifies.™ But he cannot be asked what construction he placed upon certain motions of the decedent, or the meaning of certain sounds uttered by him.** It is not within the scope of this volume to illustrate the fore- going general principles by discussing the numerous cases upon which they are founded. We shall do no more here than refer in 75Dewitt V. Barley, 9 N. Y. 371, as RoUwagen v. KoUwagen, 3 Hun, 121; modified on a further decision given in affd., 63 N. Y. 504. 17 N. Y. 340; Hewlett v. Wood, 55 " Dewitt v. Barley, 17 N. Y. 340, N. Y. 635 ; Matter of Arnold, 14 Hun, 350. 525; Goodell v. Harrington, 3 Sup. 78 lb. And see Abb. Trial Ev. 235. Ct. (T. & C.) 345; Bell v. MoMaster, 79 Clapp v. Fullerton, 34 N. Y. 190; 29 Hun, 273; Matter of McCarthy, 48 Howell v. Taylor, 11 Hun, 214; Matter St. Rep. 315; 20 N. Y. Supp. 581. of Saddlemire, 22 Week. Dig. 411; Opinions of witnesses that certain Ledwith v. Claffey, 18 App. Div. 115. acts of testator, described by them. In Sisson v. Conger (1 Sup. Ct. [T. & were irrational, are no evidence of un- C] 564), a stricter rule was laid down, soundness of mind; but facts must be but the only authority cited was a given from which it may be judicially criminal case, and the distinction be- determined that the unsoimdness of tween cases of that class and cases of mind exists, before the legal presump- wills and deeds was not noticed. Com- tion of sanity can be overcome. (Mat- pare O'Brien v. People, 36 N. Y. 276 ; ter of Rapplee, 66 Hun, '558; 21 N. Y. 3 Abb. Pr. (N. S.) 368; affg. 48 Barb. Supp. 801; affd., 141 N. Y. 553.) 274; Matter of Rapplee, supra. 76 Matter of Ross, 87 N. Y. 514; soRollwagen v. Rollwagen, 3 Hun. 121; affd., 63 N. Y. 504. § 215. The Peobatb of Wills. 174 a note to some cases in this State, in which the rule of law as to testamentary capacity was discussed and applied to particular facts.*^ 81 Incapacity, generally. Alston v. Root, 62 Barb. 250 ; Matter of Stew- Jones, 17 Barb. 276; Burger v. Hill, 1 art, 39 St. Rep. 801; Matter of Folts, Bradf. 360; Bleecker v. Lynch, id. 458; 71 Hun, 492; 24 N. Y. Supp. 1052; Meehan v. Rourke, 2 id. 385; Roll- Cheney v. Price, 90 Hun, 238; 37 N. wagen v. RoUwagen, 63 N. Y. 504; Y. Supp. 117; Matter of Lang, 9 Misc. Tyler v. Gardiner, 35 id. 559; Chil- 521; 30 N. Y. Supp. 388; Matter of dren's Aid Soc. v. Loveridge, 70 id. Mabie, 5 Misc. 179; 24 N. Y. Supp. 387; Brick v. Brick, 66 id. 144; Cud- 855. ney v. Cudney, 68 id. 148 ; McLaughlin Illness and stupor. McGuire v. V. McDevitt, 63 id. 213; Mairs v. Free- Kerr, 2 Bradf. 244; Meehan v. Rourke, man, 3 Redf. 181. id. 385. Old age, but unimpaired faculties. Illness and undue influence. Clarke Van Alst v. Hunter, 5 Johns. Ch. 148 ; v. Sawyer, 2 N. Y. 498 ; Matter of Butler V. Benson, 1 Barb. 526; Moore Welsh, 1 Redf. 238; McSorley v. Mc- V. Moore, 2 Bradf. 261; Maverick v. Sorley, 2 Bradf. 188; Brush v. Hoi- Reynolds, id. 360; Leaycraft v. Sim- land, 3 id. 461; Darley v. Darley, id. mons, id. 35 ; Creely v. Ostrander, id. 481 ; Matter of Barbineau, 27 Misc. 107; Wightman v. Stoddard, id. 393; 417; 59 N. Y. Supp. 375; Matter of Bleecker v. Lynch, 1 id. 458; Carroll Gihon, 60 id. 6S; Matter of Nolte, 10 V. Norton, 3 id. 291 ; Clarke v. Davis, Misc. 608 ; 32 N. Y. Supp. 226. 1 Redf. 249; Mairs v. Freeman, 3 id. Weakness and undue influence. 181; Matter of Hurlbut, 26 Misc. 461; Mowry v. Silber, 2 Bradf. 133; Nex- 57 N. Y. Supp. 648. sen v. Nexsen, 3 Abb. Ct. App. Dec. — and impaired powers. Moore v. 360 ; 2 Keyes, 229 ; Matter of Ehminne, Moore, 2 Bradf. 261; Pilling v. Pill- 30 Misc. 21; 62 N. Y. Supp. 1006; ing, 45 Barb. 86 ; Carroll v. Norton, 3 Matter of Wilde, 38 Misc. 149. Bradf. 291; Lee v. Dill, 11 Abb. Pr. Intemperance and undue influence. 214 ; RoUwagen v. Rollwagen, 63 N. Y. O'Neil v. Murray, 4 Bradf. 311 ; Hagan 504; Children's Aid Soc. v. Loveridge, v. Sone, 68 App. Div. 60; 74 N. Y. 70 N. Y. 387; Matter of Moon, 28 St. Supp. 109; Matter of Hewitt, 31 Misc. Rep. 205; Matter of Coop, 24 id. 417; 81; 64' N. Y. Supp. 571; Matter of Paine v. Aldrioh, 38 id. 402; Dunham Jones, 5 Misc. 199: Matter of Rinte- V. Dunham, 63 App. Div. 264; 71 N. Y. len, 37 id. 462; 75 N. Y. Supp. 935. Supp. 330; Matter of Drake, 45 App. Sickness and habits of intemperance. Div. 206; 60 N. Y. Supp. 1020; Mat- McSorley v. McSorley, 2 Bradf. 188; ter of Ehminne, 30 Misc. 21; 62 N. Allen v. Public Adm'r, 1 id. 378; Y. Supp. 1006; Matter of Dixon, 42 Vreeland v. McClelland, id. 393; Brush App. Div. 481; 59 N. Y. Supp. 421; v. Holland, 3 id. 461; Gardner v. Gard- Matter of Wheeler, 56 St. Rep. 709; ner, 22 Wend. 526; Burritt v. Silli- 5 Misc. 279; Matter of McCarthy, 48 man, 16 Barb. 198; Ex p. Patterson, St. Rep. 315; Matter of Snelling, 136 4 How. Pr. 34; Matter of Tracy, 3 St. N. Y. 515; 49 St. Rep. 695; Matter of Rep. 239; Matter of Reed, 2 Connoly, O'Dea, 84 Hun, 591; 33 N. Y. Supp. 403; 20 N. Y. Supp. 91; Matter of 463. ^ Peek, 42 St. Rep. 898; Matter of — and paralysis. Matter of Iredale, Sutherland, 28 Misc. 424; 59 N.' Y. 53 App. Div. 45 ; 65 N. Y. Supp. 533 ; Supp. 989. Matter of Cruger, 36 Misc. 477; 73 Intoaiication at time of execution of N. Y. Supp. 812; Matter of Dixon, 42 will. Peck v. Cary, 27 N. Y. 9; 38 App. Div. 481; 59 N. Y. Supp. 421. Barb. 77; Julke v. Adam, 1 Redf. 454. — and deafness. Gombault v. Pub- Delirium tremens and delusions. lie Adm'r, 4 Bradf. 226; Mowry v. Waters v. Cullen, 2 Bradf. 354. See Silber, 2 id. 133. Brown v. Torrey, 24 Barb. 583. — and blindness. Weir v. Fitzger- Heart disease and delusions. Mat- aid, 2 Bradf. 42. ter of Richardson, 51 App. Div. 637; Loss of memory. Bleecker y. Lynch, 64 N. Y. Supp. 944. 1 Bradf. 458; Creely v. Ostrander, 3 Delusions, monomania, and specula- id. 107; Weir v. Fitzgerald, 2 id. 42; tive belief in witchcraft, mesmerisin, Mowry v. Silber, id. 133; Reynolds v. spiritualism, and absurd ideas gener- 175 The Probate of Wills. § 216. SUBDIVISION 5. FEAUD AND UNDUE INFLUENCE. § 216. Distinguished from testamentary incapacity. — A man's in- tellect may not be so weak as to render him incapable of making a will, yet it may be in so feeble a state as to make him an easy victim of the improper influences of unprincipled and designing persons. The finding that the testator had capacity to make a will is not inconsistent with the finding that the same was made under restraint or undue infiuence.*^ Undue influence must be an in- fluence exercised by coercion, imposition, or fraud, and not such as arises from gratitude, affection, or esteem ;^^ and its exertion upon the very act must be proved, by the party alleging it.^* ally. Thompson v. Quimby, 2 Bradf. 53 id. 208; Matter of Soden, 38 Mise. 449 ; as Thompson v. Thompson, 21 25. Barb. 107; Amer. Seamen's Friend Temporary periods of irrational ac- Soc. V. Hopper, 33 N. Y. 619; 43 Barb. Hon. Matter of Davis, 91 Hun, 209; 625; Gamble v. Gamble, 39 id. 373; 39 N. Y. Supp. 344; Matter of Buchan, Clarke v. Davis, 1 Eedf. 249; Stanton 16 Misc. 204; 38 N. Y. Supp. 1124; V. Wetherwax, 16 Barb. 259; La Bau Matter of Cornelius, 23 Misc. 434; 51 V. Vanderbilt, 3 Redf. 384; Children's N. Y. Supp. 877. Aid Soc. V. Loveridge, 70 N. Y. 387; Lunacy. Matter of Coe, 47 App. Bonard's Will, 16 Abb. (N. S.) 128; Div. 177; 62 N. Y. Supp. 376. Lathrop v. Borden, 5 Hun, 560; Fow- Imbecility and idiocy. Stewart v. ler v. Ramsdell, 4 Alb. L. J. 94; Mat- Lispenard, 26 Wend. 255; Blanehard ter of Keeler, 12 St. Rep. 148; Matter v. Nestle, 3 Den. 37; Person v. War- of Liney, 34 id. 700; Matter of Zieg- ren, 14 Barb. 488; Newhouse v. God- ler, 47 id. 491; Matter of Brush, 35 win, 17 id. 236; Petrie v. Shoemaker, Misc. 689; 72 N. Y. Supp. 421; Matter 24 Wend. 85; Pilling v. Pilling, 45 of Rohe, 22 Misc. 415 ; 50 N. Y. Supp. Barb. 86 ; Van Pelt v. Van Pelt, 30 id. 392. 134; Crolius v. Stark, 64 id. 112; 7 Eccentricity. Matter of Journeay, Lans. 311; Bleecker v. Lynch, 1 Bradf. 15 App. Div. 567 ; 44 N. Y. Supp. 548 ; 458 ; Davis v. Culver, 13 How. Pr. 62 ; aflfd., 162 N. Y. 611. Matter of Miller, 36 Misc. 310; 73 N. General insanity, moroseness, m^l- Y. Supp. 508; Matter of Loewenstine, ancholy, nervousness, gloomy, solitary 2 Mise. 323; 21 N. Y. Supp. 931. habits, violence, and apprehension of Suicide as evidence of insanity. being murdered and deprived of prop- Matter of Card, 28 St. Rep. 528; 8 erty. Morrison v. Smith, 3 Bradf. N. Y. Supp. 297. 209; Matter of Forman, 54 Barb. 274; 82 Reynolds v. Root, 62 Barb. 250; Matter of Ely, 16 Misc. 228 ; 39 N. Y. Marvin v. Marvin, 3 Abb. Ct. App. Supp. 177; Matter of McKean, 31 Dec. 192; 4 Keyes, 9. Misc. 703; 66 N. Y. Supp. 44; Matter 83 Matter of McGraw, 9 App. Div. of Murphy, 41 App. Div. 153; 58 N. Y. 372; 41 N. Y. Supp. 481; Matter of Supp. 450. E_ead, 17 Misc. 195; 40 N. Y. Supp. Feebleness and previous insanity. 974; Matter of Otis, 1 Misc. 258; 22 Matter of Rounds, 25 Mise. 101 ; Mat- N. Y. Supp. 1060 ; Matter of Johnson, ter of Widmayer, 34 id. 439; 69 7 Misc. 220; 27 N. Y. Supp. 649; Do- N. Y. Supp. 1014; Matter of Coe, 47 heny v. Lacy, 42 App. Div. 218; 59 App. Div. 177; 62 N. Y. Supp. 376; N. Y. Supp. 724; aflfd., 168 N". Y. 213. Matter of Evans, 37 Misc. 337; 75 N. 84 Matter of Murphy, 41 App. Div. Y. Supp. 491. 153; 58 N. Y. Supp. 450; Matter of Incipient paresis. Matter of Law- Pike, 83 Hun, 327; 31 N. Y. Supp. rence, 48 App. Div. 83 ; Hoey v. Hoey, 689 ; Matter of Bead, supra; Matter §217. The Probate of Wills. 176 § 217. Presumptions of fraud, etc. — It is the duty of the pro- ponent to satisfy the conscience of the court, and where there are circumstances of suspicion, as where the will was drawn up by a devisee,*® or by a person standing in a confidential relation, as a of McGraw, supra; Matter of Mabie, 5 Misc. 179; 24 N. Y. Supp. 855; Matter of Wheeler, 56 St. Rep. 709; Matter of Hurlbut, 48 App. Div. 91. So Lake v. Kanney, 33 Barb. 49; Vreeland v. McClelland, 1 Bradf. 393 ; Mowry v. Silber, 2 id. 133; Lansing V. Russell, 13 Barb. 510; Coffin v. Cof- fin, 23 N. Y. 9. And see Children's Aid Soe. v. Loveridge, 70 id. 387; Whelplev V. Loder, 1 Dem. 368. In Sears v. Schafer (6 N. Y. 268), it is said that in some cases undue influ- ence will be inferred from the nature of the transaction, and the exercise of occasional or habitual influence, citing several authorities. And in Tyler v. Gardiner (35 N. Y. 559), it is stated that when the beneficiary is the active agent in procuring the execution, by one in extremis, of an instrument dis- turbing dispositions previously settled, and where the transaction is sur- rounded by the usual indicia of undue influence, he is called upon to show that the inducements which profess- edly led to the change were not un- founded and illusory. In that case. Judge Porter says : " It is no sufli- cient answer to the presumption of imdue influence, which results from the undisputed facts, that the testa- trix was aware of the contents of the instrument and assented to its provi- sions. This was the precise purpose which the undue influence was em- ployed to accomplish;" and he quotes, with approbation, the language of Lord Eldon (14 Ves. 299), as follows: "The question is not whether she knew what she was doing, had done, or pro- posed to do, but how the intention was produced." Where it appears that the testatrix was in extremis and unable to speak at the time of the execution of the will; that the principal beneficiary acted as interpreter and made sugges- tions as to the dispositions to be made, which were answered by a nod, and that on an application for immediate probate one of the legatees was per- sonated by a stranger and the names of infant legatees suppressed, the facts raise such a suspicion of fraud as to require refusal of probate. (Matter of Graf, 10 Misc. 293; 31 N. Y. Supp. 682. ) In Nesbitt v. Loekman ( 34 N. Y. 167), the general rule was laid down that " where persons standing in a confidential relation make bargains with or receive benefits from the per- son for whom they were counsel, at- torney, agent, or trustee, the transac- tion is scrutinized with the extremest vigilance, and regarded with the ut- most jealousy. The cles^rest evidence is required that there was no fraud, influence, or mistake; that the trans- action was perfectly understood by the weaker party, and usually evidence is required that a third and disinterested person advised such party as to his rights. The presumption is against the propriety of the transaction, and the onus of establishing the gift or bargain to have been fair, voluntary, and well understood, rests upon the party claiming, and this in addition to the evidence to be derived from the execution of the instrument conveying or assigning the property. S. P., Kinne v. Johnson, 60 Barb. 69; Wade V. Holbrook, 2 Redf. 378; Mc- Laughlin's Will, id. 504; Brick v. Brick, 66 N. Y. 144; Horn v. Pullman, 72 id. 269; Demmert v. Schnell, 4 Redf. 409; Baker's Will, 2 id. 179; Legg v. Myer, 5 id. 628; Dickie v. Van Vleck', id. 284; Matter of Brush, 35 Misc. 689; 72 N. Y. Supp. 421; Matter of Mauhardt, 17 App. Div. 1; 44 N. Y. Supp. 836; Snook v. Sulli- van, 53 App. jDiv. 602 ; 66 N. Y. Supp. 24; afifd., 167 N. Y. 536. In Post V. Mason (91 N. Y. 539), the testator had full testamentary ca- pacity, and the will contained a legacy to the draughtsman, an attorney, who, at the time of the execution of the will, and for a long time previous, had been the counsel of the testator; — Held, that this alone did not raise u presumption, in aid of one seeking to overthrow the will, that the influence of the attorney was unduly exercised, nor did it, in the absence of evidence, warrant a presumption that the inten- tion of the testator was improperly, much less fraudulently, controlled; that it was for the plaintiff, therefore, in an action brought to set aside the 177 The Probate of Wills. § 217. family physician,^® or a clergyman,^^ or a guardian of the tes- tator;®* or where the testator was hlind,*^ or was unable to read or write, and was weak in body and mind, and susceptible to undue influence,®" and the will was not in harmony with his previously expressed intentions,'^ the ordinary presumption flowing from the fact of formal execution does not obtain, and the proponents must give aflirmative evidence that the testator knew its contents, and that it expressed his real intentions;®^ but any evidence is suifi- cient for this purpose which shows that the testator had full knowledge of the contents of the will, and executed it freely, and without undue influence, and large latitude will be allowed in the admission of any such evidence. But the law looks with a very jealous eye upon any one who, standing in a relation of confidence and influence with the testator, superintends or in any way influ- ences the testator's disposition of property, especially if such dis- position is to his personal advantage. The presumption is against the instrument.®^ But old age of a testator is not alone sufficient ground for presuming imposition.®* Secrecy and contrivance may be a badge of fraud in the execution of a ■will when they indicate coercion, persuasion, etc., of other persons, which influenced the testator. But when they can be clearly traced to the wishes of will, to give some other evidence tend- of Nolte, 10 Misc. 608 ; 32 N. Y. Supp. ing to show fraud or undue influence. 226. But the mere fact of a sudden S. P., Matter of Murphy, 48 App. change of testamentary intention is Div. 211; 62 N. Y. Supp. 785. not suflSlcient. (Matter of Green, 67 Undue influence will not be pre- Hun, 527 ; 20 N. Y. Supp. 538 ; Matter sumed from the mere fact that an ap- of Wheeler, 56 St. Rep. 709.) parent relation of master and servant 92 Lake v. Kanney, 33 Barb. 49 ; Del- existed between the legatee and testa- afield v. Parish, 25 N. Y. 9; Hayes v. trix, where it appears that they were Kerr, 19 App. Div. 91; 45 N. Y. Supp. relatives, sustaining close and friendly 1050, and cases above cited, relations to each other and that testa- 93 Matter of Welsh, 1 Redf . 238 ; trix performed the services voluntarily Leaycraf t v. Simmons, 3 Bradf . 35 ; and without salary. (Matter of Mur- Clark v. Fisher, 1 Paige, 171; Matter phy, 15 Misc. 208; 37 N. Y. Supp. of Paige, 62 Barb. 476; Voorhees v. 223. ) See Matter of Hurlbut, 48 App. Voorhees, 39 N. Y. 463 ; Allen v. Pub- Div. 91. lie Adm'r, 1 Bradf. 378; Bleecker v. 86 Crispell v. Dubois, 4 Barb. 393. Lynch, id. 458 ; O'Neil v. Murray, 4 87 Matter of Welsh, 1 Redf. 238; id. 311; Lee v. Dill, U Abb. Pr. 214. Marx V. McGlynn, 4 id. 455; 88 N. Y. In Tilby v. Tilby (2 Dem. 514), a will 357; Van Kleeck V. Phipps, 4 Redf. 99; to a supposed wife was refused pro- Matter of Monroe, 2 Connoly, 395. bate by reason of the fraud of the ben- 88 Limburger v. Ranch, 2 Abb. Pr. eficiary in concealing the fact that she (N. S.) 279. had a former husband living, her mar- 89 Weir v. Fitzgerald, 2 Bradf. 42. riage with testator being, therefore, 90 Van Pelt v. Van Pelt, 30 Barb. void. 134; Eollwagen v. EoUwagen, 63 N. 9* Butler v. Benson, 1 Barb. 526; Y. 504; Matter of Bedlow, 67 Hun, Matter of Williams, 46 St. Rep. 791- 408; 22 N. Y. Supp. 290. 19 N. Y. Supp. 778; Matter of Otis, 91 Lee V. Dill, 11 Abb. Pr. 214; 1 Misc. 258; 22 N. Y. Supp. 1060. Mowry v. Silber, 2 Bradf. 133 ; Matter 12 § 218. The Peobate of Wills. 178 the testator himself^ they cannot be received as having any tend- ency to impeach his testament.®^ § 218. Partiality and injustice. — Mere inofficiousness or injus- tice in the provisions of a will does not raise an inference of un- soundness of mind, or of undue influence. Although the char- acter of the provisions of the "will may be considered in connec- tion with the other evidence in trying the question of undue influ- ence, it is not in itself evidence of such influence. However partial or unjust a testator may seem to have been in his testa- mentary dispositions, if the instrument propounded was clearly his will, effect must be given to it.®* When it is said that there must be affirmative evidence that the person having the motive and opportunity to exercise undue influence, did so, it is not to be understood that there must be direct evidence of such undue influ- ence. Undue influence is not often the subject of direct proof. It can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the con- dition of his health and his mind, dependence upon, and subjec- tion to the control of, the person supposed to have wielded the influence, the opportunity and disposition of the person to wield it, and the acts and declarations of such person at the time of execution.®^ Hence, a discrimination against a son whose char- es Coffin V. Coffin, 23 N. Y. 9. In 97 Per Rapallo, J., Rollwagen v. Matterof LowmandMise. 43; 22N.Y. Rollwagen, 63 N. Y. 504. See also Supp. 1055), the only evidence to im- Sears v. Shafer, 6 id. 268; Tyler v. peach the will was that before its exe- Gardiner, 35 id. 559 ; McLaughlin v. cution one of the executors and lega- McDevitt, 63 id. 213; Reynolds v. tees, who was a nephew and a physi- Root, 62 Barb. 253 ; Matter of Wheeler, cian, administered to testator proper 56 St. Rep. 709; Porman v. Smith, 7 quantities of morphine to allay pain Lans. 443; Fagan v. Dugan, 2 Redf. caused by rheumatism in his legs; and 341; Deas v. Wandell, 3 Sup. Ct. (T. that deceased, who never married, of- & C.) 128; Demmert v. Schnell, 4 ten visited such nephew and left to his Redf. 409. But where there are a management some of his business, number of heirs, legatees, and next of Held, insufficient to justify the setting kin, the declarations of one of them aside of the probate. are not competent (Matter of Ken- 96Cudney v. Cudney, 68 N. Y. 148; nedy, 167 N. Y. 163; Matter of Camp- La Bau V. Vanderbilt, 3 Redf. 384; bell, 67 App. Div. 418), unless there is Marx v. McGlynn, 4 id. 455; Phillips proof of a conspiracy, since one ten- V. Chater, 1 Dem. 533; Hagan v. ant in common cannot admit away the Yates, id. 584; Matter of Bedlow, 67 rights of his cotenant and a will can- Hun, 408 ; 22 N. Y. Supp. 290 ; Matter not be admitted as to one and rejected of Harris, 19 Misc. 388 ; 44 N. Y. as to the other. Nor are the declara- Supp. 341 ; Dobie v. Armstrong, 160 N. tions of the testator competent to Y. 584; 55 N. E. Rep. 302; Matter of prove the facts of fraud and undue in- Woodward, 52 App. Div. 494; 65 N. Y. fluence. (Jackson v. ICniffen,i2 Johns. Supp. 405; Matter of Hurlbut, 48 App. 31; Waterman v. Whitney, 11 N. Y. Div. 91; 62 N. Y. Supp. 698; Matter 157; Matter of Metcalf, 16 Misc. 180; of Connor, 29 Misc. 391; 61 N. Y. 38 N. Y. Supp. 1131; Matter of Pal- Supp. 910, and cases cited infra. mateer, 78 Hun, 43; 28 N. Y. Supp. 179 The Probate of Wills. § 219. acter and course of conduct had displeased the testator for some years, though it may betoken a lack of affection and a sens© of justice, is not incompatible with mental soundness. And so, a discrimination in favor of a son, as against other children, to ■whom the testator bequeathed the greater part of his estate, is not of itself proof of mental unsoundness, although the motive in making such a disposition may have been the gratification of an inordinate ambition to perpetuate the success of a particular busi- ness enterprise, in which he had himself acquired a wide notoriety and a large fortune, by confiding it to the possession and control of a single individual bearing his name.** What the law terms undue infiuence must be such as overpowers the will of a testator, and subjects it to the will and control of another; it is not estab- lished by proof simply tending to show that the testator, act- ing from motives of affection or gratitude, gave his property to strangers to his blood.®' § 219. Opportunity and interest. — Undue influence will not be inferred from opportunity and interest, ■'^ or from the fact that 1062.) In Hagan v. Yates (1 Dem. man in no way related to her, but 584), the contestants, for the support upon the ground that he had at the of their allegations of undue influence risk of his own life saved her from exercised upon decedent in respect to accidental drowning, she leaving sur- his will, relied almost entirely upon viving a sister, a niece and two the facts that proponent, decedent's nephews, — Held not sufficient ground second wife, had opportunity to in- for refusing probate of her will. (Mat- fluence him, and that the will, while ter of Cleveland, 28 Misc. 369; 59 N. it made munificent provision for her, Y. Supp. 985.) was both ungenerous and unjust to the l Seguine v. Seguine, 4 Abb. Ct. App. family of his first wife. Held, no Dec. 191 ; Kinne v. Johnson, 60 Barb, proof. But where, in addition to op- 69; Van Hanswyck v. Wiese, 44 id. portunity and interest, it was shown 494 ; Clarke v. Davis, 1 Redf. 249 ; that the party in whose favor the will Turhune v. Brookfield, id. 220 ; Julke was made had refused to allow the one v. Adam, id. 454; Newhouse v. God- disinherited to have private inter- win, 17 Barb. 236; Cudney v. Cudney, views with the testatrix, this was 68 N. Y. 148; Qoffin v. Coffin, 23 id. held sufficient to set aside the will. 9; Matter of Martin, 21 Week. Dig. (Marvin v. Marvin, 3 Abb. Ct. App. 1; Matter of Smith, 3 St. Rep. 137; Dec. 192 ; 4 Keyes, 9. ) And see Matter of Clausmann, 9 id. 182 ; Mat- Bristed v. Weeks, 5 Redf. 529; Nexsen ter of Hatten, 10 id. 19; Matter of V. Nexsen, 3 Abb. Ct. App. Dec. 360. Phalen, 47 id. 44; 19 N. Y. Supp. 9SLa Bau v. Vanderbilt, 3 Redf. 358; Doheny v. Lacy, 42 App. Div. 384, and eases cited; Matter of Bon- 218; 59 N. Y. Supp. 724; affd., 168 ner, 33 Misc. 9; 67 N. Y. Supp. 1117. N. Y. 213; Matter of Seagrist, 1 App. See, to same effect, Bicknell v. Bick- Div. 615; affd., 153 N. Y. 682; Matter nell, 2 Sup. Ct. (T. & C.) 96; Deas v. of Keefe, 47 App. Div. 214; 62 N. Y. Wandell, 3 id. 128 ; McLaughlin V. Mc- Supp. 124 (revd., on other grounds Devitt, 63 N. Y. 213. 164 N. Y. 352) ; Matter of Gihon 44 99 Matter of Snelling, 136 N. Y. 515; App. Div. 621; affd., 163 N. "S. 595; Matter of Williams, 46 St. Rep. 791; Matter of Murphy, 41 App. Div. 153- 19 ]Sr. Y. Supp. 778; Matter of BoUes, 58 N. Y. Supp. 450; Matter of Spratt 37 Misc. 562; 75 N. Y. Supp. 1062. 4 App. Div. 1; Matter of Bolles, 37 The selection by a testatrix as the Misc. 562; 75 K Y. Supp. 1062. principal object of her bounty, of a Where, however, interest and op- §219. The Probate of Wills. 180 testator was weak and easily influenced.'' Wliile it may be in- ferred from circumstances, the circumstances must be such, as to lead justly to the inference that undue influence was employed, and that the will did not express the real wishes of the testator.^ It is said that one has a right by fair argument or persuasion, to induce another to make a will and even to make it in his own favor.* Influence exerted only to give effect to the testator's previously declared intention of producing equality between brothers or their families in the distribution of the estate, is not portunity are shown and testimony is adduced tending to show a disposition to use undue influence, the burden is east upon the person charged with ex- ercising it to show freedom therefrom in the dispositions of property made in the will. (Matter of Wheeler, 5 Misc. 279.) In Matter of Jones (N. Y. Law J., Aug. 4, 1890), the con- testant claimed that, the fact of illicit sexual relations existing between the testatrix and a person who eoncededly influenced her in the scheme of the will, though the latter derived no bene- fit under it, raised a presumption of undue influence, and cited Dean v. Negley, 45 Pa. St. 312. But Ransom, S., held that the doctrine of that case had never been accepted in this State. " Where a testator makes a mistress the beneficiary of his bounty when he has a wife living, it only suggests the necessity of the closest scrutiny in reference to the facts attending the execution and preparation of the will, but it does not raise a presumption which shifts the burden of proof upon the proponent. In this case no such state of facts exists, for the person with whom it is said the decedent held the meretricious relation, is not a beneficiary under the will." 2 Matter of Bedlow, 67 Hun, 408 • 22 N. Y. Supp. 290. 3 Brick V. Brick, 66 N. Y. 144; Baker's Will, 2 Itedf. 179; Colhounv. Jones, id. 34; Matter of Drake, 45 App. Div. 206; 60 N. Y. Supp. 1020. It is not necessary that the precise mode of committing the fraud should be proved. (McLaughlin v. McDevitt, 63 N. Y. 213.) To prove undue in- fiuenee by duress or threats it is not necessary to show that the duress was visible or physically exercised at the moment of the execution. It is enough that the duress existed shortly before and continued in its domination over the mind at the time of the execution of the will. (Fagan v. Dugau, 2 Eedf. 341.) It is only where the relation between the parties is one of depend- ence on the one hand and control on the other that the presumption of un- due influence will arise. Merely con- fidential and affectionate relations have no such effect. ( Tucker v. Tucker, 45 St. Rep. 458; 18 N. Y. Supp. 629.) In Matter of Cline (N. Y. Law J., Jan. 30, 1890), testatrix was a feeble old woman, more than eighty years of age, and entirely dependent upon the adopted brother of the sole legatee, who was a stranger to her blood, and who was practically unknown to her, although nearly forty years before, she had known the legatee as a child. Probate was denied. *Blanchard v. Nestle, 3 Den. 37. Even the earnest persuasions of the interested and self-seeking will not necessarily vitiate a testamentary in- strument by which they are largely benefited, if it appears that the tes- tator, in selecting them as the re- cipients of his bounty, has acted on his own judgment, and not merely ■jiven expression to the purposes of others, by whose will his own has been subdued. (Seiter v. Straub, 1 Dem. 264.) See Tucker v. Field, 5 Redf. 139 ; Merrill v. Eolston, id. 220 ; Tuni- son V. Tunison, 4 Bradf. 138; Matter of Huestis, 23 Week. Dig. 224; Matter of Cruger, 36 Misc. 272; Matter of Seagrist, 1 App. Div. 615; 37 N. y. Supp. 496; affd., 153 N. Y. 682; Matter of Spratt, 4 App. Div. 1; 38 K Y. Supp. 329; Matter of Hal- bert, 15 Misc. 308; 37 N. Y. Supp. 757; Matter of Dwyer, 29 Misc. 382; 61 N. Y. Supp. 903; Matter of McGill, 26 Misc. 102; 56 N. Y. Supp. 856; Matter of Journeay, 80 Hun, 315; 30 N. Y. Supp. 80 ; Matter of Bonner, 33 JTisc. 9 ; 67 N. Y. Supp. 1117. 181 The Pkobatk of Wills. § 219. undue.^ The influence exercised must amount to moral coercion, which restrained independent action and destroyed free agency; or the importunity must have been such as the testator was un- able to resist, and constrained him to do that which was against his free will and desire.* Some of the cases illustrative of the foregoing general prin- ciples are collected in a note.'^ 5 Gardiner v. Gardiner, 34 N. Y. 520; Matter of Brunor, 21 App. Div. 155; Wait v. Breeze, 18 Hun, 403; 259; Matter of Gihon, 60 N. Y. Supp. Matter of Clark, 40 id. 233; Ewen v. 65; Matter of Stapleton, 71 App. Div. Pcrrine, 5 Redf. 640. 1 ; 75 N. Y. Supp. 657. 6 Children's Aid Soc. v. Loveridge, — Bi/ child and legatee. Leayoraft 70 N. Y. 387; Brick v. Brick, 66 id. v. Simmons, 3 Bradf. 35; Mowry v. 144; RoUwagen v. Rollwagen, 63 id. Silber, 2 id. 133; Bleecker v. Lynch, 1 504; Matter of Martin, 98 id. 193; id. 458; Mairs v. Freeman, 3 Redf. Matter of Burke, 2 Redf. 239; Wade v. 181; Cudney v. Cudney, 68 N. Y. 148; Holbrook, id. 378; Marx v. McGlynn, Tucker v. Field, 5 Redf. 139; Matter 88 N. Y. 357; Post v. Mason, 91 id. of Buckley, 16 St. Rep. 983; Banta v. 539; Rider v. Miller. 86 id. 507; Mat- Willets, 6 Dem. 84; Figueira v. Taaf e, ter of Gross, 7 St. Rep. 739 ; Matter id. 166 ; Peck v. Belden, id. 299 ; Mat- of Snelling, 136 N. Y. 515. ter of Mondorf, 110 N. Y. 450; Matter 7 Illustrations of the principles of Bernsee, 45 St. Rep. 11; Matter of stated in the text may be found in the Bedell, 32 id. 1022; Led with v. Chaf- following cases. Doubtless many other fey, 18 App. Div. 115; 45 N. Y. Supp. cases might be added: 612. Undue influence, general principle. — By brother or sister and legatee. Matter of Bedlow, 67 Hun, 408 ; Mat- Matter of Green, 20 N. Y. Supp. 538 ; ter of Green, 67 id. 527 ; Wightman v. Matter of Manton, 32 App. Div. 626 ; Stoddard, 3 Bradf. 393; Delafield v. 52 N. Y. Supp. 511: Matter of Skaats, Parish, 25 N. Y. 9; Sherman's Appeal, 74 Hun, 462; 26 N. Y. Supp. 494. V6 Abb. Pr. 397, note ; Julke v. Adams, — By physician. Crispell v. Dubois, 1 Redf. 454 ; Clarke v. Davis, id. 249 ; 4 Barb. 393 ; Colhoun v. Jones, 2 Redf. Turhune v. Brookfield, id. 220; Van 34; Matter of Lowman, 1 Misc. 43; 22 Hanswyek v. Wiese, 44 Barb. 494; N. Y. Supp. 1055; Matter of Cornell, Seguine v. Seguine, 4 Abb. Ct. App. 43 App. Div. 241; 60 N. Y. Supp. 53; Dec. 191; Gardiner v. Gardiner, 34 N. aflFd., 163 N. Y. 608; Matter of Keefe, Y. 155; Tyler v. Gardiner, 35 id. 559; 27 Misc. 618; 59 N. Y. Supp. 490. Rollwagen v. Rollwagen, 3 Hun, 121 ; — hy grandson, a legatee. Carroll 63 N. Y. 504; Matter of Westurn, 60 v. Norton, 3 Bradf. 291; Matter of Hun, 298; 14 N. Y. Supp. 753; Matter Van Houten, 17 Misc. 445; 41 N. Y. of Portingall, 39 St. Rep. 903; Mat- Supp; 250. ter of Connor, 27 id. 905 ; Matter of — • hy niece or nephew and legatee. De Baum, 32 id. 279 ; Ross v. Gleason, Matter of Hedges, 57 App. Div. 48 ; 67 26 id. 501. N. Y. Supp. 1028; Chambers v. — hy wife. Brush v. Holland. 1 Chambers, 61 App. Div. 299; 70 N. Y. Bradf. 461; Tunison v. Tunison, 4 id. Supp. 483. 1 38 ; Delafield v. Parish, 25 N. Y. 9 ; — 6?/ son-in-law and legatee. Mat- Gardiner V. Gardiner, 34 id. 155; ter of Journeay, 15 App. Div. 567; 44 Tyler v. Gardiner, 35 id. 559; Brick N. Y. Supp. 548; afifd., 162 N. Y. 611. V. Brick, 66 id. 144; Shields v. In- — hy business manager. Matter of gram, 5 Redf. 346; Matter of Clark, Clark, 5 Misc. 68; Hayes v. Kerr, 19 40 Hun, 233; Matter of Thorne, 26 App. Div. 91; 45 N. Y. Supp. 1050. St. Rep. 240; Matter of Birdsall. 34 — iy paramour. Matter of Rand, id. 626; Matter of Lyddy, 24 id. 607; 28 Misc. 465; 59 N. Y. Supp. 1082; IMatter of Filers, 29 id. 58 : Matter of Matter of Westerman, 29 Misc. 409 ; Nolte, 10 Misc. 608; 32 N. Y. Supp. 61 N. Y. Supp. 1065; Matter of Evans, 226. 37 Misc. 337; 75 N. Y. Supp. 491. — hy husband. Baker's Will, 2 — by housekeeper. Matter of Ham- Redf. 179; Ross' Will, 20 N. Y. Supp. ilton, 29 Misc. 724; 62 N. Y. Supp. 820. § 220. The Probate of Wills. 182 SUBDIVISIOlsr 6. MISTAKES WHICH INVALIDATE A WILL. §220. Inquiry as to • testamentary intention. — An objection that the document propounded as a 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 an objection is sustained, it is tantamount to a decision that the instrument, or a particular clause of it, is not the -will of the decedent. Conform- ity with the testator's intention is a part of the factum of the — iy executor and legatee. Vree- — hy clergyman, whose church was land v. McClelland, 1 Bradf. 393; a beneficiary. Langton's Estate, 1 Booth V. Kitchen, 3 Redf. 52; Matter Tuck. 301; Merrill v. Rolston, 5 Redf. of Carver, 3 Misc. 567 ; 23 N. Y. Supp. 220 ; Matter of Monroe, 2 Connoly, 753; Matter of Sutherland, 28 Misc. 395. 424; 59 N. Y. Supp. 989; Matter of — ■ by father of infant legatee. Fox, 9 Misc. 661 ; 30 N. Y. Supp. 835. O'Neil v. Murray, 4 Bradf. 311; — by legal adviser and legatee. Burke's Will, 2 Redf. 239 ; Hazard v. Wilson V. Moran, 3 Bradf. 172; Mat- Hazard, 5 Sup. Ct. (T. & C.) 79. ter of Edson, 70 Hun, 122; 24 N. Y. — ■ by a legatee not next of kin. Supp. 71; Matter of Murphy, 48 App. Weir v. Fitzgerald, 2 Bradf. 42; Div. 211; 62 N. Y. Supp. 785; Clark Hutohings v. Cochrane, id. 295. See V. Schell, 84 Hun, 28; 31 N. Y. Supp. Lansing v. Russell, 13 Barb. 510; Mat- 1053; Matter of Suydam, 84 Hun, 514; ter of Buckley, 16 St. Rep. 983; Mat- 32 N. Y. Supp. 449; afifd., 152 N. Y. ter of Pike, 83 Hun, 327; 31 N. Y. 639; Matter of Read, 17 Misc. 195; Supp. 689; Clark v. Schell, 84 Hun, 40 N. Y. Supp. 974; Matter of Smith, 28; 31 N. Y. Supp. 1053. 36 Misc. 128 ; Matter of Rintelen, 37 — ■ by nurse. Neiheisel v. Toerge, 4 id. 462; 75 N. Y. Supp. 935. Redf. 328; Matter of King, 29 Misc. — by spiritual adviser. In re 268; Matter of Lacy, 35 id. 581; 71 Welsh, 1 Redf. 238; McGuire v. Kerr, N. Y. Supp. 1129. 2 Bradf. 244; Marx v. McGlynn, 4 Undue influence to induce charitable Redf. 445; 88 N. Y. 357; Merrill v. bequests. Wightman v. Stoddard, 3 Rolston, 5 Redf. 220; Matter of Hoi- Bradf. 393; McLaughlin v. McDevitt, lohan, 24 St. Rep. 449; 5 N. Y. Supp. 63 N. Y. 213; Burritt v. Silliman. 16 342. Barb. 198; Marx v. McGlynn, 4 Redf. — by draughtsman of will, lohose wife 455 ; 88 N. Y. 357 ; Matter of Monroe, or children are legatees. Lake v. Ran- 2 Connoly, 395 ; Matter of Shannon, ney, 33 Barb. 49. See Coffin v. Cfoffin, 11 App. Div. 581; 42 N. Y. Supp. 670; 23 N. Y. 9 ; Burke's Will, 2 Redf. 239 ; Matter of Johnson, 28 Misc. 363 ; 59 Reeve v. Crosby, 3 id. 74; Matter of N. Y. Supp. 906. Sheldon, 40 St. Rep. 369; Matter of Incapacity and undue influence. Miller, 36 Misc. 310; 73 N. Y. Supp. Allen v. Public Adm'r, 1 Bradf. 378; 508. Hutchings v. Cochrane, 2 id. 295; — • by guardian over minor ward. Thompson v. Quimby, id. 449 ; Bristed Limberger v. Rauch, 2 Abb. Pr. (N. v. Weeks, 5 Redf. 529. S.) 279; Matter of Bosch, N. Y. Daily Age and undue influence. Butler v. Reg., July 12, 1883; Matter of Car- Benson, 1 Barb. 526; Matter of Ro- land, 15 Misc. 355; 37 N. Y. Supp. maine, 6 N. Y. Leg. Obs. 156; Weir v. 922. Fitzgerald, 2 Bradf. 42; Maverick v. — by guardian, a draughtsman and Reynolds, id. 360 ; Creely v. Ostrander, beneficiary. Matter of Paige, 62 Barb. 3 id. 107 ; Matter of Soule, 1 Connoly, 476; Bristed V. Weeks, 5 Redf. 529. 18; Matter of Bartholick, id. 373; — -by parent over minor. Nutting Matter of Kahn, id. 510: Matter of V. Pell, 11 App. Div. 55; 42 N. Y. Johnson, id. 518 ; Matter of McCarthy, Supp. 987. 20 N. Y. Supp. 581; 48 St. Rep. 315; 183 The Peobate of Wills. § 220. will.® The Surrogate's Court has power, therefore, to determine, upon a probate proceeding, whether the instrument is, in all its parts, according to the real wishes and intention of the decedent. This power is distinct from the power to expound the meaning and effect of wills, as to which we shall speak more fully on a subsequent page. Where, therefore, by reason of physical prostration, or impair- ment of the faculties, or weakness of capacity, or other circum- stances, a doubt is raised whether the will propounded is according to the real testamentary intentions of the testator, it becomes competent, and even necessary, to inquire how far, in fact, the will conforms to the real wishes of the deceased. The testator may have had capacity to make a will, and may have intended a testamentary disposition of his property, but by a mistake of the lawyer who drew it, or of the scrivener who engrossed it, the document, as propounded, may contain a provision contrary to the real intention of the testator. In such cases it is competent to receive proof of the instructions given by the deceased, his declarations, the position of his estate, his previous testamentary intentions, the condition of his family relations, the state of his affections, and a variety of other facts bearing upon the ascertain- ment of the fact whether the particular instrument conformed to the real intentions of the deceased. This is not admitting parol testimony to vary the will, but to ascertain whether it is really the will of the decedent.® And parol evidence is always admissi- ble to impeach the validity of a will, or any part of it, though never to contradict, vary, or control the words of a will, except in certain cases to explain the meaning of the words used by the Matter of Bishop, 31 id. 314; Matter Segulne v. Seguine, 4 Abb. Ct. App. of Stewart, 10 N. Y. Supp. 744. Dec. 191; Clapp v. FuUerton, 34 N. Y. Secrecy, artifice, and contrivance as 190; Clarke v. Davis, 1 Redf. 249; hadges of fraud. Coffin v. Coffin, 23 Clarke v. Fisher, 1 Paige, 171; Wat- N. Y. 9; Blanehard v. Nestle, 3 Den. son v. Donnely, 28 Barb. 653; La Bau 37; Tunison V. Tunison, 4 Bradf. 138. v. Vanderbilt, 3 Redf. 384; Deas v. Duress and threats. Fagan v. Du- Wandell, 1 Hun, 120 ; Matter of Lasak, gan, 2 Redf. 341; Matter of Spratt, 17 57 id. 417; 131 N. Y. 624; Matter of App. Div. 636 ; 45 N. Y. Supp. 273. Monroe, 2 Connoly, 395 ; Matter of Mistake in or unequal provisions of Williams, 46 St. Rep. 791. will. Burger v. Hill, 1. Bradf. 360; 8 Blackwood v. Darner, 2 Phillim. Mowry v. Silber, 2 id. 133 ; Waters v. 458, and other cases cited in Williams Cullen, id. 354 ; Creely v. Ostrander, 3 on Exrs., 406, 408. See 1 Jarman on id. 107; O'Neil v. Murfay^ 4 id. 311; Wills, 415; 1 Redf. on Wills, 499. Morrison v. Smith, 3 id. 209 ; Wight- 9 Burger v. Hill, 1 Bradf. 360. Com- nian v. Stoddard, id. 393; Coffin v. pare Matter of Chapman, 27 Hun, 573. Coffin, 23 N. Y. 9 ; Jackson v. Jackson, See 2 Whart. on Ev., § 992 ; Abbott's 39 id. 153; American Seamen's Friend Trial Ev. 135; 1 Jarman on Wills Soc. V. Hopper, 33 id. 619; 43 Barb. (415) ; 1 Redf. on Wills, 499. 625; Gamble v. Gamble, 39 id. 373; § 221. The Probate of Wills. 184 testator. The importance of exercising this jurisdiction in pro- ceedings for the probate of wills of personal property is apparent, when we consider the effect of such probate as conclusive of the validity of the will.^* § 221. Immaterial error. — But an error as to a matter of fact, unless of such a character as to affect the testamentary inten- tion, — e. g., an overstatement of the amount of certain advances,^-' which the will directed to be deducted from a legacy, — is not a ground for denying probate. If the amount is misstated, the error may, perhaps, be corrected on the settlement of the estate, wien the amount is to be deducted from the share of the bene- ficiary, or on an application to pay off the advance and stop the interest. A mere accidental omission in a will, unless it clearly appears that the omission, as the wUl stands, defeats entirely the testator's intention, is not a ground for refusing probate. Nor has the court any power to correct the mistake by inserting any- thing in the will, or otherwise reforming it. The extent of its jurisdiction is the negative power of refusing probate to the in- strument, in a proper case.-'^ 10 See Hill v. Burger, 10 How. Pr. dolph & T.'s notes, pp. 717, 723. A 264; Burger v. Hill, 1 Bradf. 360; mistake made in the person named as Sanders v. Stiles, 2 Redf. 1. In Bur- executor will not avoid a will; the ger V. Hill (swpra ) , the decedent had will should be proved, and an adminis- suffieient testamentary capacity, but trator with the will annexed ap- his mind was enfeebled by disease, pointed. (Matter of Finn, 1 Misc. 280; Shortly before his death, he gave in- 22 N. Y. Supp. 1066.) Parol evidence structions to counsel in regard to his is admissible to correct the date of a will; and on directing the draughts- will. (Matter of Haviland, 17 Misc. man to give all his personal property 193; 40 N. Y. Supp. 973.) to P., and all his real property to his izCreely v. Ostrander, 3 Bradf. 107, mother and sisters, was asked by tho 114. Compare Matter of Chapman, 27 counsel whether he had any real prop- Hun, 573. In Matter of Forbes (60 erty, and replied affirmatively, specify- id. 171; 14 N. Y. Supp. 460; affd., ing his store in Greenwich street, New 128 N. Y. 640), the probate of a will York, which was, in fact, leasehold was resisted because the name of a son property. The will was drawn accord- of the testator, as a recipient for a ingly; but it was held, that as the portion of the income of the trust es- will did not correctly express the tes- tate created by the will, was omitted, tator's testamentary intentions, it and the claim was made that such could be admitted to probate only omission was a mistake; — Held, that under a limited decree, establishing its it did not justify the rejection of the validity, except as to the leasehold will. So, too, in Matter of Tousey (34 premises, which, not being bequeathed. Misc. 363; 69 N. Y. Supp. 846), where would go to the next of kin. the will recited that the testatrix had iiBoell V. Schwartz, 4 Bradf. 12. no "direct heirs." See 1 Jarman on Wills (412), Ran- 185 The Probate of Wills. §§ 222, 223. SUBDIVISION 7. KEVOCATION AND ALTERATION OF WILL. § 222. Direct revocation. — It sometimes becomes a question in proceedings for the probate of a mil, or even upon an accounting by the executor,^^ whether or not the alleged will was revoked by the testator. When a will has once been duly executed, it re- mains as a disposition of the testator's property, to take effect at his death, and can only be revoked in the manner provided in the statute, at the time the revocation was effected.^* The statute declares that no written will, nor any part of it, can be expressly revoked or altered, except, either (1), " by some other will in writing, or some other writing of the testator, declar- ing such revocation or alteration, and executed with the same for- malities with which the will itself was required by law to be exe- cuted; or (2) unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose 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, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses." ^^ Not only must a written revocation, to be valid, be executed with the same formalities with which the will itself is required by law to be executed,''® but a codicil cannot be deemed effective to re- voke a prior will, unless it is proved to have been a valid testa- mentary disposition.*^ § 223. Revocation by later will or codicil. — A. revocation in writ- ing may be either by a clause of revocation in a later will or other 13 Davis' Estate, 1 Tuck. 107. 7 Paige, 97.) A writing stating that l*As to how a will, executed iefore a, specific sum was received in lieu of the statute, could be revoked after the a devise in a will does not of itself re- statute took eflFect, see Sherry v. Lo- voke the devise; the devise will not zier, 1 Bradf. 437; Matter of Gris- stand where the will was unaltered, wold, 15 Abb. Pr. 299. (Burnham v. Comfort, 108 N. Y. 535.) 15 2 R. S. 64, § 42. For the distine- As to revocation of mutual wills, see tion between the revocation of provi- Edson v. Parsons, 155 N. Y. 555. sions in a will, and the ademption or 16 Nelson v. Public Adm'r, 2 Bradf. satisfaction thereof, see Langdon v. 210; Ex p. Lindsay, id. 204; Leay- Astor, 16 N. Y. 41. At common law, craft v. Simmons, 3 id. 35; McLoskey revocation of a devise could not be v. Reid, 4 id. 334; Langdon v. Astor, proved by parol. (Jackson v. KniflFen, 16 N. Y. 9; Barry v. Brown, 2 Dem. 2 Johns. 31.) All that can be shown 309; Dyer v. Erving, id. 160. are intrinsic circumstances, showing a iTDelafield v. Parish, 25 N. Y. 9; change in the subject of the devise. Matter of Johnston, 23 N. Y. Supp. but nothing more. (Adams v. Winne, 355. §•223. The Peobate of Wills. 186 instrument^'* in writing, executed in conformity with the statute, or it may be implied from the fact that a later will is inconsistent with the one already executed. If the later will contains a clause revoking a former will, then the former will is rendered abso- lutely nugatory, although the later will does not dispose of the property embraced in the first ;^® but if the later will contains no such revoking clause, then the former vrill is revoked pro tanto only, i. e., only so far as it is inconsistent with the latter one.^ On the same principle, a codicil is not a revocation of a will fur- ther than in respect to provisions in the will inconsistent with those of the codicil.^' The rule is, that a codicil will not operate as a revocation beyond the clear import of its language; and an expressed intention to alter a will in one particular negatives an intention to alter it in any other respect.^ But a will which makes a full disposition of all the testator's property, renders use- less, and therefore amounts to a total revocation of, every prior vsdll.^^ And an inconsistent devise in a later will is a revocation of the other devise in the earlier.^ The mere existence, how- ever, of a later will, is not necessarily a revocation of a former 18 Matter of Backus, 49 App. Div. 410; 63 N. Y. Supp. 544. See Matter of Barnes, 70 App. Div. 523; 75 N. Y. Supp. 373. 19 Matter of Thompson, 11 Paige, 453. See Pinckney's Estate, 1 Tuck. 436. So a clause may revoke, pro tanto, a, prior clause of the same will. (Tuttle V. Heiderman, 5 Redf. 199.) 20 Nelson v. McGiffert, 3 Barb. Ch. 158 ; Brant v. Wilson, 8 Cow. 56 ; Rob- inson V. Smith, 13 Abb. Pr. 359; Me- Loskey v. Reid, 4 Bradf. 334. The pro- visions of the Code as to what kind of evidence is necessary to prove a lost will, do not apply where it is sought to prevent probate by showing the ex- istence of a revoking clause in a will that has since been lost. (Colligan v. McKernan, 2 Dem. 421.) 21 Conover v. Hoffman, 15 Abb. Pr. 100; Brant v. Wilson, 8 Cow. 56. See Cooper V. Heatherton, 65 App. Div. 561. But a bequest in a will is super- seded by the execution of a codicil con- taining a different disposition of the same property. (Alvord v. Sherwood, 21 Misc. 354.) A void disposition in a, codicil repugnant to a valid one in a will does not revoke the former one, the codicil not containing an express revocation of the will. (Altroek v. Vandenburgh, 54 St. Eep. 327.) 22 Wetmore v. Parker, 52 N. Y. 451; Viele V. Keeler, 129 id. 190; 41 St. Eep. 187. See Appleton v. Fuller, id. 386; 16 N. Y. Supp. 353. In Mat- ter of Lockwood (43 St. Eep. 618; 17 N. Y. Supp. 771), the will provided for a certain disposition of the residu- ary estate and that a sum of money should be retained to pay legacy taxes and administration expenses, but the codicil, created trusts and directed the balance to be paid to legatees, with a provision that the codicil should con- trol where it conflicted with the will. Held, that the specific nrovision for legacy taxes was annulled. 23 Simmons v. Simmons, 26 Barb. 68; Van Wert v. Benedict, 1 Bradf. 114. An irrevocable will may not be admitted to probate in the face of a later testamentary paper expressly re- voking it. (Matter of Gloucester, 32 St. Eep. 901.) If the first will was made for a valuable consideration, its provisions may be enforced against his estate as a binding contract, in a court of equity; but a Surrogate's Court has no jurisdiction to deal with it. (lb.) See Edson v. Parsons, 155 N. Y. 555. 24 Barlow v. Coffin, 24 How. Pr. 54. 187 The Peobate of Wills. § 224. will ; so that, where the later will has been lost or destroyed, and its provisions cannot be ascertained, the mere fact that such a will was duly executed is not a ground for refusing probate of a for- mer will.^^ When it clearly appears, however, that a subsequent ■will, duly executed, contained a revocation clause, though the will itself cannot be found,^ or where the proof of execution of the later will is insufficient,^^ probate will be refused. § 224. Burning, tearing, obliterating, etc., of will. — Revocation of a will may be accomplished by burning, tearing, canceling, obliterating or destroying the instrument itself with the intent of revoking the same, in the manner provided in the statute. It is only when the act is done by another person that the fact of injury or destruction, together with the direction and consent of the testator, are to be proved by at least two witnesses.^* The revo- cation by destruction or cancellation must extend to the whole will and not to a part of it only. Where a will is found among the testator's papers with his signature and the name of the prin- cipal legatee partially obliterated, there is a presumption of revo- cation by cancellation.^ In order to constitute revocation, com- plete destruction or cancellation of the will is not necessary. Tearing the will into several fragments is sufficient, although the fragments are capable of being restored.^* But revocation of a particular provision or clause of the will cannot be effected by merely canceling or erasing such clause, or making interlinea- tions which change its character.*' If a particular clause is can- celed or altered, the will should be reacknowledged, to give effect to the change. In a case of an unattested interlineation, erasure or other alteration either by the testator or a stranger, 26 Nelson v. MoGiffert, 3 Barb. Ch. contained the disposing part and the 158; Matter of Williams, 34 Misc. 748; other the signature and attestation 70 N. Y. Supp. 1055. See Pinckney's clause, proved to have been duly exe- Estate, 1 Tuck. 436; Clark v. Kings- cuted, found in the desk of the soriv- ley, 37 Hun, 246. ener who drew it, but with the separa- 26 Moore v. Griswold, 1 Eedf. 388; tion unexplained, in which was also Matter of Myers, 28 Misc. 359; 59 found a memorandum signed by the N. Y. Supp. 908; Matter of Forbes, 24 testatrix but not duly executed as -<\, id. 841. And see Bloomer v. Bloomer, will, for a diflferent disposition of the 2 Bradf. 339. property. Held not to have been re- 27 Matter of, Barnes, 70 App. Div. voked, and to be entitled to probate. 523; 75 N. Y. Supp. 373. (Matter of Ackels, 23 Misc. 321; 52 28 Timon v. Claffy, 45 Barb. 438. N. Y. Sudp. 246. ) 29 Clark's Will, 1 Tuck. 445. See siLovell v. Quitman, 88 N. Y. 377; Matter of Alger, 38 Misc. 143. Quinn v. Quinn, 1 Sup. Ct. (T. & C.) 30 Sweet V. Sweet, 1 Eedf. 451. Com- 437; Matter of Prescott, 4 Redf. 179; pare Matter of Forman, 54 Barb. 274. Clark v. Smith, 34 Barb. 140; Gugel But where a will was written on two v. Vollmer, 1 Dem. 484. So far as it separate sheets of paper, originally be- holds otherwise, the case of McPhevson ing one sheet of legal cap, one of which v. Clark, 3 Bradf. 92, is overruled. § 225. The Probate of Wills. 188 after the execution of the instrument, the court "will disregard the change, and probate the will according to its original language.^* A question is always likely to arise whether an erasure or inter- polation was made before or after the execution of the instru- ment. The rule is that, in the absence of suspicious circum- stances, no presumption arises that an interlineation or erasure, fair upon its face and entirely unexplained, was fraudulently made after the will was executed. ^^ But material alterations will not be presumed to have been made prior to execution,^* and in the absence of direct evidence as to when the cutting, tearing, or the obliteration and interlineations were made, circumstances may be sufficient to justify an inference that they were done before, and not after, the execution of the will.^ § 225. Intent to revoke. — To effect a revocation by destruction or cancellation of the instrument, it is essential that there should be an intention, as well as a physical act; the mere act of cancel- ing a will is not a revocation, unless it be done animo revocandi?^ But a mere intention to revoke, however strongly declared, is of no effect unless carried out by some act amounting to a cancella- tion or revocation.^^ The act, however, being done, the inten- tion may be inferred from the circumstances attending the act. Thus, the fact that the instrument was last seen in the decedent's 32 Matter of Wilcox, 46 St.\ Eep. 33 So held, admitting the will to pro- 877; Matter of Carver, 3 Misc. 567; 23 bate, where testator's signature had N. Y. Supp. 753; Matter of Lang, 9 been obliterated, then rewritten. (Mat- Misc. 521; 30 N. Y. Supp. 388. In ter of Wood, 32 St. Rep. 286; Matter Quinn v. Quinn {supra), the testator, of Tighe, 24 Misc. 459; 53 N. Y. Supp. after he had executed his will, made, 718; Matter of Dwyer, 29 id. 382; 61 in his own handwriting, various al- N. Y. Supp. 903; Grossman v Cross- terations, erasing some legacies alto- man, 95 N. Y. 145. gether, and changing the names of 3* Matter of Barber, 92 Hun, 489 ; some of the legatees. He also changed 37 N. Y. Supp. 235. one of the executors. Held, that the 35 Matter of Homes, 32 St. Eep. 902 ; will as originally executed should be Matter of Potter, 33 id. 936; 12 N. Y. upheld. In Wetmore v. Carryl (5 Supp. 105; Matter of Carver, 2'3 id. Redf. 544), the will had been admit- 753; Matter of Voorhees, 6 Dem. 162; ted to probate and recorded as al- Matter of Barber, supra. Interlinea- tered. An application to change the tions need not be noted at the foot record by substituting the original for of the instrument, if the place where the altered form of the will was they should appear is clearly desig- granted. Compare Dyer v. Erving, 2 nated. (Matter of Wliitney, 90 Hun, Dem. 160. In Stevens v. Stevens (6 138; 35 N. Y. Supp. 798; revd. on Dem. 262), the testatrix, after the other grounds in 153 N. Y. 259.) execution of a will, desired to make 36 Jackson v. Holloway, 7 Johns, certain further bequests which were 394; Jackson v. Potter, 9 id. 312; inserted by the draughtsman, there Sweet v. Sweet,. 1 Redf. 451; Smith v. being no re-execution or republication. Wait, 4 Barb. 28. Held, that the instrument should be 37 Clark v. Smith, 34 Barb. 140. admitted as executed and without the interpolated clause. 1S9 The Probate of Wills. § 226. possession, but could not be found, upon due search, after his death, raises a presumption of intended revocation by destruc- tion;^® and there is a like presumption where it was found in his drawer with Jiis signature canceled.^* But such a presumption is entirely overcome when it appears that, upon its execution, the will was deposited by testator with a custodian, and that the tes- tator did not thereafter have it in his possession, or have access to it.** Since an animus revocandi is essential, it must be shown that the testator was of sound mind, and that the act of destruc- tion was done freely, and not under undue influence. It must appear that the testator had, at the time of the act of destruction, sufiicient capacity to understand the nature and effect of the act, and performed it, or directed it to be performed, freely and vol- untarily, with the intent to effect a revocation.*^ " Upon a ques- tion of revocation, no declarations of the testator are admissible, except such as accompany the act by which the will is revoked; such declarations being received as part of the res gestae, and for the purpose of showing the intent of the act." ^ § 226. Effect of revocation of will upon codicil The destruc- tion or mutilation of a will is not necessarily a revocation of a codicil, if the latter is so independent of, and unconnected with, ssidley V. Bowen, 11 Wend. 227; about two hours previously; distin- Bulkley v. Redmond, 2 Bradf. 281; guishing Matter of Clark, 1 Tuck. 445. Holland v. Ferris, id. 334; Betts v. 40Schultz v. Schultz, 35 N. Y. 653. Jackson, 6 Wend. 173; Matter of Ken- « Idley v. Bowen, 11 Wend. 227; nedy, 53 App. Div. 105; 65 N. Y. Smith v. Wait, 4 Barb. 28; Matter of Supp. 879; affd., 167 N. Y. 163; Hard Forman, 54 id. 274; Voorhis v. Voor- V. Ashley, 88 Hun, 103; 34 N. Y. his, 50 id. 119; Matter of Waldron, Supp. 583. 19 Misc. 333; 44 N. Y. Supp. 353. 39 Clark's Estate, 1 Tuck. 445 ; Mat- Where a will is made in a sound ter of Philip, 46 St. Eep. 356; 19 N. state of mind, and is subsequently re- Y. Supp. 13; Collyer v. Collyer, 3 St. voked without the slightest evidence Rep. 135; Matter of Nichols, 40 Hun, of any change of purpose, or any 387 ; Grossman v. Grossman, 95 N. Y. ground for it, after the testator has 145. But see Matter of Hopkins, 73 shown signs of breaking up mentally, App. Div. 559, where it was held that the revocation may be attributed to de- the mere fact that canceling marks ap- lusion. (Miller v. White, 5 Redf. 320.) peared upon the signature to a will In Matter of De Groot (18 Giv. Proc. offered for probate was not sufficient Rep. 102), testimony as to the de- to authorize the inference that such struction of a will in the lifetime of marks were made by the testator so as the testatrix was considered, and de- to require the rejection of the instru- struction held to be without her direc- ment as having been revoked, where tion or consent, and fraudulent, and there was no other evidence of an in- the same admitted to probate upon tention to revoke, and the will had proof of the contents thereof. See, as been formally executed ten years pre- to proof of lost or destroyed wills, vious to the testator's death and was § 234, post. found some days after his death in a *2Per Selden, J., Waterman v. Whit- drawer of a desk which he had been ney, 11 N. Y. 157; Matter of Hopkins, accustomed to use, but had not been 35 Misc. 702; affd., 73 App. Div. 559. found upon a thorough search made § 227. The Peobate of Wills. 190 the will that, under the circumstances, it solely expresses the tes- tator's testamentary intentions.** But the general rule is that a codicil is, prima facie, dependent on the will, and that the destruc- tion of the will is an implied revocation of the codicil. §227. Kevocation implied from change of property. — 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 interest in it, such revocation being deduced from, the facts of each case, under familiar rules of law. Accordingly, where a testator, having devised or bequeathed specific property, after- wards in his lifetime sells or otherwise absolutely disposes of the same property, this amounts to a revocation of such devise "or legacy,** to che extent that he has divested himself of the property devised or bequeathed.*^ Where the testator does not wholly divest himself of his interest in the property, but retains any por- tion thereof, as, e. g., a life estate in lands devised, or reserves rent and a right of re-entry,*" this does not work a revocation. In regard to such revocations, the common law has, in most cases, been declared or modified by the statute. A mere agreement to convey is not a revocation, but the property passes by the devise or bequest, subject to the same remedies for a specific perform- ance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them.*^ In the same way, a charge or incumbrance upon any real or personal estate, for the purpose of securing the payment of money, or the performance of any covenant, is not a revocation of any will relating to the same estate, previously executed; but the devises and legacies therein 43Wms. on Exrs. 126; Matter of Barb. 416. As to restoration of the Day, 1 Bradf. 476. devise, upon a reconveyance of the « Livingston v. Livingston, 3 Johns, land, see Walton v. Walton, 7 Johns. Ch. 148; Minuse v. Cox, 5 id. 441; Ch. 258; Brown v. Brown, '16 Barb. Walton V. Walton, 7 id. 258 ; Herring- 569. As to effect of devise of land ton V. Budd, 5 Den. 321; Aiuetrano v. contracted to be sold, see MeCarty v. Downs, 170 N. Y. 388; 63 N. E. Rep. Myers, 5 Hun, 83. 340 ; McNaughton v. McNaughton, 34 47 2 E. S. 64, § 45. And see Knight N. Y. 201; Adams v. Winne, 7 Paige, v. Weatherwax, 7 Paige, 182; Walton 97 ; Beck v. McGillis, 9 Barb. 35 ; v. Walton, 7 Johns. Ch. 258 ; Gaines v. Brown v. Brown, 16 id. 569; Barstow Winthrop, 2 Edw. 571; Eoome v. Phil- V. Goodwin, 2 Bradf. 413; Nottbeck ips, 27 N. Y. 357, 364 ; Guelieh v. Clark, V. Wilks, 4 Abb. Pr. 315; Gilbert v. 3 Sup. Ct. (T.&C.) 315; Nutzhorn v. Gilbert, 9 Barb. 532; Arthur v. Ar- Sittig, 34 Misc. 486; 70 N. Y. Supp. thur, 10 id. 9. 287; Williams v. Haddock, 78 Hun, 45Vreeland v. McClelland, 1 Bradf. 429; 29 N. Y. Supp. 199; afld., 145 393. N. Y. 144; Holly v. Hirsch, 135 N. Y. 46Herrington v. Budd, 5 Den. 321. 590; 49 St. Eep. 14. See Vandemark v. Vandemark, 26 191 The Peobate of Wills. § 228. contained, pass and take effect subject to such charge or incum- brance.*^ Nor is any act of a testator, by which his interest in property is altered, but not wholly divested, to be deemed a revo- cation of a previous devise or bequest of such property; but the devise or bequest gives 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 ; unless, in the instrument by which such alteration is made, the intention is declared that it shall operate as a revocation of such previous devise or bequest.** 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 revoca- tion thereof, unless such provisions depend on a condition or con- tingency, and such condition is not performed, or such contin- gency does not happen.^" §228. Subsequent marriage.— The common-law rule that the marriage of a woman operated as an absolute revocation of her prior will was made a part of the statute law of this State by the Revised Statutes.*^ And this provision is not repealed by impli- cation by the Married "Women's Acts of 1848, 1849, and 1860, but is still in f orce.^^ Notwithstanding these acts (which confer tes- tamentary capacity upon married women) there is sufficient rea- son for the continuance of the rule in the changed relations of the woman by her marriage. Her new status as wife induces the presumption of a new testamentary intention and demands a new testamentary act. Hence the unmarried woman of the statute is the woman who is not in a state of marriage, e. g., a widow.®^ But a will executed by a married woman is not revoked by the death of her husband and her subsequent remarriage,®* nor by a marriage following a divorce. ®® After her marriage, the testa- trix may repviblish her will made before marriage, with the same effect as if re-executed after marriage.^® *8 2 E. S. 65, § 46. And see Vande- 620 ; 43 St. Rep. 282 ; Croner v. Cow- mark V. Vandemark, 26 Barb. 416. drey, 139 N. Y. 471; 54 St. Rep. 728. 49 2 R. S. 65, § 47; Burnham v. 54 Matter of MeLarney, 153 N. Y. Comfort, 108 N. Y. 535. 416; 47 N. B. Rep. 817. 50 2 R. S. 65, § 48; Ludlum v. Otis, 85 Matter of Burton, 4 Misc. 512. 15 Hull, 410. 56 Brown v. Clark, supra. In that 51 2 R. S. 64, § 44. case a single woman made a will and 52 Brown v. Clark, 77 N. Y. 369; afterward married, whereby the will Loomis V. Loomis, 51 Barb. 257; La- was revoked. Thereafter she duly exe- throp V. Dunlop, 6 Sup. Ct. (T. & C.) cuted a codicil referring to and de- 512. See McMahon v. Allen, 4 E. D. scribing her said will and containing Smith, 519. the following clause: "I do hereby re- 53 Matter of Kaufman, 131 N. Y. publish, reaffirm, and adopt the afore- § 229. The Probate op Wills. 192 In the case of a man, who has disposed of his whole estate by will, his subsequent marriage does not operate to revoke such will except he has issue of such marriage, born either in his lifetime or after his death, and the wife or issue of such marriage shall be living at his death, xinless provision is made for such issue by some settlement, or unless such issue be provided for in the will, or in such way mentioned therein as to show an intention not to make such provision. ^^ l^o other evidence to rebut the presump- tion of such revocation can be received.®* § 229. Subsequent birth of child. — It is further provided, that 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 after-born, unprovided for by any settlement, and neither provided for, nor in any way men- tioned, 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.®® The going said instrument as my present even at common law, by the discovery will, in like manner as if so executed of its existence. (Ordish v. McDer- by me, but modified pursuant to this mott, 2 Eedf. 460.) codicil, which, in connection with an Testator made a will in 1883, and a amendment of my said will, I now pub- codicil in 1884. In the former year ,lish and declare together as constitut- he began illicit intercourse with a ing my last will and testament." The woman who afterward became his wife, will was present when the codicil was and he gave her a house, but did not executed, and the testatrix, at the live with her before the codicil was time, declared the instrument executed made or then hold her out as his wife, to be a codicil to her last will aud tes- Held, that at the date of the codicil tament, and a reaffirmation of the lat- the parties had not passed from a ter. Held, that the effect was to re- state of illicit intercourse to that of publish the will, which, with the codi- marriage, and the will was revoked by eil, constituted the testatrix's last will the subsequent marriage of the testa- and testament. tor and birth of issue. (Matter of 57 2 R. S. 64, § 43. Gall, 31 St. Rep. 954; 9 N. Y. Supp. • 58 It was held, before the Revised 466; affd., 10 id. 661; 32 St. Rep. Statutes, that marriage and birth of a 695.) child might amount to an implied 59 2 R. S. 65, § 49, as amended L. revocation, and that such revocations 1869, c. 22, § 1. See also Co. Civ. were not within the Statute of Frauds. Proc, § 1868. Where the testator, (Brush v. Wilkins, 4 Johns. Ch. 506; after giving the residue of his estate Sherry v. Lozier, 1 Bradf. 437.) See in trust for his wife during life. Bloomer v. Bloomer, 2 id. 339. made the disposal, " I give the The presumption of intent to revoke reversion of all said residue and a will arising from subsequent mar- remainder " * * * "to those per- riage and birth of issue, is considered sons who, if my death occurred at in Havens v. Van Denburgh, 1 Den. 27. the time of her death, would then be A will made in ignorance of the ex- my heirs-at-law by blood," and a son istence of a living child is not revoked, was born in his lifetime after the exe- 1&3 The Probate of Wills. 230. statute, it will be observed, says parent^ thus including mother as well as father.^" It has no application, however, to an adopted child. ^* The birth of a post-testamentary only child is, however, no ground for refusing probate.®^ § 230. Revocation of subsequent will. — Where a subsequent will affects one previously made (which, as has been seen above, is not always the case), the revocation of the later will does not revive the first, unless it appears, by the terms of the revocation, that it was the testator's intention to revive his first will;** or unless, after such revocation, he duly republishes his first will.^ cution of the will, — Held, that the son took under tlie will and was not enti- tled to a distributive share of the es- tate, as if his father had died intes- tate, as a child " unprovided for by any settlement, and neither provided for nor in any way mentioned in such will," within 2 R. S. 65, § 49. (Minot V. Minot, 17 App. Div. 521; 45 N. Y. Supp. 554. ) . 60 The amendment of 1869 consisted of substituting the word parent for father; thus rendering obsolete the case of Cotheal v. Cotheal (40 N. Y. 405), which held that under the orig- inal statute the will of a married woman was not revoked by the subse- quent birth of children who survived her. See Plummer v. Murray, 51 Barb. 201; Smith v. Robertson, 24 Hun, 210. 61 Matter of Gregory, 15 Misc. 407 ; 37 N. Y. Supp. 925. 62 Matter of Bunce, 6 Dem. 278; Matter of Huiell, id. 352; Matter of Murphy, 144 N. Y. 557; 64 St. Rep. 249; Luce v. Burchard, 78 Hun, 537; 29 N. Y. Supp. 215. 63 In Matter of Campbell (170 N. Y. 84; 62 N. E. Rep. 1070), testatrix exe- cuted a will in 1897. In 1899 another will was executed, and in 1900 an in- strument was executed which declared itself to be a codicil to the last will of testatrix, " which will bears date July 6, 1897." The will of 1899 modi- fied the provisions of the will of 1897 in respect to certain legacies. Each of the wills was executed with the requi- site statutory formalities, and con- tained the usual revocation clause. The codicil modified some provisions 13 of the will of 1897, revoked others, and added some legacies. Held, that the effect of the codicil was to republish the earlier will as of the date of the codicil, and to revoke the intermediate will. Where, however, a codicil is written partly upon the will itself, modifies it only in a few particulars and its pro- visions are inseparably blended with those of the will, and it appears that testator had had trouble with a brother who was named as executor of the will, which resulted in changes in his estate, creating inequalities in the devises made, an erasure of the signa- ture to the codicil will be held to re- voke the will as well as the codicil. (Matter of Brookman, 11 Misc. 675 ; 33 N. Y. Supp. 575.) Revocation of probate of a will as to personalty, by the surrogate, — Held to abrogate, at least as to personalty, a revocation clause therein, so as to make it inoperative as against the pro- bate of a prior valid will. (Matter of Miller, 28 Misc. 373; 59 N. Y. Supp. 978.) 64 2 R. S. 66, § 53; Matter of Barnes, 70 App. Div. 523; 75 N. Y. Supp. 373. A will expressly revoked by the terms of a subsequent will, afterward destroyed by the testator, is not republished so as to become a valid will, by the testator's declara- tion to persons other than the sub- scribing witnesses, that he desires the will first executed to stand as his last will, and that it is his last will. (Matter of Stickney, 161 N. Y. 42.) § 231. The Probate of "Wills^ 194 ARTICLE FIFTH. CODICILS AND INSTEUMENTS ANNEXED TO WILM. § 231. Execution and effect of codicil. — A codicil is defined to be a supplement or an addition to a will, for an explanation or alter- ation of the former dispositions of the testator, and is to be taJsen as a part of the will, all making but one testament. Except where a contrary intent is expressed or shown, the effect of the codicil is to bring down the date of the will to the date of the codicil, making the will speak as of that date, unless the effect of the change of date is to alter the meaning of the will.^ The exe- cution of a codicil amounts to a republication of the will to which it refers unless a contrary intention appears on the face of the paper, and corrects any informality in the execution of the latter.^ The effect of a codicil to revoke a will has been previously con- sidered.*^ There can be but one last will, but the testator may make any number of codicils, all being of equal force, if not con- tradictory. It is not necessary that the codicil should be written on the same sheet with the will, nor that it be afiixed to it bodily, but to entitle a codicil to be proved and so take effect as a part of the will, it must be executed, published, and attested with the same formalities as the will itself.®* The facts that it was pre- sented for probate with the will, that evidence was received with regard to it, and that the paper was received by the surrogate in connection with the will do not establish it as a codicil, in the absence of proof of formal statutory execution.™ 65 Stillwell V. Mellersh, 5 Eng. L. & Misc. 572 ; 72 N. Y. Supp. 55. See Eq. Eep. 185. See Brown v. Clark, 77 Southgate v. Continental Trust Co., N. Y. 369, 375. By adding a codicil, 36 Misc. 415 ; Farmers' L. & T. Co. v. after the Revised Statutes, the testa- Ferris, 67 App. Div. 1. tor republishes his will, and subjects 67 See § 223, ante; and, in addition its construction, and the validity of its to the cases there cited, Kane v. Astor, trusts and powers, to those statutes. 9 N. Y. 113; 5 Sandf. 467, 519; Coster (Salmon v. Stuyvesant, 16 Wend. 321; v. Coster, 3 Sandf. Ch. Ill; Howland iRoot v. Stuyvesant, 18 id. 257.) See v. Union Theological Sem., 5 N. Y. Langdon v. Astor, 16 N. Y. 9. 193; Wagstafl v. Lowerre, 23 Barb. A provision in a will, modiiied 6y 209; Conover v. Hoffman, 1 Abb. Ct. a codicil, is to be read as though it App. Dec. 429 ; Matter of Manning, 50 had been written in conformity with App. Div. 407 ; 64 N. Y. Supp. 222. the change. (Simonson v. Elmer, 17 68 Dack v.- Dack, 19 Hun, 630; Mat- Week. Dig. 345.) ter of Buckwell, N. Y. Law J., March 66 Brown v. Clark, 77 N. Y. 369; 18,1891. That there is no attestation Matter of Storms, 3 Redf. 327 ; Caul- clause to a codicil to a will does not field V. Sullivan, 85 N. Y. 154; Cook invalidate it. (Matter of Crane, 68 v. White, 43 App. Div. 388; 60 N. Y. App. Div. 355; 74 N. Y. Supp. 88.) Supp, 153 ; Matter of Campbell, 35 69 Burhans v, Haawell, 43 Barb. 424. 195 The Probate of Wills. §§ 232, 233. § 232. Pr£ing codicil. — The Eevised Statutes declare that the term " "vvill," as used in the chapter relating to wills, testa- ments, etc., includes all codicils as -well as wills;™ and a provision of the present Code is to the same effect.'^ Where, on the pro- bate of a will, an alleged codicil is brought in by parties who are interested, but who were not cited, the proper course is to direct them to file an allegation propounding the codicil for proof, as a part of the pending proceeding.''* § 233. Instruments referred to in will. — The surrogate can only prove, as a will or part of a will, such Instruments as have been made conformably to the statute. But it is settled, by a long line of authorities, that any written testamentary document in existence at the execution of a will may, by reference, be incor- porated into, and become a part of, the will, provided the refer- ence in the will is distinct, and clearly identifies, or renders capa- ble of identification by the aid of extrinsic proof, the document to which reference is made.^^ Entries in a book, referred to in a will, become, on being identified, incorporated into the latter, in order to enable the court to reach the testator's intention.''* Still, instruments so incorporated into a will are not proved or recorded with it. Whether such papers have existence or not, or whether the reference is properly made, or the provisions of the will are nugatory, has no effect on the question of probate.''^ Although reference may be made in a will to another document 70 2 R. S. 68, § 71. 74 In Guion v. Underbill (1 Dem. 71 Co. Civ. Proc, § 2514, subd. 4. 302), testatrix, by ber will, after giv- 72 Carle v. Underbill, 3 Bradf. 101. ing one-tbird of the residue to ber And see Van Wert v. Benedict, 1 id. execiitors, in trust, to apply tbe in- 114. terest and income to tbe use of ber 73 Brown v. Clark, 77 N. Y. 369, 377. daughter for life, witb remainder over. But see Matter of Sanderson ( 9 Misc. directed " that this distribution of said 574), where the paper referred to was residue of said property is subject to not properly executed. See also Mat- this provision — that the third so di- ter of Fults, 42 App. Div. 593 ; 59 N. reeted to be invested for the benefit of Y. Supp. 756. In that case a will my daughter is to he charged with the drawn on a one-page printed form, amount which shall be found on my midway of the page of which a double books charged to her." Held, that the sheet of foolscap, containing bequests, amount to be deducted from the was attached by pins, neither the part daughter's third must include the on the form nor that on the foolscap charges found on the books as of dates referring to the other, — Held to have subsequent, as well as prior, to tbe been properly denied probate, though date of the will. See also Lawrence no fraud was alleged. As to when a v. Lindsay, 68 N. Y. 108. reference in a will to an unexecuted 75 Matter of Tonnele, 5 N. Y. Leg. paper is sufficient to incorporate it in Obs. 254 ; affd.. .4 N. Y. 140. See Mat- the will, see Ludlum v. Otis, 15 Hun, ter of Brand, 68 App. Div. 225; Mat- 410; Dyer v. Erving, 2 Dem. 160; ter of Mandelick, 6 Misc. 71. Webb V. Day, id. 459; Matter of Robert, 4 id. 185. § 234. The Peobate of Wills. 196 already in existence, for the purpose of description, there can be no valid disposition except in the will; and a will cannot reserve the power to give by an instrument not executed as a will.''® But a provision that advancements or beneficial provisions for persons and purposes provided for in the will, " if charged in my books of account, shall be deemed so much on account of the pro- vision in my will or codicils in favor of such persons or purposes," is valid; and gifts actually made in the testator's lifetime, and so charged, are to be deemed advancements." Several testamentary instruments executed at the same time will be taken and construed together as one instrument.''* TITLE SIXTH. LOST OE DESTEOYED WILLS. § 234. Jurisdiction of surrogate. — Previously to 1870, Surro- gates' Courts had not jurisdiction to take proof of lost or de- fitroyed wills, the only method of establishing such a will being by civil action in a court of record. In that year, the surrogate of !?few York county was authorized to take proof of the execution of such a will in the same manner as the Supreme Court might do.'^ This power is now extended to all surrogates by a section of the Code which, in form, specifies the cases in which the Sur- rogate's Court may decree probate of such a will. By implica- tion, this jurisdiction is coextensive with that of the Supreme T6 Thompson v. Quimby, 2 Bradf. TSHowland v. Union Theo. Sem., 5 449. Thus, in Locke v. Farmers' Loan N. Y. 193; Pierpont v. Patrick, 53 id. & T. Co. (21 K Y. Supp. 524; s. c, as 591; Haven v. Haven, 1 Redf. 374; Locke V. Rings, 66 Hun, 428), the vpill Matter of Forman, 54 Barb. 274; directed the executors to carry out Lynch v. Pendergast, 67 id. 501. In the terms of a certain deed of trust Matter of Purdy (47 St. Rep. 284; 20 executed by the testator, and if this N. Y. Supp. 307 ) , two instruments, could not be done, to set aside from written upon blanks, each in form a his estate a certain net income, and complete will, but without a date, were pay such income to the beneficiaries offered for probate; one disposed of named in such deed of trust, in the money and specific articles, and the proportions set out therein. Held, that other of specific articles only; it ap- no trust was created by the will, be- peared that the two were executed at cause it disposed of no property; and different dates, and that after the exe- it received no support by the reference cution of the first, the testatrix re- to the deed of trust, because such deed ceived a lot of household furniture, was neither authenticated according to Held, that the instrument disposing of the Statute of Wills, nor incorporated specific articles only was to be taken in the will. See Matter of Sanderson, as executed last and interpreted as a 9 Misc. 574. codicil to the other, rejecting the TTLangdon v. Astor, 16 N. Y. 9; revocation clause in the printed blank, Matter of Twombly, 24 Misc. 51; 53 and thus both admitted to probate. N. Y. Supp. 385. 79 L. 1870, e. 359, § 8. See Sheridan V. Houghton, 84 N. Y. 643. 197 The Peobate of Wills. § 235. Court, -which inherits its jurisdiction of such cases from the for- mer Court of Chancery. Under the Revised Statutes, that juris- diction embraced any will of real or personal estate, lost or de- stroyed by accident or design; and the court had the same power to take proof of the execution and validity of the will and to estab- lish it, as it had to establish a lost deed.*" But this provision of the statute has been repealed,*^ and replaced by a provision of the Code of Civil Procedure, to the effect that an action to procure a judgment establishing a will may be maintained by any person interested in the establishment thereof, where the will has been lost or destroyed by accident or design before its proof and record within the State.*^ Such action may be maintained where the will (1) was in existence at the time of the testator's death, or (2) was fraudulenty destroyed in his lifetime, and (3) where its provisions are clearly and distinctly proved by at least two credi- ble witnesses — a correct copy or draft being equivalent to one witness.*^ In the same cases, and those only, a lost or destroyed will can be admitted to probate in a Surrogate's Court.** I 235. The existence of the will. — The legal existence of the will at the death of the testator, or its fraudulent destruction dur- ing his lifetime, are the essential facts. The existence will not be presumed from the fact that it was seen shortly before testa- tor's death, nor is it proved by a declaration of the testator, made seven months before his death, that he- had made a will; for this does not suffice to rebut the presumption of destruction with in- tent to revoke, Avhich arises from the fact that no will could be found, after diligent search made soon after death.*® The bur- den of proof is on the proponent to show either the existence of the will at testator's death or its prior destruction.** Either fact may be proved by circumstantial evidence. Thus when it appears that the will, at the time of its execution, was placed by the tes- 80 2 R. S. 67, § 63. As to jurisdic- 83 Co. Civ. Proc, § 1865. tion of Court of Chancery, before the 84 Co. Civ. Proc, § 2621. Revised Statutes, see Bowen v. Idley, 85 Collyer v. Collyer, 4 Dem. 53 • 6 Paige, 46. affd., 110 N. Y. 481; Matter of Ken- 81 L. 1880, e. 245. nedy, 167 id. 163; 60 N. E. Rep. 442. 82 Co. Civ. Proc, § 1861. The action See Matter of Marsh, 45 Hun, 107; must be brought within six years after Matter of Barnes, 70 App. Div. 523 ; the testator's death, except that where 75 N. Y. Supp. 373. the will has been lost, concealed, or 86 Perry v. Perry, 49 St. Rep. 291 ; destroyed, the cause of action is not 21 N. Y. Supp. 133; McNally v. Brown, deemed to have accrued, until the dis- 5 Redf. 372; Keery v. Dimon, 37 N. covery by the plaintiff, or the person Y. Supp. 92; 72 St. Rep. 125; Kahn under whom he claims, of the facts v. Hoes, 14 Misc. 63; 35 N. Y. Supp. upon which its validity depends. (Co. 273. Civ. Proc, § 382, subd. 6.) § 236. The Peobate ov Wills. 198 tator in the hands of another person as custodian, who took charge of it, and locked it up in a trunk, and supposed it was there at the time of the testator's death, but, upon search after his death, it could not be found, its legal existence, at the time of the tes- tator's death, is sufficiently shown.*^ If the will was- not, in fact, in existence at the death of the testator, it is to be inferred, under such circumstances, that it was fraudulently destroyed or lost during his lifetime, and in that case, as well, it was his last will and testament.** But a lost will, not traced out of testator's possession, is presumed to haTe been revoked by him by destruc- tion.«« § 236. Its due execution.-- The fact that the will is lost or has been destroyed does not affect the requisites to its due execution. These requisites must be proved as if the will were present. It cannot be done, it is true, by the same description of evidence in all respects, but some evidence sufficient to show a compliance with the statute, in all its provisions, must be given.®** These facts are to be proved in the usual way, as other facts are required to be proved, to make them evidence in a court of justice. The fact of testator's mental capacity must be shown; if not, although the existence of the will is proved, probate ■will be refused.®^ While the statute requires rules to be observed in the execution and publication of wills, which it does not prescribe in regard to the execution and delivery of other written instrviments, the proof of the several acts so prescribed is the same as the proof required to establish any other fact. The law lays down no stubborn, in- 8T Schultz V. Schultz, 35 N. Y. 653 ; not overcome, and such question Matter of Cosgrove, 31 Misc. 422; 65 should be submitted to a jury. N. Y. Supp. 570. 89Idley v. Bowen, 11 Wend. 227; 88 lb. In Matter of Soule (40 St. Bulkley v. Eedmond, 2 Bradf. 281; Eep. 600; 15 N. Y. Supp. 934), the Holland v. Ferris, id. 334; Hard v. testatrix had made a will to take the Ashley, 88 Hun, 103; 34 N. Y. Supp. place of one believed to have been 583. See § 225, amte. wrongfully abstracted from her pos- 90 Grant v. Grant, 1 Sandf. Ch. 235, session, and gave it to the person who 343; Voorhees v. Voorhees, 39 N. Y. ■drew it, for safe-keeping; the husband 463; Matter of Purdy, 46 App. Div. of testatrix obtained it two weeks be- 33; 61 N. Y. Supp. 430. It is equally fore her death; it was in existence necessary, as in the case of a will two days before that event, but actually presented, that two at least was not found thereafter by those of the subscribing witnesses be pro- interested in its production, and was dueed or the nonproduction of them, not produced by her husband, who con- or either of them, satisfactorily ac- tested the probate and was interested counted for, and then the handwriting, in its suppression. Held, that in the or the fact of their having signed the absence of evidence that the will was will as witnesses, must be duly proven destroyed by testatrix, or that she had, by competent testimony. ( Collyer v. at any time, an intention to revoke it, Collyer, 4 Dem. 53; affd., 110 N. Y. the presumption that it existed was 481.) 91 Matter of Paine, 6 Dem. 361. 199 The Peobate of Wills. §§ 237, 238. flexible rules in such cases, but accepts the best evidence that can be procured, adapted to the nature of human afPairs, human infirmities and casualties, which tends with reasonable certainty to establish the fact in controversy. § 237. Its fraudulent destruction. — A will is " fraudulently de- stroyed," within the meaning of the statute, when it is destroyed by the testator himself, in consequence of the undue influence exercised over him, and the misrepresentations made to him by a person interested to have the will destroyed. It is not necessary that the will should have been destroyed by some one other than the testator, or that the means by which the testator was indticed to destroy it should have amounted to force or coercion.®^ It is a fraudulent destruction, if accomplished without testator's knowl- edge or consent, in disregard of his intention, and to the injury of a benefi:ciary, though with no design to gain advantage, or injure or deceive any one.^® But in order to prove the vdll " fraudu- lently destroyed," it is riot necessary that it should have been destroyed in such a manner as to amoimt to a valid revocation.®* The statute should be liberally construed in furtherance of jus- tice and for the prevention of fraud; the fraudulent destruction of a single item or clause, or distinct portion or provision of a will, must be considered the destruction, — fraudulent or by design, — of the will, if the destruction affects the disposition of the testa- tor's property in any essential particular; and, accordingly, the courts have power to restore and establish portions of a will so destroyed or suppressed, even though a codicil, alleged to have been fraudulently procured, has been admitted to probate by a Surrogate's Court.®^ § 238. Its contents. — The statutory requirement, that the pro- visions of a lost or destroyed will must be " clearly and distinctly proved by at least two credible witnesses," should receive a liberal construction; and its spirit is complied with by holding that it applies only to those provisions which affect the disposition of property, and are of the substance of the will.*'^ It is necessary, 92 Voorhees v. Voorhees, 39 N. Y. M Timon v. Claffy, 45 Barb. 438. 463 ; Harris v. Harris, 26 id. 433 ; 95 Hook v. Pratt, 8 Hun, 103 ; Timon Matter of Forman, 54 Barb. 274; v. Claffy, 45 Barb. 438; Voorhees v. Smith V. Wait, 4 id. 28; Everitt v. Voorhees, 39 N. Y. 463; Schultz v. Everitt, 41 id. 385. Accidental de- Schultz, 35 id. 656. struction of the will in charge of a 98 Early v. Early, 5 Redf. 376. In custodian, during testator's lifetime, is that case, the subscribing witnesses insufiacient. (Matter of Reiffeld, 36 agreed that the will was read aloud to Misc. 472; 73 N. Y. Supp. 808.) and signed by the testator, in their 93 Early v. Early, 5 Kedf. 376. presence, and that they signed in his §239. The Probate of Wills. 200 however, that both witnesses should testify upon personal knowl- edge of the contents; thus, it is not enough that one saw a draft which the other declared afterward became a will.®^ The proof of a lost or destroyed will proceeds upon the theory that it is not in existence and cannot be produced before the surrogate; and therefore the case is one of secondary evidence exclusively.®* Where the two witnesses differ materially in their testimony either as to the beneficiaries or the amount of bequests, the will cannot be admitted upon their testimony. ®® It cannot be ad- mitted upon the stipulation of counsel as to its contents.-^ § 239. Issuing of letters. — Where the will is established in an action, letters issue thereupon from the Surrogate's Court having jurisdiction, if so directed by the judgment.^ The judgment must contain a copy, or the substance, of the will, and must be presence, but they diflfered as to whether the declaration of the nature of the instrument, and the request to sign, were made by the testator, one witness swearing positively that they were so made and the other stating that they were made in testator's presence, by M.j who drew the will and supervised the execution. Though testator was ill and feeble, it did not appear that he was in such a con- dition as to be unable to make or dis- sent from such a request and declara- tion; the execution was not imme- diately before his death; and both subscribing witnesses testified that he was of sound mind. Two witnesses agreed that all the property was de- vised and bequeathed to testator's widow, but differed as to whether an executor was appointed. After the will was executed, the draughtsman took it with him to keep for testator, put it among his papers, and died. His son found it among his father's papers and destroyed it, during testator's life- time, as a paper of no importance. Held, that the due and proper execu- tion was shown, and that the pro- visions were sufficiently proved, not- withstanding the doubt as to the ap- pointment of an executor, which was not an indispensable part of the will, and that the destruction was fraud- ulent, as against the beneficiary, within the meaning of the statute, and probate should be granted. In Mc- Nally V. Brown (5 Redf. 372), it ap- peared that the will was in existence at the time of decedent's death, and was last seen in the possession of the principal beneficiary, the petitioner, but there was no evidence that it had been lost or destroyed; and the testi- mony of petitioner, the draughtsman, the subscribing witnesses, and another, as to its provisions, was such as only to enable the courts to surmise the nature thereof, and no two witnesses proved all the provisions. Held, that there was not a compliance with the statute, and probate was refused. See Matter of Purdy, 46 1pp. Div. 33; 61 N. Y. Supp. 430. 97 Matter of Waldron, 19 Misc. 333 44 N. Y. Supp. 353. 98 Everitt v. Everitt, 41 Barb. 385 27 How. Pr. 600; Fetherly v. Wag- goner, 11 Wend. 599. See Rider v Legg, 51 Barb. 260. As to admissi- bility of declarations made by the tes tator, see Grant v. Grant, 1 Sandf. Ch 235, 243; Timon v. Claffy, 45 Barb, 438; 41 N. Y. 619. The declarations of decedent respecting its dispositions are admissible only as a circumstance taken in connection with other evi- dence tending to establish the facts. Reiterated declarations of this char- acter, uttered by decedent to various persons, cannot be galvanized into the " two credible witnesses " made an in- dispensable necessity by the Code. (Hatch v. Sigman, 1 Dem. 519.) 99 Sheridan v. Houghton, 6 Abb. N. C. 234. See Harris v. Harris, 26 'N. Y. 433; Grant v. Grant, 1 Sandf. Ch. 235. 1 Matter. of Ruser, 6 Dem. 31. 2 See Co. Civ. Proc, §§ 1864, 1865. 201 The Probate of Wills. §§ 240, 241. recorded in the surrogate's office. Where the proceedings for probate are taken in a Surrogate's Court, letters issue upon the will, when admitted, as in other cases. TITLE SEVENTH. NUNCUPATIVE WILLS. § 240. Who may make. — In the early history of wills, before the Statute of Frauds, the act of the testator in disposing of his property was not attested by any writing, but his will was de- clared by him verbally, in the presence of witnesses, usually when he was in his last sickness. But for the statute which declares the mode of executing testamentaiy dispositions of property, it would not be essential that a will should be in writing.* The statute of this State restricts the making of unwritten or nuncupative wills to sailors and soldiers while in actual service and danger. It is provided by statute, that no nuncupative or unwritten will, be- queathing personal estate, shall be valid, unless made by a soldier while in actual military service, or by a mariner while at sea.* Besides the restriction thus imposed by the statute, there is a common-law restriction, still recognized, that the will must be made when the testator is in extremis, or overtaken by sudden and violent sickness, and has no opportunity to make a written will f though it is not necessary that it should be made in the last sickness.® A mariner is not " at sea," even when in the naval service, during a voyage upon a river ;^ but a captain of a coast- ing vessel, on a voyage, and while lying at anchor in an arm of the sea, where the tide ebbs and flows, may make a nuncupative will.« § 241. Mode of execution of will. — Nuncupative wills not being regulated by statute as to their mode of celebration or execution, the single question for the judgment of the court is, whether the nuncupation was made by a person entitled to that privilege. It is sufficient that the testator, in prospect of death, states what dis- 3 For a history of the law of nun- See the American cases collected in cupative wills, the curious reader is notes to 1 Jarman on Wills (ed. of referred to the opinion of Chancellor Randolph & T.), 238. Kent, in Prince v. Hazelton, 20 Johns. e Ex p. Thompson, 4 Bradf. 154. It 502, and of Surrogate Bradford, in was otherwise held under our former Ex p. Thompson, 4 Bradf. 154. Statute of Wills. (Prince v. Hazel- 4 2 E. S. 60, § 22. A cook onboard ton, 20 Johns. 502.) a steamship is a "mariner." {Ex p. 7 Gwin's Estate, 1 Tuck. 44. Thompson, 4 Bradf. 154.) 8 Hubbard v. Hubbard, 8 N. Y. 196. 5 Prince v; Hazelton, 20 Johns. 502. §§ 242, 243. The Probate of Wills. 202 position lie desires to make of his property; and it is enough if he does this in answer to questions. iN'o particular form of language is necessary, nor need he request the persons present to be wit- nesses that it is his will; nor need he name an executor.® A letter written by a soldier in actual military service, in anticipa- tion of battle, and in view of death therein, has been held a valid nuncupative will, although the testator was not killed till several months thereafter.^" § 242. Proof of will. — Formerly, no particular number of wit- nesses of the nuncupation was required to entitle such a will to probate, if the court was satisfied with the proof ;^^ but now, be- fore a nuncupative will is entitled to probate, its execution and the tenor thereof must be proved by at least two witnesses. ^^ It is necessary, also, that the testamentary capacity of the deceased, and the animus testandi at the time of the alleged nuncupation should be clearly and satisfactorily proved.''^ The same mode of procedure, by petition and citation, is to be adopted to prove a nuncupative will, as has been detailed in regard to the proof of a written will. The citation must state that the will was nun- cupative;^* and the petition should set forth the fact that the decedent was either a soldier or sailor, his rank or capacity, the extremity of his illness at the time, and the particular words or language used, which it is proposed to establish as a will. Forms of the petition and probate will be found in the appendix. TITLE EIGHTH. DECEEE GEANTING OE EEFUSING PEOBATE; EECOEDING WILL, ETC. § 243. Surrogate's decree on probate The parties for and against the probate having introduced their proofs, and summed up the case ■ — the proponent being entitled, as having the affirma- tive of the issue, to the opening and closing — the admission or rejection of the instrument propounded then awaits the decision of the surrogate upon the law and facts. It appearing to the satisfaction of the court that the will was duly executed, and that the testator, at the time of executing it, was in all respects com- petent to make a will, and not under restraint, it must be admitted 9 Ex p. Thompson, 4 Bradf. 154; ^i Ex p. Thompson, 4 Bradf. 154. Hubbard v. Hubbard, 8 N. Y. 196. See 12 Co. Civ. Proo., § 2618. Botsford V. Krake, 1 Abb. Pr. (N. S.) 13 Hubbard v. Hubbard, supra. 112. uCo. Civ. Proc, § 2616. 10 Botsford V. Krake, 1 Abb. Pr. (N. S.) 112. 203 The Pkobate of Wills. § 244. 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 the decree must state "whether the probate was or was not contested. ^^ § 244. All the issues to be decided. — Where, in addition to ques- tions as to the factum of the will, the court is called upon to de- termine the true construction and the legal effect of the instru- ment, as he may be required to do, the decree admitting the will to probate must contain the decision determining the true con- struction and meaning of the instrument. A question has been raised whether the determination of both these issues should be by one and the same decree, or whether the court may, on being satisfied of the validity of the execution of the will, or in case there is no contest on that question, decree the probate, and re- serve the question of construction for further consideration and a subsequent decree. Notwithstanding the possibility of an injury to the estate, resulting from a delay in the grant of letters upon a probate to which the executor, in such a case, is confessedly en- titled, we think it safer, if not indeed vital, that probate should not be granted until all the issues properly ^* raised, whether of validity, construction, or otherwise, are determined. The statute declares, that " the surrogate must determine the question [of construction, etc. J upon rendering a decree," — that is, a decree granting probate. After a will is once admitted to probate, the proceeding may be said to have come to an end, and the court to have lost jurisdiction to proceed further in the matter. There may be some question whether, notwithstanding the provision of section 2624, prescribing that the question of construction is to be determined, " unless the decree refuses to admit the will to probate," etc., the unsuccessful party may not of right require a decision of the question of construction, even where probate is refused; for, by section 2625, it is provided that " where the sur- rogate decides against the sufficiency of the proof, or against the validity of a will, or upon the construction, validity, or legal effect of any provision thereof, he must make a decree accordingly; and, if required by either party, he must enter in the minutes the grounds of his decision." 15 Co. Civ. Proc, § 2623. must probate it as a will of real prop- is Where a will presented for pro- erty, without regard to, and without bate which is duly executed assumes adjudicating upon, any question as to to make a devise of realty, and the pe- the validity of the devise. (Matter of tition and eiiation so require, and the Merriam, 136 N. Y. 58; 48 St. Eep. petitioner so requests, the surrogate 897.) See c. VII, §§ 245, 246. The Peobate of Wills. 204 The purpose of the requirement, that the surrogate must, on request, enter in the minutes the grounds of his decision, is to enable the appellate court to correct an erroneous conclusion of law, without the necessity of examining and passing upon all the facts.*'' It will be borne in mind, however, that " an appeal from a decree or an order of a Surrogate's Court brings up for review, by each court to which the appeal is carried, each decision to which an exception is duly taken by the appellant." *^ § 245. Probate of part of will. — We have already pointed out that the court may deny probate of a particular clause of a will, or grant a limited probate of the will, as it is sometimes termed. This will be done where it is shown that a particular clause has been inserted by fraud or mistake, without the knowledge of the tes- tator. It is not necessary that the whole will must stand or fall.-'* A will should not be permitted to be made a vehicle for libel or contumely, and when such a design plainly appears from the con- text, such matter, in so far as it is not dispositive, should be re- fused probate and record.^* Codicils, which are as much parts of the will as if incorporated therein and draw the will down to their date, as if then republished, may be rejected, leaving the will to stand.^' But where the surrogate has reached the conclusion that the factum of the will has not been established, he has no dis- cretion and cannot admit it to probate for any purpose.^ § 246. Certificate indorsed on proved will. — The surrogate is re- quired to " cause to be indorsed upon, or annexed to, the original mil admitted to probate, or the exemplified copy, or statement of the tenor of a will, which was admitted without production of an original written will, a certificate, under his hand, or the hand of the clerk of his court, and his seal of office, stating that it has, upon due proof, been admitted to probate, as a will valid to pass real or personal property, or both, as the case may be." ^ 17 See § 114, ante. punge from the probate any parts of 18 Co. Civ. Proc, § 2545. See, as to the will which constitute operatvve the rule under the former statute, portions of the instrument. But of- Schenck v. Dart, 22 N. Y. 420; Cau- fensive passages have sometimes been jolle V. Ferrie, 23 id. 90; Robinson v. allowed to be omitted from the pro- Kaynor, 28 id. 494; Howland v. Tay- bate, when the omission does not lor, 53 id. 627. change the legal effect. {In re Wort- 19 Burger v. Hill, 1 Bradf. 360; In naby, 1 Rob. Ecc. Rep. 423.) See also re Welsh, 1 Redf. 238; Baker's Will, 2 Wms. on Exrs. (6th Am. ed.), p. 443, id. 179; James v. Beasley, 14 Hun, and 2 Redf. on Wills, 43. 520. See ante, § 220. 21 See § 231, am,te. 20 Matter of T— B— , 27 Abb. N. C. 22 Matter of Eckert, 36 Misc. 610; 125; 44 St. Rep. 304; 18 N. Y. Supp. 73 N. Y. Supp. 1122. 214. The court cannot, even with the 23 Co. Civ. Proc, § 2629. consent of all parties interested, ex- 205 The Probate of Wills. §§ 247, 248. § 247. Its effect as evidence. — " The will, or the copy or state- ment, 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, ■s^'ithout further evi- dence," and with the conclusive effect, as evidence, of a decree of probate of a will of personal property, under section 2626; and with the presumptive effect of a decree of probate of a will of realty, under section 2627 — subject to the provision of section 2628, protecting a purchaser from an heir of a person who died seized of real property against a devise of the same, unless, within four years after the testator's death, the will containing the devise is admitted to probate and recorded, or is established by action.^* § 248. Disposition of will after probate. — 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 country, and that the laws of such State,- Territory or country require the produc- tion of the original will before the provisions thereof become effective, the surrogate may, at any time after probate, and tipon such notice to the parties interested in the estate as he may think proper, cause any original will remaining on file in his office to be sent by post or otherwise 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 think proper for the protection of other parties interested in the estate.^' " Except where special provision is otherwise made by law, or where the surrogate sends a \vill into another State or Territory or into a foreign country, or delivers it to a party in interest, as provided in section 2620 of this act, a written will, after it has been proved and recorded, must be retained by the sur- rogate until the expiration of one year after it has been recorded, and, if a petition for the revocation of probate thereof is then filed, until a decree is made thereupon. It must then be returned, upon 2* Co. Civ. Proc, § 2629, as amended surrogate, although the latter are not 1882. See Carroll v. Carroll, 60 N. Y. thereby made evidence in the cause in 121, 125, for a construction of the which the will was offered. • See Nich- original enactment. It was held, un- ols v. Romaine, 3 Abb. Pr. 122 ; Morris der the former statute, that in order v. Keys, 1 Hill, 540; Caw v. Robert- to make the record or exemplification son, 5 N. Y. 125, 132. of the record of the will evidence, it 25 Co. Civ. Proc, § 2620, as amended must be accompanied with the proofs 1,902 (L. 1902, c. 114). and examinations taken before the §§ 249, 250. The Peoeate of Wills. 206 demand, to the person who delivered it, unless he is dead, or a lunatic, or has removed from the State; in which case it may, in the discretion of the surrogate, be delivered to any person named therein as devisee, or to an heir or assignee of a devisee ; or, if it relates only to personal property, to the executor, or administrator with the will annexed, or to a legatee." ^ § 249. Recording wills. — We have already given^ the provision of the Code as to the record-books to be kept by the surrogate. Besides the records of his own business, a surrogate is empowered to complete, certify, and sigp in his own name all records of papers left uncompleted or unsigned by any of his predecessors in office.^ When a surrogate admits a will to probate he is required to record it in his office.^® But there are other circumstances when a vrall is entitled to be so recorded. Thus where a will has been established in a civil action brought for that purpose, the sur- rogate is required to record a copy; or, if the will is lost or de- stroyed, the substance of the will, as incorporated in the judgment of establishment, transmitted to him, must be recorded.^** Where a will of real property has been proved and recorded in any court of the State, of competent jurisdiction, a transcript thereof and of all the notices, process and proofs relating thereto, must, when duly exempliiied, be recorded, upon the request of any person interested therein, in the Surrogate's Court of any county in which real property of the testator is situated.^'' ' § 250. Recording foreign wills. — In certain cases the exemplified copy of a foreign will of personalty, or of realty, which has been admitted to probate abroad, may become entitled to record in a siirrogate's office of this State. Where real property, situated within the 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 26 Co. Civ. Proc, § 2635, as amended unsigned and uncertified records of 1902 (L. 1902, e. 114). wills, and of other proofs and exami- 27 See § 24, ante. nations taken in the proceeding of pro- 28 Co. Civ. Proc., § 2481, subd. 9. bate thereof, before their predecessors From time to time the Legislature has in office, are hereby confirmed and de- passed general confirmatory acts, the clared to be valid and in full compli- latest (c. 155 of L. 1890) being as fol- ance with the pre-existing require- lows : " All acts hitherto of surrogates ments." and officers acting as such in complet- 29 Co. Civ. Proc, § 2623. ing, by certifying in their own names, 30 Co. Civ. Proc, § 1864. any uncertified wills, and by signing 31 Co. Civ. Proc, § 2630. and certifying in their own names, the 207 The Probate of Wills. §§ 251, 252. wltlain the State or Territory or foreign country wliere the de- cedent so resided, and is filed or recorded in the proper office, etc., a copy of such will, or of the record thereof, and of the proofs, or of the record thereof, etc., may he recorded with the surrogate of any county where the real property is situated.^^ Where a will of personal property made by a nonresident at the time of the execu- tion thereof, or at the time of his death, has been admitted to probate within a foreign country, or within the State or the Territory of the United States, where it was executed, or where the testator resided at the time of his death, the Surrogate's Court having jurisdiction of the estate must, upon an application made as prescribed in this article, accompanied by a copy of the will, and of the foreign letters, if any have been issued, authenticated as prescribed in this article, record the will and the foreign letters and issue thereupon ancillary letters testamentary, or ancillary letters of administration with the will annexed, as the case requires. ^^ § 251. Filing nonresident's will with secretary of state.— Where the surrogate admits to probate the will of a person who was not a resident of the State at the time of his death, or grants original or ancillary letters testamentary upon such a will, or original or ancillary letters of administration upon the estate of such a per- son, he must, within ten. days thereafter, transmit to the secretary of state, to be filed in his ofiice, a certified copy of the will or letters. The svirrogate's fees for making the copy, and the ex- penses of transmission, must be audited by the comptroller, and paid out of the treasury upon his warrant.^* § 252. Copies of record of ancient wills as evidence. — It is pro- vided that " the exemplification of the record of a will, proved 32 Co. Civ. Proc, § 2703, as amended land, 68 App. Div. 182.) See Taylor 1900 (L. 1900, t. 759). The produe- v. Syme, 162 N. Y. 513; Lockwood v. tion of such a record is presumptive Lockwood, supra. It will be observed evidence of such will and the execu- that no provision is made for the issu- tion thereof, fib. ) In Bromley v. Mil- ance of letters testamentary on aueh ler (2 *r. & C. 575), it was held that a will. Hence, whether an executor of the record here of such a will and such a recorded will has qualified him- proofs is equivalent to proof of the self to exercise a power of sale in will in this State. But see Lockwood respect to land in this State must de- V. Lockwood, 51 Hun, 337; Matter of pend upon what he has done at the Langbein, 1 Dem. 448; Matter of place of foreign probate. (Pollock v. Shearer, 1 Civ. Proc. Rep. 455; Matter Hooley, 22 N. Y. Supp. 215.) of Nash, 37 Misc. 706. The " pre- 33 Co. Civ. Proc, § 2695. As to au- sumptive evidence " is overcome, how- thentication of such wills, see Co. ever, where the record shows on its Civ. Proc., § 2704. face that the will was not properly ad- Si Co. Civ. Proc, § 2503. mitted to probate. (Meiggs v, Hoag- § 252. The Peobate of Wills. 208 before the judge of the former Court of Probate, and recorded in his office before the 1st day of January, in the year 1785, cer- tified 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 had been made for the original -will." ^^ "An exemplified copy of the last will and testa- ment of any deceased person, which has been admitted to probate, whether as a will of real or personal property, or both, and re- corded in the office of the surrogate in any county of this State, shall be admitted in evidence in any of the courts of this State, without the proofs and examination taken on the probate thereof, and whether such proofs shall have been recorded or not, vwth like effect as if the original of such will had been produced and proven in such court, tvhen thirty years have elapsed since the will was admitted to probate and recorded. And the recording of such will shall be evidence that the same was duly admitted to probate. The exemplification of the record of a will which has been proved before the surrogate or judge of probate, or other officer exercis- ing the like jurisdiction, of another State must, when certified by the officer having by law, when the certificate was made, custody of the record, be admitted in evidence, as if the original will was produced and proved, when thirty years have elapsed since the will was proved." *® The evidential effect of a decree granting probate vsdll be con- sidered hereafter, under the head of decrees generally, and their effect as adjudications.^^ 35 Co. Civ. Proe., § 2631. emplifieations in such eases supersede 36 Co. Civ. Proc, § 2632, as amended the necessity of proving anew the exe- 1901 (L. 1901, c. 540). The object of eution of the will on producing the the originals of the foregoing provi- exemplification. (Ackley v. Dygert, 33 sions, relating to wills which may be Barb. 176.) termed ancient, waa to make the ex- sT See c. XXI, post. CHAPTER VII. THE VALIDITY, CONSTRUCTION, AND EFFECT OF WILLS. § 253. Implied power to construe wills. — As a necessary incident to their general powers to control executors, to direct the pay- ment or charging of legacies and the like, Surrogates' Courts have always exercised the right and the power to look into the will and determine its true construction; and this power has always been considered to be as extensive as the power to which it is incident. As an incident to their duty to settle the accounts of executors, and to decree distribution of the estate, remaining in their hands, " to the persons entitled, according to their respec- tive rights," '■they may, therefore, construe a will so far as it may be necessary to determine to whom the legacies are payable and whether any of them should abate. These questions, to some extent, at least, require the court to decide whether a legacy attempted to be made is invalid or ineffectual as being obnoxious to the rule against perpetuities,' or to the statute limiting chari- table gifts to one-half of the estate,^ or as being in violation of some statute, or settled rule of law which restrains or limits the power of testamentary alienation.* So, in a proceeding to revoke letters testamentary, it may be necessary for the court to con- strue the will in order to determine whether or not the executors were guilty of the waste charged, in turning over the estate to one of their number as an absolute devisee and legatee.* These cases proceed upon the principle that wherever, in any proceeding touching the administration of the estate, in which the validity of the will is pertinent to the matter in hand, the court will deter- mine the question; as where, for example, it appears, on the ac- counting of an executor, that the testatrix had married subse- quently to the execu.tion of the will, the court vnW not hesitate 1 Matter of Verplanck, 91 N. Y. 439 ; 4 Fernbaeher v. Fernbacher, 4 Dem. Rigg V. Cragg, 26 Hun, 89 ; 89 N. Y. 227. Compare Matter of Ellis, 1 Con- 479; Purdy v. Hayt, 92 id. 446; Mat- noly, 206; Matter of Soule, id. 18. ter of French, 52 Hun, 303; 23 St. So, in assessing the inheritance tax. Rep. 450. the court may determine what estate 2 Stephenson v. Short, 92 N. Y. 433. passed under" the will. (Matter of sTappen v. Methodist Church, 3 Ullmann, 137 IST. Y. 403; Matter of Dem. 187; Dubois v. Brown, 1 id. 317; Peters, 69 App. Div. 465; 74 N. Y. Matter of CoUyer, 4 id. 24. Supp. 1028.) 14 [209] § 254. Validity, Consteuction, Etc., of Wills. 210 to declare the will revoked, and direct a distribution as in a case of intestacy.^ § 254. Express jurisdiction — The original statute® required that, " before recording any will or admitting the same to probate, the surrogate shall be satisfied of its genuineness and validity." It was claimed that this requirement involved the necessity of examining the contents of the instrument propounded, before decreeing probate, and of summarily rejecting so much of it as the court might find illegal or inefliectual for any cause; but it was decided that the statute only required, as a condition of granting probate, that the court should be satisfied that the in- strument was " valid," as a will, not that it should declare each or any of its provisions valid; in short, that the factum of the will was the only issue in a probate proceeding, and the court would not examine its contents except as they bore upon the question of its execution and authenticity.^ In 1870, the Legis- lature conferred power upon the Surrogate's Court of ISTew York county, in a proceeding to prove a will, to pass upon the validity o_f any of its provisions or their legal effect, when called in ques- tion by any heir or next of kin of decedent, or by any legatee or devisee named in the will, to the same extent that the Supreme Court had jurisdiction to pass upon and determine the true con- struction, validity, and legal effect thereof.^ This jurisdiction, 5 Matter of Davis, 1 Tuck. 107. So N. Y. Supp. 791; Baldwin v. Smith, in an accounting proceeding the court 3 App. Div. 350; 38 N. Y. Supp. 299. may ascertain the intention of the tes- When, however, upon an accounting, tator in regard to the compensation to no question of distribution is before be made to the executors. ( Matter of the court, any direction as to the Thompson, 5 Dem. 117.) On a motion future is not binding upon the court to open a decree on a final accounting when the question becomes a present and to modify it, the court may con- one. (Matter of McCahill, 29 Misc. strue the will with a view of deter- 450; 61 N. Y. Supp. 1071.) S. P., mining whether the testator's widow Matter of Haight, 51 App. Div. 310; had the right to a life use, only, of per- 64 N. Y. Supp. 1029. sonal property which the executor was 6L. 1837, c. 460, § 17. bound to turn over to her as trustee 7 Matter of McLaughlin, 1 Tuck. 79. of the remaindermen. ( Kelsey v. Van The present Code ( § 2622 ) , adopting Camp, 3 Dem. 530.) See Matter of the statute of 1837, defined the "va- Finn, 1 Misc. 280 ; Matter of Havens, lidity," of which the court was to in- 8 id. 574; 29 N. Y. Supp. 1085; Mat- quire, on a will being offered for pro- ter of Metcalfe, 6 Misc. 524 ; 27 N. Y. bate, to be " the validity of its Supp. 879; Matter of Young, 17 Misc. execution." 680; s. c, as Matter of Cornell, 41 8 L. 1870, c. 359, § 11. It was held, N. Y. Supp. 539; affd., 15 App. under this statute, that even if some Div. 285; Matter of Perkins, 75 of the provisions of the will created Hun, 129; 26 N. Y. Supp. 958; Matter an unlawful suspension of ownership, of Owens, 24 Civ. Proc. Rep. 256 ; 33 this was no objection to the probate of N. Y. Supp. 422 ; Matter of Davenport, the will, and the court refused to pass 37 Misc. 179; 74 N. Y. Supp. 940; upon the question before admitting the Matter of Raymond, 73 App. Div. 11; will to probate. (Wade v. Holbrook, Matter of Vandevort, 8 id. 341; 40 2 Redf. 378.) 211 Validity, CoisrsTEtrcTioN, Etc., of Wills. § 255. considerably curtailed, is now enjoyed by all surrogates,® though it is said that the principle of the two statutes is the sanie.'^'* The jurisdiction is confined to the cases of wills of personal property, and such a will must be that of a resident of this State, and have been executed within this State. ^^ It is, therefore, far from conferring upon these courts the same powers and juris- diction which the Supreme Court has in such a matter. The jurisdiction to construe wills which these courts now enjoy is only new in that it may be exercised not only, as heretofore, inci- dentally to some other proceeding in the course of the adminis- tration of the estate, but it may be exercised before the admin- istration has begun, and in the same proceeding by which the factum of the will is sought to be established. By the same de- cree which admits the instrument to probate as the validly exe- cuted will of a capable testktor, the surrogate " must," if required, construe the document with the view of determining its " va- lidity " and " eilect," that is, so far as they can be determined by " construction," according to the rules of law governing that subject. Where the question of the validity of the will is not material or pertinent, the court will decline to entertain it.-'^ § 255. Limits of jurisdiction. — Notwithstanding this extension of their powers in this regard, the rule still is, that Surrogates' Courts have no authority to construe a will, except as it is ex- pressly conferred by statute, or as it is a necessary incident to some other power expressly conferred.-'^ K'o statute expressly confers upon them any jurisdiction of a direct, independent pro- ceeding for the construction of a will. The will having once been admitted to probate, the court has not power to entertain a new, independent proceeding for its construction.-'^* This object 9 Co. Civ. Proc, § 2624. to file an inventory and why he should 10 Jones V. Hamersley, 4 Dem. 427. not be removed from office, the sur- 11 The fact that the testator was a rogate has power to construe a will resident does not give jurisdiction, if was questioned in Wilde v. Smith (2 the will was executed outside the Dem. 93 ) . The force and effect of a State. (Tiers v. Tiers, 2 Dem. 209.) testamentary provision cannot be A " resident," as used in this section, finally determined upon an appliea- must mean a resident at the time of tion for an advance upon a legacy, the testator's death. See Co. Civ. (Rank v. Camp, 3 Dem. 278.) Proc, § 2694. This limitation is con- 13 Washbon v. Cope, 144 N. Y. 287 ; fined, apparently, to cases where the 63 St. Rep. 716. Jurisdiction cannot question is rsiised directly in a pro- be conferred by consent. (Matter of bate proceeding, as authorized by sec- Campbell, 88 Hun, 374; 34 N. Y. Svipp tion 2624. ' 831.) 12 Whether, upon an application to 1* Bevan v. Cooper, 72 N. Y. 317; require an executor to show cause why Matter of McCIouth, 9 Misc. 385 ; 30 he should not be attached for failure N. Y. Supp. 274. § 255. Validity, Coxsteuction, Etc., of "Wills. 212 can be accomplished either as an incident to the probate pro- ceeding, or afterward, as an incident to some other proceeding, where the due administration of the estate makes it necessary that it should be done. The authority of a Surrogate's Court to pass upon the validity of dispositions of property by will, in a proceeding for its probate, is limited (1) to the case of wills of residents of this State, executed within the State; and (2) to dispositions of personal property therein attempted to be made. In regard to the testator's residence and the place where he executed his will, I apprehend that the limitation applies only to probate proceedings, and that if the question of the validity or effect of a foreign will, or the will of a nonresident, necessarily arises in a proceeding affecting the administration of the estate iinder it, the court should not refuse to determine it. The limitation, depending xipon the species of property involved in the dispositions of the will sought to be construed, has now been defined with precision by the court of last resort, after no little uncertainty had been created through discussion in the trial courts. It is now settled that the law is now, as it has always been, that Surrogates' Courts have no jurisdiction, either direct or indirect, to determine the validity, construction, or effect of devises of real property. Although the Code declares it necessary that a petition for probate should state whether the will relates, or purports to relate, exclusively to real or personal property, or to both, and that the will must be admitted " as a will valid to pass real property or personal property or both " (§ 2623), this does not vest the surrogate with the power to determine whether the instrument, upon its face, is sufficient, in terms and legal effect, to convey the title to any of testator's real property. The extent of the surrogate's jurisdiction, on a probate proceeding, is to examine the will to ascertain whether it purports, or is sufficiently comprehensive, to dispose of real property, and if it does, he is then to decide that it shall be admitted to probate as a will valid for such a purpose, provided he finds it to have been executed, and the petition and citation so require; the effect of his decision goes no farther.-'^ Where 15 Matter of Merriam, 136 N. Y. 58 ; from whose decree the appeal was 48 St. Rep. 897. In that case the will taken had refused, on the probate pro- contained but a single paragraph by ceeding, to entertain the question which, after the payment of his debts, whether or not the devise was void, — ■ testator devised and bequeathed " all a decision which was affirmed. See my property and estate, real and per- Matter of Schweigert, 17 Misc. 186: sonal, to the government of the United 40 N. Y. Supp. 979. The decision in States of America." The surrogate Bevan v. Cooper (72 N. Y. 317) was 213 Validity, Co:vsTEUcTio]sr, Etc., of "Wills. § 256. the dispositions relate to both kindo of property, and they are not inseparably connected, the courts may undertake to construe those which relate to personal property exclusively,^*' otherwise they will not.^^ The exercise of the express statutory authority of these courts to construe a will is also limited to the single proceeding, to wit : an original proceeding to probate a will. The question of the validity or effect of the will on its face cannot, therefore, be raised in a proceeding to revoke a probate on allegations filed, under section 2647 et seq. of the Code;** nor upon an application for letters of administration with the will annexed.-"® § 256. Scope of constniction of will. — If the subject is suscepti- ble of being reduced to a general rule, it may be gathered, from the cases, 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, without resort to extrinsic evidence. The investigation must be confined to questions arising between the parties to the proceeding, as be- tween different legatees or between heirs-at-law and legatees growing out of the terms of the xuill.^ A question, for example, which involves the title of the property bequeathed, as between the estate and a third person, who claims it adversely to the will, never was triable in a Surrogate's Court, and is not made triable by the new statute. Such a question should be reserved until a representative is appointed to defend the estate, and can then be tried only, as between him and the claimant, in a common-law court where a jury trial is guaranteed, except in cases of equitable cognizance.^* A tribunal engaged in proving placed principally upon the ground Rep. 745; 125 N. Y. 762), but the ths,t the Act of 1870, c. 359, § 11, gave point was not raised. the surrogate power to determine 16 See Jones v. Hamersley, 4 Dem. questions of construction, only in the 427 ; Matter of Fuller, 22 St. Rep. 352. proceeding for probate, though whether l'' Matter of Shrader, 63 Hun, 36 ; the court possessed jurisdiction of such 17 N. Y. Supp. 273; Matter of Mer- a question in any proceeding was dis- riam, supra; Matter of Morganstern, cussed, with the conclusion stated in 9 Misc. 198; 30 N. Y. Supp. 215. the text. See Hillis v. Hillis, 16 Hun, 18 Matter of Ellis, 1 Connoly, 206 : 76; Currin v. Fanning, 13 id. 458; 22 St. Rep. 77; Matter of Watson, 131 Matter of French, 52 id. 303 ; Marx v. N. Y. 587 ; 42 St. Rep. 877. McGlynn, 4 Redf. 485; 88 N. Y. 357; 19 Matter of Smith, 41 St. Rep. 337; Prive V. Foucher, 3 Dem. 339. The 18 N. Y. Supp. 174. cases of Matter of Look (22 St. Rep. 20 Matter of Walker, 136 N. Y. 20; 86), and Matter of Marcial (37 id. 48 St. Rep. 893: Matter of Keleman, 569), so far as they hold that surro- 126 N. Y. 73; 36 St. Rep. 390. gates have authority to determine the 21 Matter of Walker, 136 N. Y. 20. validity of a devise, are overruled. In that case, the will gave certain leg- The former case was affirmed (26 St. aeies which were described as moneys § 257. Validity, Cojs^steuction, Etc., of Wills. 214 a will is not a fit place, nor is the time appropriate, 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 amount one-half the estate, after the payment of all just debts. The question of the quantum of the estate is not triable in a probate proceeding, for the reason that its solu- tion does not require a construction of the will or a determina- tion of the legal effect of its provisions under the statute. Whether or not there shall be an abatement of the charitable bequests, and if so to what extent, will be determined in the course of the administration of the estate, at the instance of the representative.^^ The question whether a legacy in the will pro- pounded was created, not by a direct or express gift, but was to be inferred from language which shows an intention to give a legacy,^^ and the question whether the will, by its terms, established any trust, and if so whether that trust is valid,^ are properly cognizable by the surrogate when raised on a probate proceeding; but in neither case can the court go beyond the lan- guage of the will itself. If, in the latter case, there are any extrinsic grounds for impressing a trust ex maleficio in favor of heirs or next of kin upon the bequest, an action for such a pur- pose must be brought in equity where the power resides for granting that relief. ISTotvidthstanding the mandatory language of the statute that " the surrogate must determine " the issue of validity, when raised on the probate, the court is bound to con- sider the limited extent of its general jurisdiction, and its in- adequacy to deal with certain questions, which belong more prop- erly to common-law courts. § 257. Who may invoke jurisdiction The mere fact that one is a party to a controversy over the probate of the instrument does not entitle him to insist that, before entry of a decree according probate, the court shall pass upon all questions which he may deposited in certain savings banks by him, and so were void for the excess, the testator, as trustee for the lega- as the testator left children surviving. tees, a portion of which deposits were Held, that the surrogate had no juris- drawn out by the testator and con- diction in proceedings for probate to verted to his own use. Upon probate determine those questions. See also of the will, the beneficiaries named ap- McClure v. Woolley, 1 Dem. 574. peared and claimed that the moneys so 22 Matter of Walker, supra; Matter deposited did not belong to the testa- of Mullen, 25 Misc. 253; 55 N. Y. tor at his death, but to the persons Supp. 432. designated as beneficiaries; it was also 23 Matter of Vowers, 113 N. Y. 569. claimed that certain legacies to char- See Smith v. Floyd, 71 Hun, 56; 24 itable and religious institutions ex- N. Y. Supp. 610; aflFd., 140 N. Y. 337. ceeded one-half of the estate left by 24 Matter of Keleman, 126 N. Y. 73. 215 Validity, Construction, Etc., of Wills. § 257. see fit to raise respecting the validity, construction, or effect of the will, or of any of its provisions.^^ No person can command the exercise of such jurisdiction, unless, under the will whose provisions he seeks to have interpreted, he claims some interest in the personal estate bequeathed, or unless, on the other hand, he claims that because of the invalidity of the testator's disposi- tion of such personalty or of some portion thereof, he is en- titled to share in the same under the Statute of Distributions.^ A legatee who has accepted a legacy under a will is estopped from contesting the validity of the will.^^ Where the circum- stances of the case are such that, in accordance with its course and practice, the Supreme Court would not exercise its juris- diction, the Surrogate's Court ought not to.^^ It ought not to be understood that the jurisdiction of a Surrogate's Court to interpret a will can only be invoked by the parties at whose in- stance a court of equity will act. For while neither an heir-at- law or next of kin claiming in hostility to a will,^* nor a devisee,®" or legatee,*' can maintain an action to obtain a construction thereof, they may do so, in a proper case, in these courts. The jurisdiction of courts of equity, to pass upon the interpretation of wills, is incidental to that over trusts, and where the will 25 Jones V. Hamersley, 4 Dem. 427 ; the exercise by the surrogate of the 1 St. Rep. 319; 9 Civ. Proc. Eep. 293. power conferred by section 2624, un- In that case, the court refused to pass less, in accordance with the course and upon the validity of a power of ap- practice of the Supreme Court, that pointment conferred upon a life ten- tribunal would, under similar eircum- ant, pending the lifetime of the latter, stances, exercise its jurisdiction." notwithstanding the mandatory Ian- (Per Rollins, S., in Jones v. Hamers- guage of the statute, " the surrogate ley, supra. ) must determine," etc. 29 Chipmau v. Montgomery, 63 N. Y. 28 Jones V. Hamersley, supra; Mat- 221. Compare Meserole v. Meserole, 1 ter of Campbell, 88 Hun, 374; 34 N. Hun, 66; Stinde v. Ridgeway, 55 How. Y. Supp. 831 : Matter of Robertson, 23 Pr. 301 ; Marlett v. Marlett, 14 Hun, Misc. 450; 51 N. Y. Supp. 502. See 313. Rich V. Tiffany, 2 App. Div. 25; 37 3o Duncan v. Duncan, 4 Abb. N. C. N. Y. Supp. 330 ; Fraser v. Hoguet, 65 275. App. Div. 192. But it is immaterial 31 Sutherland v. Ronald, 11 Hun, whether he seeks to maintain or to 238; Brundage v. Brundage, 65 Barb, destroy its provisions. (Simmons v. 397. Although an action may be main- Burrell, 8 Misc. 388; 28 N. Y. Supp. tained by an executor in respect to 625.) personal property, or by a legatee 27Gibbins v. Campbell, 148 N. Y. (Wager v. Wager, 89 N. Y. 161), it 410; 42 N. E. 1055; Matter of Soule, cannot be sustained on the ground of 1 Connoly, 18; Matter of Peaslee, a doubt on which it does not appear 73 Hun, 113; 25 N. Y. Supp. 940; that the executor and the legatee dif- Matter of Richardson, 81 Hun, 425; fer, nor on the ground of a doubt in 30 N. Y. Supp. 1008. See Baldwin v. respect to which the executor is not Palen, 24 Misc. 170; 53 N. Y. Supp. yet called upon to act and may never 520; Walker v. Taylor, 15 App. Div. be; — as in the case of a contingent 452 ; 44 N. Y. Supp. 446. gift. (Wead v. Cantwell, 36 Hun, 28 "An occasion does not arise for 528; affd., 108 N. Y. 255.) § 258. Validity, Construction, Etc., of Wills. 216 contains no trusts, a suit will not be entertained for the sole purpose of construction, nor where legal rights only are in con- troversy.^^ § 258. Principles governing construction. — Having defined the jurisdiction of these courts to determine, by construction, the validity and effect of a testamentary disposition of personal prop- erty (whether incidentally to the probate of the will; or to the administration of the estate, after probate), 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. ^^ 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 taking, or an intention to override public policy or settled rules of law. On the other hand, where there is an uncertainty, ap- parent 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. In other words, the question in ex- pounding a will is not what the testator meant, as distinguished from what his words express, but simply — what is the meaning of his words? 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,^* free of conjecture, under the guidance of precedents and rules of law, taking into 32Mellen v. Mellen, 139 N. Y. 210; Williams, 8 id. 525; Quin v. Skinner, 54 St. Rep. 670. See Wager v. Wager, 49 Barb. 128 ; Dupre v. Thompson, 4 21 Hun, 93; Bailey v. Briggs, 56 N. Y. id. 279; Tucker v. Tucker, 5 id. 103; 407; Chipman v. Montgomery, 63 id. Martin v. Ballou, 13 id. 119; Richards 221; Kalish v. Kalish, 166 id. 368; v. Northwest P. D. Church, 32 id. 42; Smith V. Roelcefeller, 5 Sup. Ct. (T. & Ryckman v. Gillis, 6 Lans. 79; Dar- C. ) 562 ; Meserole v. Meserole, 1 Hun, ling v. Rogers, 22 Wend. 489 ; Murray 66. V. Bronson, 1 Dem. 217 ; Sweet v. Bur- ssMontignani v. Blade, 74 Hun, 297; nett, 136 N. Y. 204; 49 St. Rep. 113; 26 N. Y. Supp. 670; 145 N. Y. 111. Meehan v. Brennan, 16 App. Div. 395; 34 1 R. S. 748, § 2. See Myers v. 45 N. Y. Supp. 57 ; Moak v. Moak, 8 Eddy, 47 Barb. 263; Terpening v. App. Div. 197; 40 N. Y. Supp. 438; Skinner, 30 id. 373; Fosdiek v. Dela- Matter of Van Home, 25 Misc. 391; field, 2 Redf. 392; Wager v. Wager, 55 N. Y. Supp. 651; Gwyer v. Gwyer, 96 N. Y. 164; Freeman v. Coit, id. 63; 5 App. Div. 156; 38 N. Y. Supp. 1097; Williams v. Freeman, 83 id. 561; affd., 160 N. Y. 659; Marks v. Halli- Underhill v. Vandervoort, 56 id. 242; gan, 61 App. Div. 179; 70 N. Y. Supp. Bridger v. Pierson, 45 id. 601 ; Morris 444. V. Ward, 36 id. 587, 595 ; Williams v. 217 Vatidity, Consteuction, Etc., of Wills. § 258. view the circumstances under which it was made.^^ If the in- tention of the testator is evinced from language free from am- biguity, evidence concerning it is not admissible.^® Where it cannot have effect to its full extent, it must have effect as far as possible.^'' 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.^* If, however, it is impossible to reconcile two inconsistent provisions, the latter must prevail.^® In construing a will, the intention of the testator is to govern in preference to a general rule of con- struction, where they come in conflict.*" Every expression is to be construed, if practicable, so as to give effect to all parts of the will, and not to nullify any,*^ to avoid intestacy,*^ and the disinheritance of the natural objects of the testator's bounty.*^ The rule of construction that the in- Rep. 748; 18 N. Y. Supp. 535; and tention of the testator is to govern, cases supra. although it may not he in entire har- 37 Brown v. Lyon, 6 N. Y. 420 ; mony with the language of the will, Chrystie v. Phyfe, 19 id. 348; Oxley is not to be resorted to where the Ian- v. Lane, 35 id. 340 ; Savage v. Burn- guage is explicit and free from doubt, ham, 17 id. 577; Kane v. Gott, 24 even in case where the court may be Wend. 665. of opinion that had the testator an- 38 Taggart v. Murray, 53 N. Y. 233 ; tieipated that which happened after Van Veehten v. Keator, 63 id. 52. his death, he would have made a dif- 39 Noble v. Thayer, 19 App. Div. ferent disposition of the remainder. 446; 46 N. Y. Supp. 302. See Hen- (.Baylies v. Hamilton, 36 App. Div. derson v. Merritt, 10 App. Div. 397; 133; 55 N. Y. Supp. 390; affd., 165 41 N. Y. Supp. 885. N. Y. 641.) 40 Matter of James, 146 N. Y. 78; 35 Whether a will should be con- 66 St. Rep. 246; Matter of Brown, 154 strued as of the time of its execution N. Y. 313. or as of the time of testator's death is « Hard v. Ashley, 117 N. Y. 606; to be determined by his intention and Terry v. Wiggins, 47 id. 512, 517. But depends upon the peculiar circum- it is not permissible to refer to a stances of each case (Moifett v. Bl- clause which is doubtful for the sole mendorf, 82 Hun, 470; 31 N. Y. Supp. purpose of obscuring another which is 726; affd., 152 N. Y. 475), and for clear. (Fothergill v. Fothergill, 80 the purpose of ascertaining that Hun, 316; 30 N. Y. Supp. 292.) intention the court may reject words 42 Vernon v. Vernon, 53 N. Y. 351, and limitations, supply or transpose 361 ; Kalish v. Kalish, 166 id. 368 ; 59 them, to get at the correct meaning. N. E. 917; Haight v. Pine, 3 App. (Benjamin v. Welch, 73 Hun, 371; Div. 434; 39 N. Y. Supp. 511; New- 26 N. Y. Supp. 156; Karstens v. Kar- comb v. Newcomb, 33 Misc. 191; 68 stens, 29 App. Div. 229; 51 N. Y. N. Y. Supp. 430 ; Zone v. Zone, 4 Misc. Supp. 795.) But the court has no 559; Meehan v. Brennan, 16 App. Div. power, in its construction of wills, to 395; 45 N. Y. Supp. 57; Hughes v. insert clauses made necessary by a Mackin. 16 App. Div. 291 ; 44 N. Y. change in the circumstances of the Supp. 710; Sanford v. Goodell, 82 property subsequent to the will and Hun, 369. for which the testator did not provide. 43 Goodwin v. Coddington, 154 N. Y. (Parker v. Butler, 76 Hun, 240; 27 283; Matter of Miller, 18 App. Div. N. Y. Supp. 805.) 211; 45 N. Y. Supp. 956; affd., 155 seWadsworth v. Murray. 161 N. Y. N. Y. 646; Sage v. Wheeler, 3 App. 274; 55 N. E. 910; Schmeig v. Div. 38 ; 37 N. Y. Supp. 1107; Shangle Kochersberger, 18 Misc. 617; 43 N. Y. v. Halloek, 6 App. Div. 55; 39 N. Y. Supp. 748; Bradhurst v. Field, 45 St. Supp. 619. §§ 259, 260. Validity, Construction, Etc., of Wills. 218 § 259. Clerical errors. — Obvious clerical errors, patent upon the face of the instrument, may be corrected. Thus " and " may be read "or," and conversely;** "as" may be read "because;"*^ " reviving " may be read " surviving;" *® and " leave " may be read " have." « § 260. Statutory restrictions. — The statutes of this State re- strict 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 personal property, (3) accumu- lations of rents and profits of land, or of the income of personal property, and (4) in respect to benevolent, literary, and other bequests. Restrictions are also imposed in respect to the per- sons 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 compli- cated 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 apparent, cannot be corrected by extrinsic evi- dence that the testator intended otherwise than the words of the will express. Punctuation may be resorted to when no other means can be found of solving an ambiguity, but not in cases where no real ambiguity exists, except what punctuation creates itself.*^ A statement of the statutory rules on the subject vdll be all that the scope and purpose of this volume will permit. No mention is made here of the statutory rules and limitations re- garding the creation of express trusts of real property,*^ and of 44 Jackson V. Blanshan, 6 Johns. 54; changed to read " as joint tenants and Van Veehten v. Pearson, 5 Paige, 512; not as tenants in common," see Walter Roosevelt v. Thurman, 1 Johns. Oh. v. Ham, 68 App. Div. 381; 75 N. Y. 220; Grim v. Dyar, 3 Duer, 354; Scott Supp. 185. V. Gruernsey, 48 N. Y. 106. 48Arcularius v. Sweet, 25 Barb. 403. 45 Sharp V. Dimmick, 4 Lans. 496. When the punctuation accords with 46 Pond v. Bergh, 10 Paige, 140. the sense, the use of a capital in the 47 Du Bois V. Ray, 35 N. Y. 162. middle of a sentence must be regarded The word " sell " may be supplied be- as accidental and should not be per- fore the word " and," or the word mitted to confuse a construction other- " and " be omitted in order to carry wise reasonably clear. (Kinkele v. Wil- out the evident intention of the testa- son, 151 N". Y. 269; 45 N. E. 869.) tor. (Hall V. Thompson, 23 Hun, 334.) 49 i R. S. 728, § 55; L. 1896, c. 547, For a case where the words " as joint § 76. tenants and tenants in common " were 219 Validity, Construction, Etc., of Wills. § 261. future estates in laiids,°" as they do not include or affect trusts or bequests of personal property, as to which alone these courts have any concern.^^ § 261. Suspension of absolute ownership ^ As to personal prop- erty, the absolute ownership cannot be suspended longer than during the continuance, 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, limita- tions of future or contingent interests in personal property are subject to the rules prescribed in relation to future estates in lands. ^^ The phrase " suspense of absolute ownership," as used in this statute in relation to personal property, is said to mean the same thing as " suspense of the power of alienation," as applied to real property,^^ 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 abso- lute ownership of personal property, and vice versa. That period must be measured by existing lives, 'or by some more proximate event which must happen during life, and the persons whose lives are to furnish the measure of the suspension must be desig- nated or referred to, so as to be capable of ascertainment in the insti*ument by which the disposition is made.®* Thus, a trust to continue for a period, or until a date, specified, is not valid.®® The period of suspension, to which it is the purpose of the 50 1 R. S. 722, §§ 14r-16; L. 1896, Mise. 39; Montignani v. Blade, 145 N. c. 547, § 27. Y. Ill; 64 St. Rep. 558; Matter of Bl Trusts of personal property may Ackermann, 36 Misc. 752 ; 74 N. Y. be created for any purpose not pro- Supp. 477; Fairchild v. Edson, 154 N. hibited by law. (Holmes v. Mead, 52 Y. 199. Absolute ownership is not N. Y. 332, 343; Bucklin v. Bucklin, 1 suspended merely because the executor Keyes, 141 ; Brown v. Harris, 25 Barb, may require a period of time not 134; Gott V. Cook, 7 Paige, 521; Fos- measured by lives in which to execute ter V. Coe, 4 Lans. 53; Roosevelt v. the power of sale. (Deegan v. Wade, Roosevelt, 6 Hun, 31; Tabernacle Bap- 144 N". Y. 573; 64 St. Rep. 240.) A tist Church v. Fifth Ave. Baptist child en ventre sa mere at the tes- Church, 60 App. Div. 327; 70 N. Y. tator's death is a "life in being." Supp. 181.) (Cooper v. Heatherton, 65 App. Div, 52 1 R. S. 773, §§ 1, 2; L. 1897, c 561; 73 N. Y. Supp. 14.) 417, § 2. 55 Staples v. Hawes, 39 App. Div. 53 Emmons v. Cairns, 3 Barb. 243; 548; 57 N. Y. Supp. 452; Matter of Morton v. Morton, 8 id. 18. In Con- Snyder, 48 St. R^p. 643; 21 N. Y. verse v. Kellogg (7 Barb. 590), a dif- Supp. 430; Kalish v. Kalish, 166 N. Y. ferent view is taken. 368; 59 N. E. 917; Steinway v. Stein- 54Everitt v. Everitt, 29 N. Y. 39; way, 10 Misc. 563; 32 N. Y. Supp. Wilber v. Wilber, 165 id. 451; 59 183. N. E. 264; Matter of Murray, 34 § 262. Validity, Consteuction, Etc., of Wills. 220 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 property, the lives must be " in being at the creation of the estate;" and in the case of a be- quest 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 vrhich the period of suspension is reckoned. So the statutory term, " two lives in being," applies equally, and in the same sense, to suspension occasioned by con- tingencies, trusts, and powers in trust; to postponement of vest- ing, 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.®® It, therefore, 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.®^ § 262. Accumulations of income of personal property. — Accumu- lations 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 accumulations of rents and profits of real estate.®* The statute provides®® that the accumulation of the income of personal property may be directed as follows: (1) If the accumulation is directed to commence from the date of the instrument or from the death of the person executing the same, it must be for the benefit of one or more minors** then in being,'^"' or in being at such death, and terminate at or before the expira- 56 Sawyer v. Cubby, 146 N. Y. 192; § 51.) See Mason v. Jones, 2 Barb. 66 St. Rep. 582. 229; Savage v. Burnham, 17 N. Y. 561. 57 Williams v. Montgomery, 148 N ML. 1897, c. 417, § 4; 1 R. S. 774, Y. 519; 43 N. E. 57; Mills v. §§ 3, 4. Mills, 50 App. Div. 221 ; 63 N. Y. 6o See Boynton v. Hoyt, 1 Den. 53, Supp. 771. Consult, in this eonnec- 58; Hawley v. James, 16 Wend. 61. A tion, L. 1893, c. 452, and L. 1897, direction to accumulate and apply in- e. 417, § 3, which enables the bene- come to the discharge of incumbrances fioiary of a life interest, with the is void. (Matter of Fisher, 4 Misc. assistance of the remainderman, to 46; McComb v. Title Guarantee & terminate a trust and dispose of the Trust Co., 36 id. 370; 73 N. Y. Supp. entire interest. 554; Matter of Snyder, 35 Misc. 588; 58 Directions for the accumulation of 72 N. Y. Supp. 61.) See Hascall v. rents and profits of real estate, except King, 28 App. Div. 280; 51 N. Y. for the period during which the power Supp. 73; 162 N. Y. 134. of alienation of the estate itself can ei Gilman v. Reddington, 24 N. Y. be limited, are void. (L. 1896, c. 547, 19; Kilpatrick v. Johnson, 15 id. 322. 221 Validity, Constkuctiox, Etc., of Wills. § 263. tion of their majority,®^ or, (2) if the accumulation is directed to commence at any time subsequent to the above, it must com- mence 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 ac- cumulation is for a longer term than during the minority of the beneficiaries, the direction, whether separable or not from other provisions of the instrument,^ is void only as respects the time beyond such minority.®* In other words, a direction for an illegal accumulation does not render a legacy wholly void, but the direc- tion may be stricken out and the legacy and the general pur- poses for which it was given may remain.®^ Implied directions to accumulate are as much within the pro- hibition of the statute as those expressly given. If, upon compar- ing the provisions of the will vidth the condition of the estate, it is apparent that the testator intended an unauthorized accumula- tion, this intention cannot be carried into effect, and any pro- vision of the will which is dependent upon it is void. This, how- ever, is never permitted to affect any portion of th© will not necessarily connected with the illegal accumulation, and which can be readily executed independently of it.*® § 263. Effect of illegal suspension. — The statute®^ gives to the persons presumptively entitled to the next eventual estate, in- come accruing during a suspension of the absolute ownership, and 62 A gift of property to executors in Williams, 8 N. Y. 525.) And see trust to receive rents and profits and Trustees of Theological Seminary v. deposit the same in a savings bank for Kellog, 16 id. 83; Wetmore v. Parker, ten years and then sell and divide the 52 id. 450; Matter of Abbott, 3 proceeds and accumulations among Redf. 303; Stanton v. Miller, 58 N. children, all of whom were of full age, Y. 192 ; Livingston v. Gordon, 7 Abb. is void. (Brandt v. Brandt, 13 Misc. N. C. 53; Matter of Wesley, 43 St. 431; 34 N. Y. Supp. 684.) So, too, a Rep. 952; 17 N. Y. Supp. 304. provision requiring the creation of a 65 Williams v. Williams, 8 N. Y. fund from the income of each child's 525. See also Dodge v. Pond, 23 id. share and the annual reinvestment of 69; Manice v. Manice, 43 id. 303; the surplus income until the final dis- Robinson v. Robinson, 1 Lans. 117; tribution when the youngest reaches Haxtun v. Corse, 2 Barb. Ch. 506; the age of 25. (Horndorf v. Horn- Craig v. Craig, 3 id. 76; Kilpatrick v. dorf, 13 Misc. 343; 34 N. Y. Supp. Johnson, 15 N. Y. 322; Bonard's Will, 660.) ■ 16 Abb. Pr. (N. S.) 128, 208; Matter 63 See Williams v. Williams, 8 N. Y. of Roos, 4 Misc. 232 ; 24 N. Y. Supp. 525; Kilpatrick v. Johnson, 15 id. 322; 862. King V. Rundle, 15 Barb. 139. 66 Dodge v. Pond, 23 N. Y. 67, 79 ; 64 This statute does not apply to or Chaplin, Suspension, etc., § 430 et seq. affect property given in perpetuity to 67 L. 1896, c. 547, § 53 ; 1 R. S. 726, religious corporations incorporated un- § 40. der the general statute. (WilJiams v.. §§ 264-266. Validity, Consteuction, Etc., oi- Wills. 222 of which no disposition or valid accumulation is directed. It is no longer doubtful that this provision applies to the case of income from personal estate;^* but, it seems, only vsrhere such income is derived from some specific fund, or is distinguishable from that of all other property."® § 264. Trust gifts to literary Institutions Eeal 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; (3) to pro- vide and keep in repair a burial place for the dead ; (4) for any other specific purpose contemplated in the general objects author- ized by their respective charters. § 265. Bequests to city or village corporation for certain purposes. — Real 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 diffusion of knov^ledge, or for the relief of dis- tress,™ 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. ^^ And property may also be granted to superintendents of common schools of any town, and to trustees of school districts, in trust for the benefit of the common schools of the tovra, or of the schools of the district.''^ § 266. Other trusts — Except as above, the purposes for which trusts of personal property may be created are not defined or 68 Cook V. Lowry, 29 Hun, 20. See 1041 ; Sanford v. Goodell, 82 Hun, Meldon v. Devlin, 31 App. Div. 146; 369; 31 N. Y. Supp. 490; Matter of 53 N. Y. Supp. 172; aflfd., 167 N. Y. Snyder, 35 Miao. 588; 72 N. Y. Supp. 573. 61. 69 Dodge V. Pond, 23 N. Y. 69, 79 ; 70 While a bequest of personal prop- Grant v. Grant, 3 Eedf. 283; Thomas erty to a town for the support of its V. Pardee, 12 Hun, 151. The operation poor is valid, a devise of real estate and application of this statute are for that purpose is void. (Poadick v. further illustrated in Pray v. Hege- Hempstead, 29 St. Rep. 545; 8 N. Y. man, 92 N. Y. 508; Barbour v. De Supp. 772.) Forest, 95 id. 13; Delafield v. Ship- Tl Matter of Crane, 12 App. Div. man, 103 id. 463; Delafield v. Barlow, 271; 42 N. Y. Supp. 904; affd., 159 107 id. 535; Sehettler v. Smith, 41 id. N. Y. 557 (citing Le Couteulx v. City 328; Cook v. Lowry, 95 id. 103, 107; of Buffalo, 33 N. Y. 342; Clements v. Williams v. Williams, 8 id. 525; Kil- Babcock, 26 Misc. 90; 56 N. Y. Supp. Patrick v. Johnson, 15 id. 322; Potter 527.) V. McAlpine, 3 Dem. 108; Matter of T2L. 1840, c. 318; L. 1841, c. 261; Sands, 20 St. Rep. 850; Smith v. L. 1846, c. 74; L. 1855, c. 432; L. 1890, Secor, 31 App. Div. 103; 52 N. Y. c. 160; L. 1892, c. 25. See Adams v. Supp. 562; affd., 157 N. Y. 402; Clark Perry, 43 N. Y. 487; Yates v. Yates, V. Clark, 23 Misc. 272; 50 N. Y. Supp. .9 Barb. 324. 223 Validity, CONSTEUCTION, EtC. OF Wills. §266. limited by the statute — it would be impracticable to do so, — but whatevei' the scheme of the trust, the purpose must be defi- nite'^ 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.'^* 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.''^ 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 is, 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.''® Presumably to secure to the public the fruits of the benevolent intentions of testators against the dangers incident to this rule, 73 Matter of Seott, 31 Misc. 85; 64 N. Y. Supp. 577; McComb v. Title Guarantee & Trust Co., 36 Misc. 370; 73 N. Y. Supp. 554. 74 Adams v. Perry, 43 N. Y. 487; Tilden v. Green, 54 Hun, 231; 130 N. Y. 29. 75 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 bene- ficiaries. (Matter of Jackson, 20 N. Y. Supp. 380; People v. Powers, 147 N. Y. 104; 69 St. Rep. 403.) So, too, a clause in the will authorizing the executors to distribute testator's jew- elry 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.) A bequest, "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 pro- vision that all of testator's property remaining after paying his debts should be expended for a monument at his grave, is not void on the ground that there is no ascertained bene- ficiary. (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. Os- born, 65 Hun, 585; 20 N. Y. Supp. 474; Spencer v. De Witt C. Hay Library Assn., 36 Misc. 393 ; 73 N. Y. Supp. 712; Matter of Botsford, 23 Misc. 388; 52 N. Y. Supp. 238; aflfd., 37 App. Div. 73; Edson v. Bartow, 10 App. Div. 104; 41 N. Y. Supp. 723 (modified in other respects in 154 N. Y. 199) ; Pratt v. Roman Catholic Orphan Asylum, 20 App. Div. 352 ; Beecher v. Yale, 45 N. Y. Supp. 622 ; Clapp v. Byrnes, 3 App. Div. 284 ; 38 N. Y. Supp. 1063; Wyman v. Wood- bury, 86 Hun, 277; 33 N. Y. Supp. 217; 66 St. Rep. 845; Butler v. Trus- tees, etc., 92 Hun, 96; 36 N. Y. Supp. 562. 76 Matter of Wright, N. Y. Law J., Jan. 10, 1893; Holland v. Alcoek, 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 be- quest. 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.) § 267. Validity, Constrttction, Etc., of Wills. 224 the statute provides that, " ITo gift, grant, bequest or devise to religioiis, educational, charitable, or benevolent uses, which shall, in other respects, be valid under the laws of this state, shall or be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the in- strument creating the same. If in the instrument creating such a gift, grant, bequest or devise there is a trustee named to execute the same, the legal title to the land or jDroperty given, granted, devised or bequeathed for such purposes shall vest in such trustee. If no person be named as trustee, then the title to such lands or property shall vest in the supreme court." '^^ § 267. 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 dis- close upon its face, but must be proved, it is obvious that no ques- tion 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. ''* It is declared by statute,™ 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, scien- tific, religious, or missionary society, association, or corporation. 77 L. 1893, c. 701, § 1; L. 1901, c. 20; Matter of Counrod, 27 Misc. 475; 291. This statute has no application 59 N. Y. Supp. 164; and § 256, cmte. to the will of a person who died prior 79 L. 1860, c. 360. A bequest to the to its passage. (Butler v. Trustees, pastor of a designated church for etc., supra. ) The purpose of the act masses to be said for the repose of the was to restore the law of charitable soul of testatrix, is not within the trusts as declared in Williams v. Wil- operation of this statute. (Vander- liams, 8 N. Y. 525. Hence, a residuary veer v. McKane, 25 Abb. N. C. 105.) bequest to trustees named, for the pur- Nor does it apply to a gift to a public pose of founding a home for the aged, corporation (Matter of Crane, 12 App. to be located in the city of Syracuse Div. 271; 42 N. Y. Supp. 904) ; nor for the benefit of those who by mis- to bequests to individuals to found fortune have become incapable of pro- charities. (Allen v. Stevens, 161 N. viding for themselves, etc., the dura- Y. 122; 55 N. Y. Supp. 568.) The tion of the trust not being limited by claim that the proposed beneficiaries lives, — Held to be valid and not sub- are foreign corporations with no in- ject to the objections of indefiniteness hibition as to inking by devise or be- or creating a perpetuity. (Allen v. quests in their charters or under the Stevens, 161 N. Y. 122; 55 N. E. law of the State of their domicile, and 568.) See Hull v. Pearson, 36 App. that the statute as to them is not Div. 224 ; 55 N. Y. Supp. 324 ; Matter operative, is not relevant, the status of Fitzsimons, 29 Misc. 204. For a of the testator and not that of the similar statute as to charitable devises, beneficiary being the question for con- see L. 1896, c. 547, § 93. sideration. (Scott v. Ives, 22 Misc. 78 See Matter of Walker, 136 N. Y. 749; 51 N. Y. Supp. 49.) 225 Validity, Consteuction, Etc., of Wills. § 267. in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts. Such a devise or bequest is declared to be valid to Ae 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.^" The intent of the statute cannot be defeated by the testator's bequeathing to two or more corporations in the aggregate more than he can give to a single object, viz., one-half of his estate.^^ The proportionate value of the amount given to the corporation, as compared to that of the entire estate, is determined by ascer- taining the cash value of the gift, and also of the entire estate, at the testator's death. *^ For the purpose of ascertaining the estate, the Avidow's dower,*^ and the debts,®* are first to be deducted. The restriction may be insisted on by any one who would derive a benefit from the estate,*^ or may be waived f^ but as the obvious design of the statute is to inhibit the' disherison of persons stand- ing in near relation to testators, with natural claims upon their 80 Kearney v. Missionary Society, 10 Abb. N. C. 274. See Matter of Mo- derno, 5 Dem. 288. Where the gift is to the oflBcers, trustees, or other repre- sentatives of the corporation, and the intent to make the gift to the corpora- tion appears, it will vest in the latter instead of the former. (Manice v. Manice, 43 N. Y. 303, 314, 387; Cham- berlain v. Chamberlain, id. 424, 437 ; Holmes v. Mead, 52 id. 332 ; New York Inst, for the Blind v. How, 10 id. 84; Van Deuzen v. Trustees, etc., 4 Abb. Ct. App. Dec. 465 ; Curriu v. Fan- ning, 13 Hun, 458; Matter of Isbell, 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; First Presbyterian Church, etc. v. McKallor, 35 App. Div. 98 ; 54 N. Y. Supp. 740 ; Preston v. Howk, 3 App. Div. 43; 37 N. Y. Supp. 1079; aflfd., 154 N. Y. 734.) As to the applicability of the law against perpetuities to gifts un- der this statute, see Wetmore v. Parker, 52 N. Y. 450 ; Holmes v. Mead, id. 332; Adams v. Perry, 43 id. 487, 500, and cases in next two notes. 81 Chamberlain v. Chamberlain, 43 N. Y. 424; 3 Lans. 355. See also Bas- com V. Albertson, 34 id. 584, 616; Har- ris V. American Bible Soc, 2 Abb. Ct. 15 App. Dec. 316; Matter of Leary, 1 Tuck. 235 ; Currin v. Fanning, 13 Hun, 458 ; 2 Eedf. 526 ; Matter of Stone, 15 Misc. 317; 37 N. Y. Supp. 583. 82 Harris v. American Bible Soc, 2 Abb. Ct. App. Dee. 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. The surro- gate will not undertake, by reference or otherwise, to ascertain the amount of the devise, until the party inter- ested in the disputed devise is brought in, and in the meantime probate will be suspended. (Curren v. Sears, 2 Redf. 526; 13 Hun, 458.) 83 Chamberlain v. Chamberlain, 43 N. Y. 424, 440. 84 Wetmore v. Parker, 52 N. Y. 450. For the rule to determine proportion- ate 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. 85 See Jones v. Kelly, 63 App. Div. 614; 72 N. Y. Supp. 24; affd., 170 N. Y. 401; Hemmje v. Meinen, 20 K Y. Supp. 619. 86 Trustees, etc. v. Ritch, 91 Hun, 509; 36 N. Y. Supp. 576; aflfd., 151 N. Y. 282; 45 N. E. 876. § 267. Validity, Constetjction, Etc., of Wills. 226 bounty, it follows that if a testator has no relatives of the desig- nated class, the statute does not apply.*^ By another statute,*® no such devise o» bequest is valid, unless the will was made and executed at least two months before the death of the testator. The statute applies to a bequest, executed within the prohibited period; although it is a mere re-enactment of a provision in a former. will.*® This statutory provision is ap- plicable, however, only to corporations formed under the general law made by that statute, or those whose charters refer to it and make its provisions applicable.®" But the statute is not applicable to a corporation incorporated in another State by whose laws it is authorized to take the gift.®^ 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 valid by the law of the place where the gift is to take effect, and which governs the trustees and the property when transmitted there.®^ On the other hand, if the laws of the foreign State, like our own, prohibit the bequest, it will be declared void here.®^ 8T Matter of Simpson, N. Y. Law J., Supp. 1049 ; Matter of Fitzsimmons, March 4, 1893 (N. Y. Surr. Ct.). See 29 Misc. 731; 62 N. Y. Supp. 1009; cases supra. Matter of Cornelius, 23 Misc. 434; 51 88 L. 1848, c. 319, § 6. See Vander- N. Y. Supp. 877. See Matter of veer v. McKane, 25 Abb. N. C. 105; Norton, 39 App. Div. 369; 57 N. Y. Lawrence v. Elliott, 3 Eedf. 236; Cur- Supp. 407. Thus, it does not aflfect rin V. Fanning, 13 Hun, 459; Hemmje membership corporations (Spencer v. V. Meinen, 20 N. Y. Supp. 619; Cle- De Witt C. Hay Library Assn., 36 ments v. Babeock, 26 Misc. 90; 56 N. Misc. 393; 73 N. Y. Supp. 712; Mat- Y. Supp. 527. This act was not re- ter of Lampson, 22 Misc. 198 ; 33 App. pealed by the act of 1860 (Lefevre v. Div. 49; 161 N. Y. 511) ; nor religious Lefevre, 59 N. Y. 434. See Kerr v. corporations organized under special Dougherty, 79 id. 327) ; nor by L. acts, in the absence of express words 1881, c. 319, which extends the rights making them subject to them (Mat- of corporations formed under the Act ter of Hardy, 28 Misc. 307; 59 N. Y. of 1848 to take a larger amount by Supp. 912; Matter of Foley, 27 Misc. devise or bequest; "subject, however, 77; 58 N. Y. Supp. 201) ; nor a, pub- to the restrictions " contained in that lie corporation ( Clements v. Bab- act. (Matter of Conner, 44 Hun, cock, 26 Misc. 90; 56 N. Y. Supp. 424.) See HoUis v. Drew Theo. Sem., 527). 95 N. Y. 166 ; Riker v. New York Hos- 91 Matter of Lampson, 161 N. Y. pital, 66 How. Pr. 246; Wardlaw v. 511; 56 N. E. 9. Home, etc., 4 Dem. 473. 92 Hope v. Brewer, 136 N. Y. 126; 89 Matter of Benedict, 32 St. Rep. 48 St. Rep. 834 ; Matter of Huss, 126 139. N. Y. 537; 37 St. Rep. 789; Doty v. 90 Stephenson V. Short, 92 N. Y. 433 ; Hendrix, 16 N. Y. Supp. 284; Cross Matter of Kavanagh, 125 id. 420; Hoi- v. United States Trust Co., 131 N. Y. lis V. Drew Theo. Sem., 95 id. 171; 330; 43 St. Rep. 254; Matter of Stur- Lefevre v. American Female Guardian gis, 164 N. Y. 485; Matter of Leo- Soc, 59 id. 434; Fairchild v. Edson, Wolf, 25 Misc. 469; 55 N. Y. Supp. 154 id. 199; Peoples' Trust Co. v. 650. Smith, 82 Hun, 494; 31 N. Y. Supp. 93 Kerr v. Dougherty, 79 N. Y. 327; 519; Matter of Brush, 35 Misc. 689; Matter of Robertson, 23 Misc. 450; 51 72 N. Y. Supp. 421; Pritchard v. N. Y. Supp. 502. See Carter v. Board Kirsch, 58 App. Div. 332 ; 68 N. Y. of Education, 68 Hun, 435, as to where 227 Validity, Constkuction, Etc., of Wills. § 268. § 268. Bequests to corporations. — A corporation cannot take by devise or bequest unless expressly authorized by its charter, or by general statute.®* Hence a devise of lands to a cor- poration for charitable uses, which that corporation has not pov^er to take, is void,®^ e. g., a devise to the United States for the pur- poses of a general charity. The government exists under grants of power, express or implied, in a written constitution, and the functions of all the departments are definitely limited and ar- ranged, and it is not within its express or implied powers to administer a charity.®^ So an unincorporated society or associa- tion is incapable of taking an immediate gift under a will as devisee or legatee. Subsequent incorporation will not enable it to take the bequest.®^ An association, though unincorporated, is, the void bequest goes. Where the etc., 3 Sandf. 351. And see Fontain residue is given to three religious and v. Ravenel, 17 How. (U. S.) 369. charitable corporations to be equally 96iievy v. Levy, 33 N. Y. 97; Mat- divided between them, and two of such ter of Fox, 52 id. 530. As to the corporations are unable to take, be- power of a. Surrogate's Court to pass cause the will was made within two on this question, see Matter of Mer- months of testator's death, the third riam, 136 N. Y. 58; § 255, ante. The is not entitled to the entire fund, but city of New York has capacity at com- the lapsed shares pass to the next of mon law and by statute to take per- kin. (Simmons v. Burrell, 8 Misc. sonal property by bequest. (Matter 388; 28 N. Y. Supp. 625.) of Crane, 12 App. Div. 271; 42 N. Y. 94 1 R. S. 57, § 3. See Hollis v. Supp. 904.) Drew Theo. Sem., 95 N. Y. 166; 97 White v. Howard, 46 N. Y. 144; Spencer v. De Witt C. Hay Library Williams v. Williams, 8 id. 524; Assn., 36 Misc. 393; 73 N. Y. Supp. Owens v. Missionary Soc, 14 id. 380; 712; First Presbyterian Church, etc. V. Marx v. McGlynn, 88 id. 357; Sher- McKallor, 35 App. Div. 98; 54 N. Y. wood v. American Bible Soc, 4 Abb. Supp. 740. Ct. App. Dec. 227; 1 Keyes, 561; 95Boyce v. City of St. Louis, 29 Bonard's Will, 16 Abb. Pr. (N. S.) Barb. 650; Matter of McGraw, 45 128; Lutheran Eef. Church v. Mook, Hun, 354. The former English law of 4 Redf. 513; First Presbyterian Soc. charitable uses is not, and never was, v. Bowen, 21 Hun, 389; Riley v. Diggs, in force in this State (Cottman v. 2 Dem. 184; Carpenter v. Historical Grace, 112 N. Y. 299, 306; Holmes v. See., id. 574; Matter of Y. M. C. A., Mead, 52 id. 332; Holland v. Alcock, 22 App. Div. 325; 47 N. Y. Supp. 854; 108 id. 312, 336) ; and the doctrine of Matter of Rounds, 25 Misc. 101; Falr- cy pres has no place in our law. child v. Edson, 154 N. Y. 199. Com- (Beekman v. Bonsor, 23 N. Y. 298, pare Dammert v. Osborn, 140 id. 310; Levy v. Levy, 33 id. 97, 138; 30. Trustees of an unincorporated Bascom v. Albertson, 34 id. 584.) An educational institution under the di- entirely new system has been adopted rection and control of a quarterly authorizing and limiting gifts to meeting of the Society of Friends, charity ; and all uses and trusts, ex- — Held capable of taking a bequest, cept those authorized by the statute, (Underbill v. Wood, 65 N. Y. Supp. are abolished. (1 R. S. 727, § 45.) 1105; afifd. in 53 App. Div. 640.) A The English law, and the changes devise to an incorporated society in effected by our statutes, are reviewed trust for an unincorporated association in Holland v. Aleoek, 108 N. Y. 312; is good, if the latter is incorporated Matter of McGraw, 111 id. 66; Bas- before the money is payable. (Phil- com V. Albertson, 34 id. 584; Levy v. son v. Moore, 23 Hun, 152.) Under Levy, 33 id. 97; Yates v. Yates, 9 a devise, "At the death of my wife, I Barb. 324, 338-341 ; Ayres v. Trustees, give and devise " to a society, not in- f 269. Validity, Construction, Etc., of Wills. 228 however, entitled to take a legacy for a pious itse/* and hence has a right to intervene and become a party to the probate proceed- ing. ®® An executory bequest, limited to the use of a corporatioc to be created within the period allowed for the vesting of future estates and interests, is valid / and a bequest to a foreign corpora- tion is valid if it is capable of taking under the laws of the State of its creation.^ § 269. Canons of interpretation. — The following are the rules governing the construction of wills^ most likely to be applied in proceedings in the Surrogate's Court: 1. All the parts of a will are to be construed in relation to each other,* and so as, if possible, to form one consistent whole;* but where several parts® are absolutely^ irreconcilable, the latter must prevail; unless the general scope of the will leads to a contrary conclusion.* 2. Several testamentary instruments, executed by the same testator, are to be taken and construed together as one corporated at the time of testator's * Areularius v. Geisenhainer, 3 death, but incorporated at the time of Bradf. 64; a£fd., 25 Barb. 403; Eger- the death of his wife, the society can ton v. Conklin, 25 Wend. 224, 338; take, because the title does not vest Covenhoven v. Shuler, 2 Paige, 130. until the death of the wife. (Lougheed B Carter v. Hunt, 40 Barb. 89. V. Dykeman's Baptist Church, 58 Hun, ^ Whether in the same or different 364; 12 N. Y. Supp. 207; aflfd., 129 sentences. (Morrall v. Suttan, 1 Phil- N. Y. 211.) Compare People v. Simon- lips, 537, 547.) son, 126 id. 299; 37 St. Rep. 371. T Van Nostrand v. Moore, 52 N. Y. 8S Potter V. Chapin, 6 Paige, 639; 12; "Van Vechten v. Keator, 63 id. 52; De Witt V. Chandler, 11 Abb. Pr. 459; Sweet v. Chase, 2 id. 79; Covenhoven Owens V. Missionary Soc, 14 N. Y. v. Shuler, 2 Paige, 123; Trustees of 380, and eases cited. See Pratt v. Theological Seminary v. Kellogg, 16 N. Roman Catholic Orphan Asylum, 20 Y. 88; Norris v. Bevea, 13 id. 284; App. Div. 352; 46 N. Y. Supp. 1035; Campbell v. Rawdon, "l8 id. 414; Grif- affd., 166 N. Y. 593. fen v. Ford, 1 Bosw. 123; Bradstreet 99 Carpenter v. Historical Soc, 1 v. Clarke, 12 Wend. 602. Compare Dem. 606. Lovett v. Gillender, 35 N. Y. 617; 1 Rose v. Rose, 4 Abb. Ct. App. Dec. Everitt v. Everitt, 29 id. 39. 108; Phelps V. Pond, 23 N. Y. 69, 77; 8 Where two clauses of a will are so Cruikshank v. Home for the Friend- inconsistent and irreconcilable that less, 113 id. 337; Matter of Mayor, they cannot possibly stand together, etc., of New York, 55 Hun, 204; 119 the one that is posterior in position N. Y. 660 ; Burrill v. Boardman, 43 will be considered as indicating a sub- id. 254 ; Lougheed v. Dykeman's Bap- sequent intention, and will prevail, un- tist Church, 58 Hun, 364; aflfd., 129 less the general scope of the will leads N. Y. 211. to a contrary conclusion ; and although 2 Chamberlain v. Chamberlain, 43 N. the latter clause be invalid, it must, Y. 424; Riley v. Driggs, 2 Dem. 184; nevertheless, be retained, and consid- Hope V. Brewer, 136 N. Y. 126; Mat- ered for the purpose of ascertaining ter of Huss, 126 id. 537; 37 St. Rep. the intentions of the testator, and for 789 ; Congregational, etc., Soc. v. Hale, this purpose it is as effectual, and its 29 App. Div. 396; 51 N. Y. Supp. 704. operation upon the preceding clause is See § 267, ante. the same, as though no legal obstacle s Taken mostly from the Draft of to its being carried into execution ex- Civil Code, reported in 1865. isted. (Van Nostrand v. Moore, 52 N. 229 Validity, Constkuction, Etc., of Wills. § 269. instrument.* 3. A clear and distinct devise or bequest cannot be affected by any reasons assigned therefor,^" or by any other words not equally clear and distinct,^^ or by inference or argu- ment from other parts of the will,^^ or by any inaccurate recital of or reference to its contents in another part of the will.-'' 4. Where the meaning of any part of a will is doubtful or ambigu- ous, it may be explained by any reference thereto, or recital thereof, in another part of the will.^* 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 collected, and that other can be ascertained.^® 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 inop- erative.*^ 7. Of two modes of interpreting a will, that is to be preferred which will prevent either a total or a partial intestacy.** 8. Where there are two equally probable interpretations of the language of a will, that one is to be adopted which prefers the Y. 12.) s. p., Harrison v. Jewell, 2 Dem. 37; Matter of Mauice, 31 Hun, 119. See Haug v. Schumacher, 166 N. Y. 506; 60 N. E. 245. 9 Howland v. Union Theo. Sena., 5 N. Y. 193, 214; Haven v. Haven, 1 Redf. 374; Lynch v. Pendergast, 67 Barb. 501 ; Pierpont v. Patrick, 53 N. Y. 591. 10 Cole V. Wade, 16 Ves. 27. See Thompson v. Whitlock, 5 Jur. (N. S.) 991. llThornhill v. Hall, 2 CI. & F. 22; Barclay v. Maskelyne, H. R. V. Johns. 126. This rule applies equally to prior (Greenwood v. Sutcliflfe, 14 B. & C. 226) and to subsequent words (Arcu- larius v. Geisenhainer, 3 Bradf. 75 ; aflfd., 25 Barb. 403; Kiver v. Oldfleld, 4 De G«x & J. 30 ; Borrell v. Haigh, 2 Jur. 229 ; Haight v. Pine, 3 App. Div. 434; 39 N. Y. Supp. 511; Banzer v. Banzer, 156 N. Y. 429; 51 N. E. 291; Clay V. Wood, 153 K Y. 134: 47 N. E. 274; Matter of Peters, 69 App. Div. 465; 74 N. Y. Supp. 1028.) 12 Campbell v. Harding, 2 Russ. & M. 409; Jennings v. Newman, 10 Sim. 223. is.Hillersdon v. Lowe, 2 Hare, 355, 372 ; Mortimer v. Hartley, 3 De Gex & Sm. 332. Where the meaning of the testator is apparent from the language of a will, the plain import of the lan- guage cannot be departed from, though it result in rendering the will invalid. (Van Nostrand v. Moore, 52 N. Y. 12.) 14 Hoppoek 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. 15 Hone V. Van Sehaick, 3 N. Y. 538 ; Lytle V. Beveridge, 58 id. 592 ; Cromer V. Pinckney, 3 Barb. Ch. 466 ; Abbey v. Aymar, 3 Dem. 400; Bullock v. Downes, 9 H. of L. Cas. 24. As to the use of the word " money " in a will, see Sweet v. Burnett, 136 N. Y. 204; 49 St. Rep. 113. 18 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; Crosbv v. Wendell, 6 id. 548 ; Staats v. Staats, 11 Johns. 337. "Griffen v. Ford, 1 Bosw. 123, 140; Mason v. Jones, 2 Barb. 229 ; Butler v. Butler, 3 Barb. Ch. 304; Pond v. Bergh, 10 Paige, 140; Chrystie v. Phyfe, 19 N. Y. 348 ; Dubois v. Ray, 35 id. 162; Post v. Hover, 33 id. 593; Bates V. Hillman, 43 Barb. 645 ; Corse V. Chapman, 153 N. Y. 466; 47 N. E 812. 18 Vernon v. Vernon, 53 N. Y. 351; Kalish V. Kalish, 166 id. 368; 59 N E. 917. § 269. Validity, Consteuctioit, Etc., of Wills. 230 kin of the testator to strangers.^'' 9. Technical words are not necessary to give effect to any species of disposition by a will;^'' but, where used in a will, they are to be taken in their technical sense,^^ unless the context clearly indicates a contrary intention. ^^ 10. A devise or bequest of " all the testator's real or personal prop- erty " in express terms, or in any other terms denoting his intent to dispose of all his real or personal property (except of the resi- due), passes all the real or personal property which he was enti- tled to dispose of by will at the time of his death.^^ 11. A testa- mentary disposition to " heirs," " relations," " nearest relations," " representatives," " legal representatives," or " personal repre- sentatives," or " family," " issue," " descendants," " nearest," or " next of kin," of any person, without other words of qualifica- tion, and when the terms are used as words of donation, and not of limitation, vests the property in those who would be entitled to succeed to the property of such person. These terms 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 es- tate given to the ancestor of such person.^* 12. Words in 19 Quinn ,v. Hardenbrook, 54 N. Y. porting to devise " all the real or per- 83 ; Wood V. Mitcham, 92 id. 375 ; Mat- sonal property " of the testator. (L. ter of Boyce, 37 Misc. 146; 74 N. Y. 1897, e. 417, '§ 6. See Van Wert v. Supp. 946; Matter of Lee, 65 Hun, Benedict, 1 Bradf. 114.) As to the 524; 20 N. Y. Supp. 579; affd., 141 effect of a devise of the residue of the N. Y. 58. testator's estate, see Van Cortlandt v. 20 Jackson v. Luquere, 5 Cow. 228 ; Kip, 1 Hill, 596 ; 7 id. 352, and Tucker Parks V. Parks, 9 Paige, 117; Bliven v. Tucker, 5 N. Y. 348. V. Seymour, 88 N. Y. 469, 476. 24 As to "next of kin," "heirs," 21 Moore v. Lyons, 25 Wend. 154, " issue," etc., see Keteltas v. Keteltas, 155; Campbell v. Rawdon, 18 N. Y. 72 N". Y. 312; Luce v. Dunham, 69 id. 417; Brown v. Lyon, 6 id. 419; Jack- 36; Smith v. Scholtz, 68 id. 42; Lud- son v. Luquere, 5 Cow. 228 ; Keteltas lum v. Otis, 15 Hun, 410 ; Pinckney v. V. Keteltas, 72 N. Y. 312. Pinckney, 1 Bradf. 269. Compare 22Corrigan v. Kiernan, 1 Bradf. 208; Bundy v. Bundy, 38 N. Y. 410; Heard Sherwood v. Sherwood, 3 id. 230; De v. Horton, 1 Den. 165; Kiah v. Gre- Kay V. Erving, 5 Den. 646; Parks v. nier, 56 N. Y. 220; Cushman v. Hor- Parks, 9 Paige, 107. ton, 59 id. 149; Soper v. Brown, 136 23 2 E. S. 57, § 5. See McNaughton id. 244; Drake v. Drake, 134 id. 220: V. McNaughton, 41 Barb. 50; Meeksv. Wadsworth v. Murray, 29 App. Div. Meeks, 161 N. Y. 66; 55 N. E. 278; 191; 51 N. Y. Supp. 1038; affd., Seibert V. Miller, 34 App. Div. 602 ; 55 161 N. Y. 274; Canfield v. Fallon, N. Y. Supp. 593 ; Toerge v. Toerge, 9 26 Misc. 345 ; 57 N. Y. Supp. 149 ; App. Div. 194; 41 N. Y. Supp. 244. Snider v. Snider, 160 N. Y. 151; The term "heirs," or other words of 54 N. E. 676; Matter of Fidelity, inheritEinGe, are not requisite to de- etc., Co., 57 App. Div. 532; 68 N. Y. vise a fee, and a devise of real prop- Supp. 257; Daly v. Greenberg, 69 erty passes all the estate of the testa- Hun, 228 ; 23 N. Y. Supp. 582 ; Matter tor, unless otherwise limited. ( 1 E. S. of U. S. Trust Co., 36 Misc. 378 ; 73 748, § 1; L. 1896, c. 547, § 210.) Eeal N. Y. Supt). 635; Emmet v. Emmet, or personal property, embraced in a. 67 App. Div. 183; 73 N. Y. Supp. 614: power to devise, passes by a will pur- Hilliker v. Bast, 64 App. Div. 552; 72 231 Validity, Consteuction, Etc., of Wills. § 269. a will referring to death,^" or survivorship,^'^ simply^ relate to the time of the testator's death, unless possession is ac- tually postponed, when they must be referred to the time of possession.^^ So far as facts and circumstances are sus- N. y. Supp. 301; Matter of Moore, 152 N. Y. 602; Chwatal v. Sehreiner, 148 id. 683; 43 N. E. 166; Newcomb V. Lush, 84 Hun, 254; 32 N. Y. Supp. 526; aflfd., 155 N. Y. 687; Montignani V. Blade, 145 N. Y. Ill; 64 St. Rep. 558; Bodine v. Brown, 154 N. Y. 778; 49 N. E. 1093; Johnson v. Brasing- ton, 156 N. Y. 181; 50 N. E. 859. As to meaning of " heirs " and " is- sue " in a remainder limited to take effect on the death of a person without heirs or issue, see L. 1896, u. 547, § 38. A widow is neither next of kin nor heir. (Snider v. Snider, 11 App. Div. 171; affd., 160 N. Y. 151; Matter of Devoe, 171 id. 281; Piatt v. Mickle, 137 id. 106; 50 St. Eep. 91.) Com- pare Matter of Mesereau, 38 Misc. 208. The word " wife " means a woman who is legally married. (Miller v. Miller, 79 Hun, 197.) A legacy to the testator's " natural heirs," — Held, to be a designation of his next of kin, in the absence of any- thing tending to some other interpre- tation as more consonant with his in- tention, and that his widow was not included within the description. { Mat- ter of Sinzheimer, 5 Dem. 321.) The surrogate cited Tilman v. Davis, 95 N. Y. 17; Drake v. Pell, 3 Edw. Ch. 251; Slosson v. Lynch, 43 Barb. 147; Murdock v. Ward, 67 N". Y. 387; Ket- eltas V. Keteltas, 72 id. 312; and distinguished Miller v. Churchill, 78 N. C. 372; Ludlum v. Otis, 15 Hun, 410. "Relations," when used in will relating to personalty only, embraces persons within the Statute of Distribu- tions. (Gallagher V. Crooks, 132 N. Y. 338 ; 44 St. Rep. 436. ) So, too, of the words "lawful heirs." (Cogan v. Mc- Cabe, 23 Misc. 739; 52 N. Y. Supp. 48. ) " Lawful issue " held not to in- clude an adopted child; although it had a right to inherit. (N. Y. Life, etc., Co. V. Viele, 161 N. Y. 11; 55 N. E. 311.) A bequest in trust for a son for life, remainder at his death to " his lawful issue then living," given by a will exe- cuted in 1886, where testator knew his son had had an illegitimate child, and that the son married the mother of the child in 1885, — Held, not to carry the remainder to such child, notwithstand- ing the enactment of L. 1896, c. 272, § 18, legitimizing children whose parents married after their birth. (C. S. Trust Co. V. Maxwell, 26 Misc. 276; 57 N. Y. Supp. 53.) See Harrison v. McAdam, 38 Misc. 18. " Descendants " does not include col- laterals. (Tompkins v. Verplanck, 10 App. Div. 572; 42 N. Y. Supp. 412; 154 N. Y. 634.) 25 Adams v. Beekman, 1 Paige, 631; Ive V. King, 16 Beav. 41; Howard v. Howard, 21 Beav. 550; Schenek v. Ag- new, 4 Kay & J. 405. See Chapman V. Moulton, 8 App. Div. 64; Conkie v. Grisson, 24 Misc. 115; 52 N. Y. Supp. 500; Newcomb v. Lush, 84 Hun, 254: 32 N. Y. Supp. 526; affd., 155 N. Y. 687; Washbon v. Cope, 144 id. 287; 63 St. Rep. 716: Benson v. Corbin, 145 N. Y. 351; 64 St. Rep. 815; Mat- ter of Geissler, 72 App. Div. 85; Nel- son V. Russell, 135 N. Y. 137 ; 48 St. Rep. 64- Stokes v. Weston, 142 N. Y. 433. 26 Young V. Robertson, 4 Macq. 319, 330; Young v. Davies, 9 Jur. (N. S.) 399. The contrary was held as to real property in Moore v. Lyons, 25 Wend. 119), on the supposed English rule; but that rule does not exist. ( Taaf e v. Connor, 10 H. of L. Cas. 77; 22 Beav. 271.) It makes no difference that there is a postponment without any preceding life interest. (Hodgeson v. Micklethwaite, 2 Drcwry, 294.) Thi,^ rule is not now law where the life tenant dies before the testitor. (Spur- rell v. Spurrell, 11 Hare, 154.) 2T The rule, that words of survivor- ship refer to the time of the testator's death, applies only to an absolute gift to one and, in case of his death, to an- other; it has no application in a case where the first devisee or legatee takes a life estate. (Mullarky v. Sullivan. 136 N. Y. 227; Matter of Denton, IS'T id. 428; 51 St. Rep. 60; Lyons v. Weeks, 53 App. Div. 212; 65 N. Y Supp. 818; affd., 167 N. Y. 135; Gal- way v. Bryce, 10 Misc. 255 ; 30 N. Y. eupp. 985.) See Matter of Cramer, 170 N. Y. 27J; Cromwell v. Crom- well, 55 App. Div. 103; Ackerman v. Ackerman, 63 id. 370 ; Matter of Baer, § 269. Validity, Construction^, Etc., of Wills. 232 ceptible of anticipation by the testator, so as to enable him to place himself in the position in which he will be at the time of his death, relatively to his property and his family, he is presumed to speak in his will with reference to that time.^^ But whenever a testator refers to an actually existing state of things, his language will be held to refer to the date of the will, not to that of his death.^® 13. A testamentary disposition to a class includes every person answering the description at the testator's death ;^'' but when the possession is postponed to a future period, it includes also all persons coming within the description be- fore the time to which possession is postponed. ^^ 14. When 147 N. Y. 348; 69 St. Rep. 694. Com- per capita. (Woodward v. James, 44 pare Stokes v. Weston, 142 N. Y. 433. Hun, 95; 115 N. Y. 346.) 28 De Peyster v. Clendining, 8 Paige, 31 Teed v. Morton, 60 N. Y. 502 ; Kil- 295,; 26 Wend. 21; Doubleday v. New- patrick v. Johnson, 15 id. 322; Tucker ton, 27 Barb. 431. See Collin v. Collin, v. Bishop, 16 id. 402; Johnson v. Val- 1 Barb. Ch. 630; Van Veehten v. Van entine, 4 Sandf. 36. Compare Double- Veghten, 8 Paige, 104; Lynes v. Town- day v. Newton, 27 Barb. 444; Hoppoek send, 33 N. Y. 558; McNaughton v. v. Tucker, 59 N. Y. 202; Bisson v. McNaughton, 34 id. 201; Van Alstyne West Shore E. Co., 143 id. 125; 62 v. Van Alstyne, 28 id. 375; Egerton v. St. Rep. 133; Sehwencke v. Haffner, Conklin, 25 Wend. 224. 22 Misc. 293; 50 N. Y. Supp. 165; 29 Wetmore V. Parker, 52 N. Y. 451 ; Cox v. Wisner, 43 App. Div. 591; Livingston v. Gordon, 84 id. 136; aflfd., 167 N. Y. 579. There are Rogers v. Rogers, 153 id. 343; 47 numerous cases where the words N. E. 452. Where a, devise is to one " children," " nephews," " nieces," and who does not take by purchase, and other descriptive terms of classes or could not take by inheritance, and is relations have been subjects of judicial of lands now owned by the testator, construction. The general principle is the word " now " will be construed, as that these words are to be taken in against the heirs, to refer to the date their primary and simple signification of the will, not to the time of the tes- where that can be done. The intention tator's death. ( Quinn v. Hardenbrook, of the testator will prevail, however ; 54 N. Y. 83.) See Livingston v. and where, from the construction of Greene, 52 id. 118. the whole will, it can be made to ap- 30 Tucker v. Bishop, 16 N. Y. 402 ; pear that the testator meant by " chil- Campbell v. Rawdon, 18 id. 415. dren" to include children and the is- Persons who died before the testator sue of such children as were deceased, are not included. (Stires v. Van that construction will be adopted. Rensselaer, 2 Bradf. 172; Roosevelt Thus, grandchildren and great- V. Porter, 36 Misc. 441 ; 73 N. Y. grandchildren will take under a be- Supp. 800; Campbell v. Rawdon, quest to children, whenever that is 18 N. Y. 414, 415.) See Hopkins v. necessary, in order to give effect to the Hopkins, 1 Hun, 352; Morton v. Mor- words of the will, or that appears to ton, 8 Barb. 18; Jenkins v. Freyer, 4 have been the evident intention of the Paige, 47; Lawrence v. Hebbard, 1 testator. (Marsh v. Hague, 1 Edw. Bradf. 252 ; Lyons v. Mahan, 1 Dem. Ch. 174 ; Home v. Van Schaick, 3 N. Y. 180. See § 766, post. 538.) Compare Mowatt v. Carow, 7 A testator after making provision Pa^ge, 328; Cromer v. Pinckney, 3 for liis wife devised and bequeathed the Barb. Ch. 466. remainder of his estate to his " legal Illegitimate children, unless there heirs." None of the relatives were are no legitimate children, will not be named in the will. Held, the testator included in the term " children," un- leaving no descendants qr parents, that less a diflferent intention is apparent, his collateral relatives took under the (Gardner v. Heyer, 2 Paige, 11; Col- residuary clause per stirpes and not lins v. Hoxie, 9 id. 81 ; Miller v. Mil- 233 Validity, Consteuction, Etc., of Wills. § 270. a will directs^^ the conversion of real property into money, such property and all its proceeds must be deemed per- sonal property/^ from the time of the testator's death.'" 15. A child conceived before, but not bom until after a testator's death, or any other period when a disposition to a class vests in right or in possession, takes, if answering to the description of the class. *^ 16. When, applying a will, it is found that there is an imperfect description, or that no peraon or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from competent extrinsic evidence.^*' § 270. Extrinsic evidence in aid of interpretation. — Cases must occur where the intention cannot be discovered or explained by the Avords of the will itself, and resort must be had to extrinsic evidence. The testator's intention, as an independent fact, cannot be proved by such evidence ; but evidence of the meaning of the words used by the testator, being ancillary to the right understand- ing of them, is allowable. ^^ The essence of the rule excluding ex- trinsic oral proof, in fixing the true force and meaning of a will, is simply this, " that the language used must define the import of the instrument, without the admission of any extrinsic evidence ler, 79 Hun, 197.) The word " chil- 34 Kane v. Gott, 24 Wend. 641; Gra- dren " must be taken in its accustomed ham v. Livingston, 7 Hun, 11. But sense, and limited to offspring in the compare Shumway v. Harmon, 6 Sup. first degree, in the absence of indica- Ct. (T. & C. ) 626; Trask v. Sturges, tions that the testator intended to give 31 Misc. 195. For the distinction be- lt some other meaning. (Kirk v. tween the effect of a sale under the Gashman, 3 Dem. 242; Matter of provisions of a will and a sale had Sparks, 27 Misc. 350; 58 N. Y. Supp. under a decree in partition, see Mat- 766.) A gift to brothers and sisters, ter of Thomas, 1 Hun, 473. or to the children of brothers and sis- 35 Jenkins v. Freyer, 4 Paige, 53 ; ters, includes brothers and sisters of Morton v. Morton, 8 Barb. 18. Com- the half blood, as well as those of the pare Lawrence v. Hebbard, 1 Bradf. whole blood. But "children" of 252; Phelps v. Phelps, 28 Barb. 121; brothers and sisters does not include Stires v. Van Rensselaer, 2 Bradf. 172. descendants below that degree. (San- 39 Roman Catholic Asylum v. Em- son V. Bushnell, 25 Misc. 268: 55 N. mons, 3 Bradf. 144; Smith v. Wyckoff, Y. Supp. 272.) 3 Sandf. Ch. 82, 88; ConoUy v. Pardon, 32 Forsyth v. Rathbone, 34 Barb, l Paige, 291; Smith v. Smith, 4 id. 405; Fowler v. Depau, 26 id. 239; 271; Wightman v. Stoddard, 3 Bradf. Harris v. Clark, 7 N. Y. 260; Phelps 4og; Harl v. Marks, 4 id. 161; Kalb- V. Pond, 23 id. 76; Salisbury v. Slade, fleisch v. Kalbfleisch, 67 N. Y. 354; 160 id. 278; 54 N. E. 741; Car- Matter of Wehrhane, 40 Hun, 542; penter v. Bonner, 26 App. Div. 462; Betts v. Betts, 4 Abb. K C. 317; 50 N. Y. Supp. 298. Otherwise as to a First Presbyterian See. v. Bowen, 21 discretionary power. (Koezly v. Koezly, Hun, 389; Matter of Schweigert, 17 31 Misc. 397; 65 N. Y. Supp. 613.) Misc. 186; 40 N. Y. Supp. 976; and 33 Meakings v. Cromwell, 5 N. Y. cases in notes under § 274, -post. 136; King v. Woodhull, 3 Edw. 79; 37Magee v. Magee, 67 Barb. 487; Bramhall v. Ferris, 14 N. Y. 46; Phillips v. McCombs, 53 N. Y. 494; Johnson v. Bennet, 39 Barb. 252 ; Stevens v. Stevens, 2 Redf. 265. Byrnes v. Baer, 86 N. Y. 210. § 270. Validity, Consteuction, Etc., of Wills. 234 of the intention of the testator in the use of such terms as his will is expressed in, except in the single case of there being two objects or persons to whom the language of the will applies with legal certainty, so that either might be justly regarded as coming within the terms of the instrument, if it were not for the other. This is what is more commonly called a latent ambiguity, but which Lord Bacon called an equivocation; i. e., where the terms of the will applied with equal strictness to more than one subject or object. And in every case of patent ambiguity, as well as those of latent ambiguity, with the exception of cases of equivocation before stated, direct evidence of intention must be rejected; but all other evidence, outside of the instrument, which will enable the court to understand in what sense the testator used the lan- guage found in his will, must be received and acted upon, when- ever the court can thereby see what was the testator's intention in the use of the language found in his will ; and, in this respect, there is no difference between patent and latent ambiguity, as to their being removable by extrinsic evidence, with the single ex- ception of equivocation before stated. Whether, therefore, the will appears ambiguous or uncertain in regard to its import, upon its face, or such ambiguity or uncertainty arises out of the extrin- sic evidence, there is no obstacle to receiving any kind of extrinsic evidence to remove it, with the single exception that the court can- not receive direct or even circumstantial evidence of the sense in which the testator understood the language of his will. But in either case of ambiguities, patent and latent, or more properly, uncertainties in regard to the application of the language to ex- ternal facts, it is competent to receive evidence of all the surround- ing circumstances, so as to place the court, as far as possible, in the position of the testator at the time he used such language." ^* The purposes for which extrinsic evidence may be received have been stated to be, to aid in reading, testing, applying and executing the testamentary declaration of intention.^* 38 Redf . Am. Cas. On Wills, p. 600 ; is admissible as a part of the rea Doe V. Provoost, 4 Johns. 61 ; Shulters gestm, though not to contradict the V. Johnson, 38 Barb. 80; Stimson v. will. (2) When it is doubtful as to Vroman, 99 N. Y. 74, 79. which of two or more extrinsic objects 39 Abb. Trial Ev. 129. The general a provision, in itself unambiguous, is rule is stated by Wharton (2 Whart. applicable, then evidence of the testa- Ev.. § 992) to be this: "With two tor's declarations of intention is ad- pxeeptions, evidence of the testator's missible; i^ot indeed to interpret the intentions is inadmissible in explana- will, for thjs is on its face unambigu- tion of a will. These exceptions are ous, but to jlAierpret the extrinsic ob- as follows: (1) What is said at the jects." , time of the execution and attestation The following are the seven proposi- 235 Validity, CoNSTEUCTio]sr, Etc., of Wills. § 271. §271. Beading the will As an aid to the correct reading of the will, the instrument, if written in a foreign language, or in shorthand or cipher, may be translated by a competent witness. Where the testator uses terms peculiar to his trade or calling, or which he habitually used in a peculiar sense, or according to local tions applicable to the exposition of wills, as laid down in Wigram on Ex- trinsic Evidence, etc.: " Proposition I. A testator is al- ways presumed to use the words in which he expresses himself, according to their strict and primary accepta- tion, unless from the context of the will it appears that he used them in a different sense, in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed. " II. W here there is nothing in the context of a will from which it is ap- parent that a testator has used the words in which he has expressed him- self in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is an in- flexible rule of construction that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular and secondary sense be tendered. " III. Where there is nothing in the context of a will from which it is ap- parent that a testator has used the words in which he has expressed him- self in any other than their strict and primary sense, but his words so inter- preted are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circum- stances of the case to see whether the meaning of the words be sensible in any popular or secondary sense, of which, with reference to these circum- stances, they are capable. " IV. Where the characters in which a will is written are difficult to be de- ciphered, or the language of the will is not understood by the court, the evi- dence of persons skilled in deciphering writing or who understood the lan- guage in which the will 'is written is admissible to declare wliat the char- acters are, or to inform the court of the proper meaning of the words. " V. For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, ^nd to the circumstances of the testa- tor, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. The same (it is conceived) is true of every other disputed point respecting which it can be shown that a knowledge of extrinsic facts can, in any way, be made auxiliary to the right interpretation of a testator's words. " VI. Where the words of a will, aided by evidence of the material facts of the case, are insufficient to deter- mine the testator's meaning, no evi- dence will be admissible to prove what the testator intended, and the will (ex- cept in certain special cases, — see Proposition VII) will be void for un- certainty. " VII. Notwithstanding the rule of law which makes a will void for un- certainty, where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, courts of law, in certain special cases, admit extrinsic evidence of intention to make certain the person or things intended, where the description in the will is insuffi- cient for that purpose. These cases may be thus defined: when the object of the testator's bounty, or the sub- ject of disposition (i. e., the person or thing intended) is described in terms which are applicable indifferently to more than one person or thing, evi- dence is admissible to prove which of the persons or things so described was intended by the testator." §§ 272-274. Validity, Constkuction, Etc., of Wills. 236 usage, they may be defined by competent evidence.*" The testa- tor's habitual use of nicknames, sobriquets, or any designation to distinguish persons or things may be shown. But the meaning o? technical legal terms cannot be varied by parol,*^ and it cannot be shovirn by such evidence, vsrhat the testator intended to express by initials or ciphers in a bequest, as distinguished from vt^hat was his common habit in their use in speaking and writing.^ § 272. Testing the will. — In testing the validity or legality of a will, or any clause of it, parol evidence is always admissible; such evidence is not received to influence the construction of the will, but to impeach it as a valid testamentary disposition, as being by its terms in contravention of a statutory limitation, or as having been made by mistake or induced by fraud or undue influence. § 273. Applying the will. — As an aid in applying the will, the court may inquire into the testator's circumstances and situation, the nature of his property,** the number of his family,** the claims upon him of a legatee whose legacy is ambiguous,*^ the state of former wills and other circumstances, the object being to place the court, as nearly as possible, in the position of the testator, so as to enable it to see how the uncertainty arose. § 274. Designation of beneficiary. — It is essential to the validity of a bequest, that the beneficiary should be designated with rea- sonable certainty, or that it should be possible to identify him with certainty.*® If there is no person in existence who exactly 40 Eyerss v. Wheeler, 22 Wend. 152. of a mistake ; and all the children so See 1 Jarman on Wills, 421. in existence be held entitled, unless it 41 See cmte, § 269. can be inferred who were the particu- 42 Clayton v. Lord Nugent, 13 Mees. lar children intended; and a like prin- & Wels. 200. ciple will be applied where the number 43 Doe V. Provoost, 4 Johns. 61 ; spoken of is greater than all the chil- Shultera v. Johnson, 38 Barb. 80; dren in existence. (Kalbfleisch v. Roman Catholic Orphan Asylum v. Kalbfleisch, 67 N. Y. 354.) See Naylor Emmons, 3 Bradf. 144; White v. v. Brown, 32 Misc. 298. Hicks, 43 Barb. 65; affd., 33 N. Y. 45 Terpening v. Skinner, 30 Barb. 383. 373; 29 N. Y. 505; Brower v. Bowers, The date of a will may be established 1 Abb. Ct. App. Dec. 214. The motive or corrected by parol evidence showing of the testator is not to be regarded in the real date of its execution. (Mat- giving effect to his intention. (How- ter of Haviland, 17 Misc. 193; 40 N. land v. Union Theo. Sem., 5 N. Y. Y. Supp. 973.) 193.) 44 Cromer v. Pinckney, 3 Barb. Ch. 46 Holmes v. Mead,, 52 N. Y. 332; 466; Pierrepont v. Edwards, 25 N. Y. Prichard v. Thompson. 95 id. 76; 128. Where a gift to children speaks O'Hara v. Dudley, 14 Abb. N. C. 71; of them as a specified number, which Preston v. Howk, 3 App. Div. 43; 37 is less than the number in existence at N. Y. Supp. 1079 ; affd., 154 N. Y. the date of the will, the specified num- 734. See Beekman v. Bonsor, 23 id. ber will be rejected on the assumption 298. A bequest to a person, when he 237 Validity, Consteuctioit, Etc., of Wills. § 274. answers the description, extrinsic evidence is admissible to ascer- tain to "whom the designation points. A mere misdescription of the legatee or of the subject of the gift, does not avoid the legacy, unless the ambiguity is such as to render it impossible to ascer- tain, either from the will or by extrinsic evidence, who, or what, was intended. The maxim falsa demonstratio non nocet is well established, and means, practically, that however erroneous the description, either of the object or the subject of the gift, it will not avoid the bequest, provided enough remains to show, with rea- sonable certainty, what was intended.*'^ Thus, a legacy to Mary, " wife of Nathaniel S.," when Mary's husband was Abraham S., and Nathaniel's wife was Sarah, was upheld as a legacy to Mary.*^ So a bequest to Cornelia Thompson was held a good bequest to Caroline Thomas.*® A legacy to the testator's cousin Paris, he having no cousin of that name, was sustained, on parol proof, as a legacy to his cousin Priscilla.^" And a legacy to " James, son of my brother Frederick," was sustained as a legacy to Frederick, son of , the testator's brother James, on proof that the brother James had no son Frederick, and that the names were transposed by a mistake of the draughtsman.^^ It is not essential that a cor- poration to whom a legacy is given should be designated by its legal corporate name. If not designated by its corporate title, a corporation claiming the legacy may show, by extrinsic evidence, that it is the body intended by the testator, as distinguished from shall die, is not void for incongruity, « Smith v. Smith, 4 Paige, 271. but is ascertained on his decease, and *9 Thomas v. Stevens, 4 Johns. Ch. is transmissible to his legal repre- 607. sentative. (Terrill v. Public Adm'r, so Hart v. Marks, 4 Bradf . 161. 4 Bradf . 245. ) Compare Riley v. Bi Esb p. Hornby, 2 Bradf. 420. For Diggs, 2 Dem. 184; Shipman v. Eol- other illustrations, see Wright v. lins, 98 N. Y. 311. Methodist Episcopal Church, Hoffman, The use of the words " the widow of 202 ; N. Y. Inst, for the Blind v. How, my said son," held, not to refer to the 10 N. Y. 84; Hornbeck v. Am. Bible widow of a second marriage of the son. Society, 2 Sandf. Ch. 133; De Witt (Davis V. Kerr, 3 App. Div. 322; 38 v. Chandler, 11 Abb. Pr. 459; Attor- N". Y. Supp. 387.) ney-General v. Reformed D. Church, 33 *T Jackson V. Sill, 11 Johns. 201, Barb. 303; Attorney-General v. The 218; Mannv. Mann, 1 Johns. Ch. 231; Minister, etc., 36 N. Y. 452; Matter ConoUy v. Pardon, 1 Paige, 291; of Cahan, 3 Redf. 31. In the last case. Smith V. Smith, 4 id. 271; Wightman extrinsic evidence was admitted to V. Stoddard, 3 Bradf. 393 ; Hart v. show that by the term " my daughter Marks, 4 id. 161; Roman Catholic Or- Elizabeth," used in a will, where the phan Asylum v. Emmons, 3 id. 144; testator had no such daughter, the tes- Smith V. WyckoflF, 3 Sandf. Ch. 82; tator intended to describe one whom Matter of Woods, 33 Misc. 12; 67 N. he had adopted as his daughter, al- Y. Supp. 1123; Dodin v. Dodin, 16 though he had not formally adopted App. i)iv. 42; 44 N. Y. Supp. 800; her in accordance with the provisions affd., 162 N. Y. 635; Matter of Lang, of the statute. 9 Misc. 521; 30 N. Y. Supp. 388. § 275. Validity, Construction, Etc., of Wills. 238 all other corporations.®^ The amount of evidence requisite to prove identity in the case of a description of the legatee, depends much upon whether there are two or more claimants to the legacy, or only one.*^ § 275. Description of subject-matter of legacy. — There are many cases of misdescription of the property sought to be devised or be- queathed, giving rise to uncertainty as to the identity of the prop- erty, the nature of the estate given, etc. Such questions are de- termined upon the same principles as are ambiguities in the desig- nation of persons, and extrinsic evidence may be resorted to as au aid in applying the language of the will to the property, as it is in applying the language to the person.®* It also frequently be- comes necessary to resort to extrinsic evidence as an aid in execut- ing the will, that is, in carrying its provisions into effect. This subject is so fully treated in standard treatises that an enumera- tion of the cases need not be attempted here. 52Lefevre v. Lefevre, 59 N. Y. 434; Div. 183; 52 N. Y. Supp. 943; affd., 2 Sup. Ct. (T. & C.) 330; Riker v. 161 N. Y. 652.) 3. If neither pre- N. Y. Hospital, 66 How. Pr. 246. See ciaely answers the description and in- Abb. Trial Ev. 142, and cases cited. A dications of the will, but both do so legacy to " the ladies of the Ursuline approximately, this is also a case of Order, residing in Charleston," was latent ambiguity, admitting extrinsic sustained as a legacy to " The Ladies' evidence ; and in this class of cases, Ursuline Community of the city of too, according to the better opinion, Charleston." (Banks v. Phelan, 4 the testator's declaration of intent Barb. 80. ) See Kearney v. Missionary may be proved." Society, 10 Abb. N. C. 274. The will But as to this, see St. Luke's Home directed two-fourths of the residue v. Assoc, of Indig. Females, 52 N. Y. ■' to be divided equally between the 191, in which case it was hel'd, that home and foreign missions." Held, where a devise or bequest is made to a that, upon the evidence, the legacies corporation, and there are two cor- belonged to the Boards of Home and porations, neither of which can claim Foreign Missions, respectively, of the under the precise name used by the Presbyterian church in the United testator, it is for the court to deter- States of America. (Board of Mis- mine which of the two is best or most sions v. Scovell, 3 Dem. 516.) See nearly described by the name, or which Matter of Tobey, N. Y. Law J., Feb. will best and most closely answer the 9, 1892 (N. Y. Surr. Ct.). delineation used by the testator; and 53 In the ease of adverse claimants if with n, knowledge of the names and of the same gift, Mr. Abbott (Trial general character and purposes of the Ev. 140) gives the follovring rules two corporations, as disclosed by their as applying: "1. If one (being com- charters, there- is no latent ambiguity, petent to take ) alone precisely answers and the court can thus determine the whole description of the will, or is which of the two was intended, other identified by the context, extrinsic evi- evidence to aid the interpretation can- dence that the other was intended is not be resorted to. incompetent. 2. If both precisely an- 54 See Jackson v. Sill, 11 Johns. 201; swer the whole designation and Indi- Mann v. Mann, 14 id. 1 ; Pyerss v. catiops of the will, a latent ambiguity Wheeler, 22 Wend. 148; Roman Gath- er ' equivocation ' is presented, and ex- olic Orphan Asylum v. Emmons, 3 trinsic evidence is competent ; and in Bradf. 144 ; Doe v. Roe, 1 Wend. 541 ; this class of cases, direct evidence of Waugh v. Waugh, 28 N. Y. 94 ; Hunter the testator's intention, even by prov- v. Hunter, 17 Barb. 25; Woods v. ing his declarations of pvirpose. is ad- Moore, 4 Sandf. 579; Jones v. Jones, missible. (Matter of Wheeler, 32 App. 1 How. Pr. (N. S.) 510. CHAPTER VIII. CONTESTING WILL ON ALLEGATIONS AFTER PROBATE. § 276. Revoking probate on motion. — As we have seen/ the Surrogate's Court has power to relieve a party from the conclusive effect of a probate, on motion in a proper case, — as where the de- cree was taken by default, or in consequence of a mistake,^ or where it was improperly obtained upon a false suggestion of fact, without notice to the party entitled to administration,^ or upon a fraudulent concealment of the truth with respect to any material fact.* A motion for a citation to vacate the decree, rather than a direct proceeding by petition to revoke the probate, is the proper practice, where a later will than the one probated has been discov- ered, the citation being directed not only to the heirs and next of kin, but also to the legatees under the first will.® Indeed, when- ever the decree is void for want of jurisdiction to grant it, as where the proper parties were not before the court, it will be opened on motion, leaving the parties to initiate a new proceeding for probate, instead of continuing a proceeding to revoke probate on allegations.® So a decree admitting a will to probate may be opened, at the instance of a former contestant, to enable him to apply for a judicial construction of a codicil.'' A party, who was not cited upon the application for probate, may come in and ask to be heard; and the court has the power to open the decree, on motion, and hear the matter anew, on the merits.® In that case, the executor must re-prove the requisite formalities of execution. 1 See ante, § 54, and e. XIV, post, domiciled at the time of his death on 2 Pew V. Hastings, 1 Barb. Ch. 452 ; the ground that it had been revoked Skidmore v. Davies, 10 Paige, 316. ' according to the law of that State, the 3 Proctor V. Wanmaker, 1 Barb. Ch. will must be regarded here as void, as 302. a will of personalty; but not neces- • 4Dobke V. McClaran, 41 Barb. 491; sarily so as to the real estate. Bailey v. Hilton, 14 Hun, 3. As to (Bloomer v. Bloomer, 2 Bradf. 339.) the power of the Supreme Court to re- 5 Matter of Hamilton, 2 Connoly, lieve against the effect of a surrogate's 268. See Matter of Daily, 25 St. Rep. decree granting probate, see De Bus- 1020; 7 N. Y. Supp. 259. sierre v. Holladay, 4 Abb. N. C. 111. 8 Matter of Hughes, N. Y.. Law J., Where, after probate of a foreign will, Jan. 17, 1891. ■ • it is declared void by a competent 7 Matter of Keeler, 5 Dem. 218. court of the State where testator was 8 Booth v. Kitchen, 7 Hun, 255. [239] § 277. Contesting Will Aftee Probate. 240 publication, etc.® But, on an application of this kind, the court has a discretion, to be exercised according to the circumstances of the case and with a just regard for the interest of all the par- ties. He may, therefore, refuse the application to open the decree, where doing so would seriously embarrass many and important in- terests, and where the remedy of the party, by action, is ample. ^^ As a rule, probate on default will not be set aside in the absence of any claim of fraud, incapacity, or undue influence.^^ § 277. Revoking probate by direct pr&oeeding. — But besides this remedy by motion, provision is made for a direct proceeding, after probate, to contest a will of personalty, and thus necessarily anmil the probate. This proceeding is a matter of right, and the court is bound to entertain it in a proper case. Previous to the adoption of the Bevised Statutes, in 1830, this practice and pro- cedure of the English prerogative courts prevailed, by which wills were allowed to be probated ex -parte, or in the common form, ex- cept where a caveai was filed, or objection was made by a party in interest; and revocation of a probate could be effected only by a suit brought directly for that purpose.^^ This is still the prac- tice in some of the States. By the Eevised Statutes, the Legisla- ture, in effect, abolished probate in the common form, and sub- stituted the proceeding known as solemn form. In other words, the statute required that in every proceeding for the proof of a will, the heirs and next of kin of the decedent should be cited in the first instance, so that they might then and there present their objections, if any. One feature of the old probate practice was, however, retained, to wit, the permitting of an interested party to come in, after probate, to contest the validity of the will. The revisers had reported a provision which limited this right to those who had not been cited to appear upon the probate, but the Legis- lature went a step further, and provided that any of the next of kin might come in, at any time, within one year after the probate, and file allegations against the validity of the will, notwithstand- 8 Matter of Odell, 1 Misc. 390; 23 ing the motion. See Matter of Tilden, N. Y. Supp. 143. 56 App. Div. 277 ; 67 N. Y. Supp. 879, 30 Bailey v. Hilton, supra. In that where it was intimated that the power ease the applicant was interested in to open the decree should be exercised the real property alone, and as the only on behalf of one who was a party decree granting probate was not con- to the proceeding, as the decree was elusive as to such property, and the not binding on those not brought in. remedy by action was open to the mov- n Matter of Gillies, 28 St. Rep. 630 ; ing party, the surrogate was upheld in 7 N. Y. Supp. 909. ^ the exercise of his discretion in deny- 12 See 1 Rev. Laws, p. 446, § 9. 241 CoNTESTiiTG Will Aftee Probate. §§ 278, 279. ing the probate and its otherwise conclusive effect.^* It is not difficult to perceive that such a remedy is greatly in furtherance of justice, for it may well happen that a party, though duly cited in the original probate proceeding, was unable, by reason of sick- ness, or absence, or oversight, or by reason of ignorance of any grounds of opposition, to assert his claim at the time. The rem- edy given by the Revised Statutes is substantially the same now existing under the Code.^* § 278. Remedy as to wills of personalty only. — The remedy i;^ only applicable to the probate of wills of personal property; and where the probate is of a will of both real and personal property, the probate can be revoked only so far as the will affects the per- sonal property, leaving the probate unimpaired so far as it relates to real property. ■'" § 279. Remedy, when to be availed of. — The petition miTst be presented " within one year after the recording of the decree ad- mitting the will to probate," ^® except that, when the person enti- tled to present it is then a minor, or insane, or is imprisoned on a criminal charge, or in execution upon a conviction of a criminal offense for a term less than for life, the time of such disability is not part of the year limited for taking the proceeding, unless such person shall have appeared by general or special guardian or otherwise, on the probate.-'^ It is enough to file the petition within 13 In Collier V. Idley (1 Bradf. 94), of Donlon, 66 Hun, 199; 21 N. Y. Surrogate Bradford has given a full Supp. 114. account of the English practice, and lo The limitation of one year, where the history of our own legislation on the issues on probate were tried by the subject. jury, begins to run from the entry of l*Co. Civ. Proc, § 2647; 2 R. S. 61, the decree on the findings, and not § 30. The article of the Code, provid- from its filing in Surrogate's Court, ing for, and regulating, this proceed- (Matter of Kuppaner, 9 App. Div. ing is entitled "Revocation of Pro- 422; 41 N. Y. Supp. 212.) bate," but we prefer to retain the ap- 17 Co. Civ. Proc, § 2648, as amended pellation of " Contesting Will on Al- 1881. The pendency of an appeal from legations, etc.," by which the proceed- so much of a decree of the surrogate as ing has been known, as it distinguishes construes a will in reference to the it from the proceeding by motion to destination of lapsed legacies, does not revoke probate. bar an application for the revocation 15 Matter of Kellum, 50 N. Y. 301. of the probate of the will upon the In that case it was held that this stat- grounds that the testator had not tes- utory remedy was not taken away by tamentary capacity, and was unduly the statute (L. 1837, o. 460, §§ 18, 19), influenced. (Matter of Bonnett, 1 which required the same proof for the Connoly, 294; 9 N. Y. Supp. 459.) probate of wills of personal property But in Matter of De Haas (24 Misc. as of real property, and which dis- 420 ) , after the validity of the will had pensed with the separate recording of been passed on by Supreme Court, the the instrument as a will of personal contestant subsequently filed a peti- property after it had been recorded as tion for a revocation of the probate in a will of real property. See Matter the Surrogate's Court, the object be- 16 §280. Contesting Will After Peobate. 242 the year, though the citation was issued after that time.^* This limitation of one year does not affect the remedy hy motion to re- voke the decree, above mentioned, as to which the court has a dis- cretion whether or not it will hear it after that time; though laches may defeat it.^* § 280. Who may maintain the proceeding. — Before the present Code, only the next of kin of the decedent could avail of this rem- edy, but it is now extended to any " person interested in the es- tate," ^° — that is, any person entitled, either absolutely or con- tingently, to share in the personal estate, except a creditor. If a particular clause of the instrument is sought to be declared in- valid, then such issue can be raised only by a party having an in- terest under the will in the event that clause should be so de- clared.^^ It was held, under the former statute, that one who, being a party to the original probate proceeding, filed his objec- ine; to procure a construction of the will which she believed would result in its being declared invalid, — Held, that such petition could not be entertained. 18 Matter of Gouraud, 95 N. Y. 256; Matter of Bradley, 70 Hun, 104; 23 S. Y. Supp. 1127; Matter of Laytin, 15 Misc. 660; 37 N. Y. Supp. 1125. 19 It was the obvious intent of the final sentence of Co. Civ. Proc, § 2648 — excluding from the one year's lim- itation of proceedings to revoke pro- bate of it will, an application to vacate, etc., a decree pursuant to sec- tion 2481, subd. 6 — to soften the rigor of the remainder of the first-named section by extending the surrogate's general power of setting aside, etc., to decrees of probate after a year from their rendition. After the year, the application is in the surrogate's discre- tion. Accordingly, where a petition for the revocation of a probate decree rendered in 1873 was presented after the lapse of more than seven years, by a daughter of testator, who, though then an infant, was not represented by guardian on the probate, she claiming that, by reason of the provisions of the Code mentioned, her time to apply was unlimited — it appearing that she be- came of age in 1874 — it was held, that her absolute right to contest the pro- bate ceased at the end of a year after the decree was rendered; that she had been guilty of laches by delay; and that the application should be denied. (Becker v. Bochus, 5 Redf. 488; affd., 28 Hun, 207.) 20 Hence, formerly, a legatee, as such, could not institute the proceed- ing. (Booth V. Kitchen, 7 Hun, 260.) But a legatee who has accepted a legacy under a decree admitting a will to probate, is thereby estopped from contesting the validity of the will; and a tender of the amount of such legacy with interest, but without costs, into court, after the filing of a petition to set aside the probate does not re- move the estoppel of the legatee. (Matter of Soule, 1 Connoly, 18; 22 Abb. N. C. 236 ; Matter of Peaslee, 73 Hun, 113; 25 N. Y. Supp. 940; Mat- ter of Richardson, 81 Hun, 425; 30 N. Y. Supp. 1008.) See ante, § 257. Where the petitioner is estopped or disqualified from maintaining the pro- ceeding, it cannot be continued by a respondent who could not have insti- tuted it. (Matter of Euppaner, 15 Misc. 654; 37 N. Y. Supp. 429; affd., 9 App. Div. 422.) One who was a party and appeared in an action to determine the validity of a will is estopped by the judgment in favor of its validity from maintaining an ac- tion to revoke probate. (lb.) A residuary legatee has a sufficient interest to maintain a proceeding to revoke probate of provisions of the will in favor of another, alleged to have been procured by fraud. (Matter of Janes, 87 Hun, 57; 33 N. Y. Supp. 968.) 21 Jones V. Hamersley, 4 Dem. 427 ; Matter' of Havemeyer, N. Y. Law J., April 15, 1890. 243 Contesting Will After Peobate. §§ 281-283' tions, and actually contested the probate, could, in the event of an adverse decision, renew the same objections by a petition in this proceeding;*^ and this is undoubtedly the rule in a proceeding under the Code.** § 281. The petition — The petition, besides showing " the inter- est " of the petitioner, should allege the grounds on which tho validity of the will, or its proof, is sought to be contested. It should state the names of the executor or the administrator with the will annexed, as the case may be ; also the names of the devi- sees and legatees named in the will, and " of all other persons who were parties " to the original probate proceeding.** The facts ■upon which the allegations are founded should be stated with suffi- cient certainty to enable the court to determine whether they con- stitute, if true, good grounds for • entertaining the proceeding.*^ The relief prayed for is, that the probate may be revoked and that a citation may issue to the persons named. § 282. Persons to be cited. — Under the former statute, only the executor, or the administrator with the will annexed, as the case might be, and the legatees residing within the State, were entitled to notice, but now, not only they, but " all other persons who were parties " to the original proceeding, without limitation as to resi- dence, are required to be cited. If a legatee is dead, his executor or administrator must be cited, if one has been appointed ; if not, such persons must be cited as representing him, as the surrogate designates for the purpose.*® § 283. Service and return of citation The surrogate is re- quired to issue a citation, upon the presentation of the petition. 22 Matter of Gouraud, 95 N. Y. 256. to a petition for probate. Averments 23 See Matter of Bonnett, 1 Connoly, of matters of evidence are generally 294; 9 N. y. Supp. 459. In Matter of out of place in a petition for such Bradley (70 Hun, 104; 23 N. Y. Supp. revocation, and may be stricken out, 1127), the petitioner, who had filed ob- on motion. (Henrv v. Henry, 3 Dem. jeetions in the original proceeding, but 322.) See Matter'of Hopkins, 19 St. had failed to appear and substantiate Rep. 528. them, was held entitled to maintain 25 Where it nowhere appears by the the proceeding, as if no adjudication petition, or allegation, that the alleged had been had. So, too, though the will proceeded against has been ad- petitioner had waived the issue of a, mitted to probate, the surrogate is citation upon the original proceeding without jurisdiction. (Neergaard's and consented that the will be ad- Estate, 20 Daily Reg. No. 151.) mitted to probate. (Matter of Albert, 26 Co. Civ. Proc, § 2649. The sur- 38 Misc. 61.) rogate may order supplementary cita- 24 A petition for the revocation of tions on revocation proceedings where probate of a will should not differ es- the same were actually begun within sentially, in its statement of the one year. (Matter of Phalen, 51 Hun, grounds of objection, from an answer 208.) §§ 284-286. Contesting Will Afteb Peobate. 244 It seems that it is the duty of the surrogate to issue the citation at once upon the presentation of the petition, and it must be served within sixty days after its issue. ^^ If all the parties are not served in time, the surrogate may issue a supplemental citation.^* § 284. Suspension of executor's proceedings A citation having been served upon the executor, or the administrator vt^ith the will annexed, as the case may be, he " must suspend, until a decree is made upon the petition, all proceedings relating to the estate ; ex- cept for the reeoyery or preservation of property, the collection and payment of debts, and such other acts as he is expressly al- lowed to perform, by an order of the surrogate, made upon notice to the petitioner." ^® This was intended to restrict the powers of the executor, and not to enlarge those of the surrogate. Hence the latter cannot order a portion of the estate paid over to, and distributed among, the legatees, even though they wovild, as next of kin, be entitled to distributive shares of the estate, in case the probate was revoked. " Such a power would be extremely danger- ous, and might be the subject of great abuses." ^^ § 285. Proceedings on return of citation. — In this proceeding, the probate of the will already made is regarded as a mere nullity, and not even prima facie evidence of its due execution. The bur- den of proof is on the proponents of the will, in the same manner as it was on the former application, and they must prove the will de novo in the same way.^-"- The evidence to sustain the probate must be taken anew. The testimony which was taken on the orig- inal probate cannot be given in evidence, except that of witnesses who may be dead, or out of the State, or who, since their testimony was taken, have become lunatic or otherwise incompetent ; the testimony of such witnesses is expressly allowed to be received."'^ § 286. Issues triable — It has been loosely remarked that any question, which might have been raised by objection to the pro- bate originally, may be raised in this proceeding. This is only 2T Matter of Bradley, 70 Hun, 104; 28 Matter of Bradley, supra. 23 N. Y. Supp. 1127, citing Matter of 29 Co. Civ. Proo., § 2650. Phalen, 51 Hun, 208; Matter of Lid- 30 Matter of MeGowan, 28 Hun, 246; dington, 20 St. Rep. 610; and over- La Bau v. Vanderbilt, 3 Redf. 386, ruling Fountain v. Carter, 2 Dem. 414. Compare Hoyt v. Jackson, 1 313; Pryer v. Clapp, 1 id. 387; Mat- Dem. 553. ter of Bonnett, 1 Connoly, 294. Where 31 Collier v. Idley, 1 Bradf. 94 ; the petitioner wilfully refrains from Matter of Soule, 1 Connoly, 18; 22 serving the citation on some of the Abb. N. C. 236; Hoyt v. Hoyt, St. parties, the proceeding may be dis- Rep. 731; affd., 112 N. Y. 493. missed. (Matter of Friedell. 20 App. 32 Co. Civ. Proc, § 2651. Div. 382; 46 N. Y. Supp. 787.) 245 Contesting Will Aftee Peobate. § 287. true to the extent that any question involving the factum of the will, including, besides the facts of due execution, publication, and attestation, the testator's mental capacity,^^ his freedom from undue influence,^* the existence of a later "will,^^ and similar facts ; as to which, the whole case is opened for retrial and determination, upon the same, or upon additional, evidence, as that produced on the original proceeding. But the right of a contestant, to put in issue the " validity, construction and effect " of the provisions of the will, does not extend to this proceeding, which is provided for under a different title of the Code from that which confers that special jurisdiction on Surrogates' Courts. In a proceeding to revoke probate, on allegations, the court will not, therefore, de- termine the legality of a direction to accumulate interest,^^ or other such questions. ^^ As the proceeding itself necessarily con- cedes the court's jurisdiction to render the original decree, the contestant cannot raise that question in this proceeding.^* In short, no question can properly be passed upon, either by the sur- rogate, or by the appellate court, except as to the legal execution of the will, and whether its probate should stand. The extent of the court's authority is to render a decree either revoking or con- firming the probate, especially, where no question of construction, if allowable at all, was involved.^^ § 287. Decision and decree. — If the surrogate decides that the will is not sufficiently proved to be the last will of the testator, he must make a decree revoking the probate thereof; otherwise, he must make a decree confirming the probate.*" The record of the will remains, however, and if the instrument has also been proved as a will of real estate, the effect of that probate is not impaired by the revocation of the probate as a will of personal property. The revocation simply divests the probate of its quality as that of a will of personalty;*^ although the proceeding is important and useful in facilitating any subsequent controversy over the will as a disposition of real property.*^ ss Matter of Liddington, 20 St. Rep. 36 Matter of Soule, 1 Connoly, 18 ; 610. 22 Abb. N. C. 236. 34 Matter of Lowman, 1 Misc. 43 ; 37 Matter of Ellis, 1 Connoly, 206. Matter of Blair, 16 Daly, 540; 16 N. ssHoyt v. Hoyt, 112 N. Y. 493; 9 Y. Supo. 874. St. Rep. 731. Relief against the de- 35 Where it was sought to revoke the cree, as being void for want of juris- probate on the ground of the existence diction, may be had by motion to set of a later will which was propounded it aside, under Co. Civ. Proc, § 2481. accordingly, it appearing that the lat- 39 Matter of Watson, 131 N. Y. 587. ter instrument was a codicil to the 40 Co. Civ. Proc, § 2652 ; Matter of former, the petition for revocation was Watson, 131 N. Y. 587. denied, and the codicil was admitted 41 Matter of Kellum, 50 N. Y. 300. as such. (Canfield v. Crandall, 4 Dem. 42 Hoyt v. Hoyt, 112 N. Y. 493. 111.) §§ 288, 289. Contesting Will Aftek Peobate. 246 § 288. Notice of decree of revocation. If the decree revokes the probate, the surrogate must cause notice of the revocation to he immediately published, for three successive weeks, in a news- paper published in his county.*^ The former statute also required that personal notice should be served upon the executor, or admin- istrator with the will annexed, and further provided that, upon such notice being served upon the executor or administrator, his powers and authority ceased, and he must account to the repre- sentatives of the deceased person, whose alleged will was contested, for all moneys and effects received ; but he was not liable for any act so done in the collection of moneys or the payment of debts, after the service of the citation, and previous to the service of the notice of revocation.** But under the Code,*® the cessation of the powers of the executor is made dependent upon the entry of the decree, instead of service of notice of the entry. § 289. Appeal from decree — From the surrogate's decision on such a contest, an appeal lies to the Supreme Court in the same manner as if the decision had been made on the original applica- tion for probate.*® But the appeal does not stay the execution of the decree.*''^ 43 Co. Civ. Proc, § 2653. 46 Co. Civ. Proc, § 2570. See Alston 44 2 R. S. 62, §§ 37, 38. v. Jones, 10 Paige, 98, as to appeal 45 §§ 2603, 2684. A removed or from such decree under the Revised superseded representative, as long as Statutes. he is liable for assets that have come 47 Co. Civ. Proc, § 2583. See Halsey into his hands, is amenable to process v. Halsey, 3 Dem. 196; Matter of from the surrogate, calling him to ac- Fembaeher, 5 id. 219; 8 Civ, Proc. count. (Gerould v. Wilson, 81 N. Y. Rep. 349. 573.) CHAPTER IX. LETTERS TESTAMENTARY. TITLE FIRST. WHEN AND TO WHOM LETTERS ISSUE. § 290. The probate and letters testamentary. — The terms " pro- bate " and " letters testamentary " are sometimes used as con- vertible, and pains have been taken to point out the differences between them.^ No doubt can exist that they are essentially dis- tinct under the Code of Civil Procedure, in which — to mention only a single provision — it is enacted that a decree granting or revoking probate of a will must also revoke the letters issued there- upon f and under which the prescribed and only effect of the latter revocation is the cessation of the executor's powers,^ the probate remaining unaffected. In attempting to exhibit the difference between these terms, under the Code, embarrassment is occasioned by the slender degree of resemblance. Letters testamentary are tangible' written authorization to the executors, duly tested, signed by an oiRcer, and sealed with the seal of the court.* Probate is uniformly employed in an abstract sense, more or less closely al- lied to its etymological equivalent " proof," ^ viewed either as a process or as a result, and cannot be identified with any paper, record, or adjudication.*' §291. Nomination of executor. — The executor'' is the person named by the testator in his will to whom he confides the power 1 See Wms. on Exra. 255 ; Kirt- 7 The word " exeeutor," as Used in a. land's Surrogate, 46 ; Dayton on Sur- will, is a word of description of all the rogates (3d ed.), 212. persons appointed by the will to the 2 Co. Civ. Proc, § 2684. duty of executing its provisions. It, 3 Co. Civ. Proc, § 260S. therefore, includes " executrix," unless 4 Co. Civ. Proc, § 2590. a contrary intention appears on the 5 See Co. Civ. Proc, § 2476. face of the will. The word "exeeu- 6 See " to admit to probate," Co. Civ. trix " does not appear in the Revised Proc, § 2472, subd. 1 ; " to attend the Statutes. In Moke v. Norrie (14 Hun, probate," § 2614; " presenting for pro- 138), the testator appointed his wife bate," § 2622; "contested probate," " executrix," and his father-in-law and § 2623. other males " executors of this my last [247] § 291. Letters Testamentaey. 248 and authority to execute the provisions of the will, and the ad- ministration of his estate, or of some portion of it. Such person, if competent, is entitled, upon qualifying, to receive letters testa- mentary, as evidence of such authority. He is so entitled (1) when he is expressly named as executor in the will ;* or (2) when, although not expressly named as executor, the will shows the tes- tator's intention that he should have the administration of the estate, or some portion of it; in which case he is called executor by the tenor f or (3) when he is named as executor by some per- son other than the testator under a power of appointment con- tained in the V7ill.^° Where a will has been admitted to probate, letters testamentary will not be withheld from the person named in such will as executor on the ground that a paper purporting to be a codicil to such will, the validity of which is contested, has been offered for probate, by the terms of which another person is nominated as executor, the nomination of the original will not being expressly revoked.^* will, etc., and trustees thereunder of French law, the testatrix constituted my estate." In another place, he con- her husband her " general and univer- ferred certain powers upon his " ex- sal legatee," and dispensed with his eeutors," and appointed his " execu- giving security — it appearing that by tors " guardians of his children, and the law of France all the rights and conveyed property to them in trust, duties of an executor devolve on such Held, that the testator, by the word a legatee — held, that the husband " executors," intended to include must be deemed executor of the will, therein the " executrix," who was, although not specifically named as therefore, entitled to act as trustee such, and was entitled to letters testa- and guardian. mentary. (Matter of Blanoan, 4 Redf. 8 " Unless testator has designated as 151.) executors of his will the persons ask- As to the effect of the appointment ing to be appointed such, they cannot of " the trustees for the time being " be appointed executors." (Matter of of a specified society, see Matter of Schuyler, N. Y. Law J., Apr. 14, 1890.) Hardv, 2 Dem. 91. In Matter of Cornell (17 Misc. 468, lOHartnett v. Wandell, 60 N. Y. 41 N. Y. Supp. 255), testator's will 346; affg. s. c, sub nom. Alexander's provided that in case of the death of Will, 16 Abb. Pr. (N. S. ) 9, and over- his executor, another person named ruling Bronson's Estate, 1 Tuck. 464. should be his successor. Upon that In Hartnett v. Wandell (supra), the event taking place the surrogate is- words of the will were : " I nominate sued letters testamentary to such ap- and appoint my wife executrix of this, pointee. my will, and request that such male 9 Bayeaux v. Bayeaux, 8 Paige, 333 ; friend as she may desire shall be ap- Ew p. McDonnell, 2 Brad. 32 ; Ex p. pointed with her as coexecutor." Held, McCormick, id. 169; Hubbard v. Hub- that letters should issue to the wife's bard, 8 N. Y. 203. It is not necessary appointee, though, it seems, the wife that the appointment of an executor could not designate the coexecutor un- should be made in so many words, til she had herself qualified as execu- Any provision in the will showing that trix. See Rogers v. Rogers, 4 Redf. the testator intended that the duties 521. of an executor should be discharged by 11 Stolzel v. Cruikshank, 4 Dem. 352. the person named is sufiieient to con- The pendenev of a proceeding for the stitute him an executor. Hence, revocation of probate of a will, vrill not where, by a will executed under the prevent the issue of letters testament- 249 Letters Testamesttaey. §§ 292, 293. § 292. Number of executors — There is no limitation of the number of persons who may be nominated executors, but, what- ever the number, those who qualify and enter upon the discharge of their trust are regarded in law as one individual, except where each is appointed to take charge of particular property, or prop- erty situated in different States.^^ Different executors may be appointed for different States or countries.^^ Executors may be appointed with separate functions, or to succeed each other in the event that the one first named shall die, become incapacitated, or unwilling longer to serve ; or two persons may be appointed to act for a definite period, or during the minority, or during the ab- sence from the country, of one appointed executor.^* § 293. Grant of letters by the court The executor derives his appointment and his title to the estate from the will, but he is without substantial power until the surrogate grants him authen- ticated evidence of his title in the form of letters testamentary, upon the proof of the will. The surrogate is authorized to grant letters testamentary in three classes of cases, viz. : 1. Where the will has been proved before him.-^^ 2. Where it has been estab- lished by a final judgment in an action, and an exemplified copy thereof filed in his oifice.^" 3. Where a will of personal property has been proved in a foreign jurisdiction and letters have been ary to the executor; but the executor naming two brothers of the testatrix will possess, pending the controversy, as executors, added, " and in ease both only limited powers similar to those of my said brothers herein lastly above specified in Co. Civ. Proc., § 2582. named, shall depart this life prior to (Bible Society v. Oakley, 4 Dem. 450.) my decease, or in case they shall both 12 Sherman v. Page, 21 Hun, 59; decline to act as such executors, then I affd., 85 N. Y. 124. In that case, the hereby nominate and appoint" — here testatrix appointed H. P. " my execu- naming a son of each of the brothers, tor for carrying out the provisions of Both brothers survived the testatrix, my last will and testament so far as One declined to act. The other quali- they relate to parties and properties fied as executor, and both subsequently in this State (New York), and died. Held, that, there being nothing C. G. and D. J., my executors for in the will to evince a controlling in- everything so far as they relate to teution to keep the administration in parties and property in the State of the family, the court could not, on ex- Michigan and elsewhere." H. P. never trinsic evidence that both testatrix's having taken out letters in Michigan, brothers were advanced in age at the was held not accountable as executor time the will was made, disregard the appointed here, for property of the words "prior to my decease," and decedent situated without the State, grant letters to a son of one of the ISDespard v. Churchill, 53 N. Y. brothers. ibuch words constitute a 192; Sherman v. Page, supra. condition. 1* 3 Eedf. on Wills, 53 ; 1 Wms. on 15 Co. Civ. Proo., § 2636. Exrs.(6th Am. ed.) 280; Be Langford, 16 Co. Civ. Proc, § 1863. See ante, L. R., 1 P. & D. 448. In Fosdick v. Dela- § 134. field (2 Eedf. 392), the will, after §§ 294, 295. Lbtteks Testamentaey. 250 granted there, and an exemplified copy of the will, and also of the foreign letters, if any, are produced here.-'^ § 294. Selection of an. executor under a power Where the will contains a power, authorizing the selection of an executor, not named therein, the selection must be made, by the person a]3- pointed for that purpose, within thirty days after making the decree admitting the will to probate; in defaiilt whereof, the power of selection is deemed to have been renounced. Such selec- tion must be made by an instrument in writing, designating the person selected, signed by the proper person, and acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, or proved to the satisfaction of the surrogate, and filed in the surrogate's office. Where the will authorizes the per- son, so to be selected, to act with the executor or executors named therein, the issuing of letters must be delayed for thirty days, for the exercise of the power of selection, and, if the selection is so made, for five days thereafter,^* to enable any person interested to file objections to him; and if letters are not issued to the person so selected, the power of selection is deemed to be exhausted.^® TITLE SECOND. EENUSrCIATION AND ACCEPTASTCE OF APPOINTMENT. § 295. Eight to renounce. — Of course, any person named as ex- ecutor in a will may refuse to enter upon the duties of the ofiice. He cannot be compelled to take a grant of letters ; but before let- ters will be issued to any other person than the one named execu- tor, he must formally renounce his appointment, or be declared disqualified, though he may afterward, in certain cases, retract his renunciation.^" The right to renounce the appointment is ab- solute, and the surrogate has no discretion or privilege to grant or refuse acceptance of it.^^ The right to resign is another matter. 17 Oo. Civ. Proc, § 2695, as amended did not impair the right of the widow 1888. See post, tit. 4 of this chapter, to appoint, on the death of the second 18 Co. Civ. Proc, § 2640. son during ner lifetime. (Cuthbert v. 18 Co. Civ. Proc, § 2641. Testator Babcook, 2 Dem. 96.) See Hartnett appointed his son and wife executor v. Wandell, ante, § 291, note 10. and executrix respectively — adding 20 Robertson v. McGeoch, 1 1 Paige, that if the son died in the wife's life- 640; Codding v. Newman, 63 N. Y. time, she might appoint another. The 639 ; Judson v. Gibbons, 5 Wend. 227 ; son died before testator, who made a Bodle v. Hulse, id. 313; Dempsey's codicil appointing another son as ex- Estate, 1 Tuck. 51. ecutor, and declared that the codicil 21 Casey v. Gardiner, 4 Bradf. 13. should not alter the will further than An agreement to renounce, made, as expressed. Held, that the codicil though for a valuable consideration, 251 Lettees Testamentaey. §§ 296-298. At common law, an executor having once accepted the office, could not resign it.^^ The statute now confers upon the Surrogate's Court the power to accept the resignation of an executor or admin- istrator, and to discharge him from the further execution of his trust, but the right to resign is not absolute.^^ § 296. Kenunciation, how effected. — A voluntary 'renunciation must be by an instrument in writing, signed by the executor, and acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, or attested by one or more witnesses, and proved to the satisfaction of the surrogate, and filed and re- corded in the surrogate's office.^* § 297. Retraction of renunciation. — At any time before letters have been issued to any other person, or, after they have been 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, — the person who renounced his ap- pointment may retract, by an instrument signed, acknowledged, and filed, in like manner as the renunciation. But it is provided that the surrogate has a discretion in the granting of letters to the person so retracting his renunciation.^^ One who, beside being named executor, is also a devisee in trust under the will, having renounced, and letters having been issued to the other executors alone, cannot, on his subsequent retraction of his renunciation, be restored as a trustee, the trust having already vested in the ex- ecutors who proved the will.^** § 298. Exclusion on failure to qualify or renounce Where the person named as executor does not qualify or renounce within before the testator's death, and eon- utor that he would renounce as exee- trary to his expressed wishes, is void utor, if objections to probate of the as being against public policy. (Staun- will were withdrawn, and consent to ton V. Parker, 19 Hun, 55.) the issue of letters of administration 22 See Flinn v. Chase, 4 Den. 85. to himself and another, which proposi- 23 Matter of Bernstein, 3 Eedf. 20. tion was accepted and acted upon, — Where he has been permitted to re- Held as effective as the execution of a sign, and has been discharged by the formal renunciation. (Matter of Bald- court, he cannot thereafter retract win, 27 App. Div. 506; 50 N. Y. Supp. that resignation. (Matter of Beakes, 872; 158 N. Y. 713.) 5 Dem. 128. ) 25 Co. Civ. Proc., § 2639. See Cod- 24 Co. Civ. Proc, § 2639, adopting 2 ding v. Newman, 63 N. Y. 639 ; Mat- E. S. 70, § 8, except that under the ter of Cornell, 17 Misc. 468 ; 41 N. Y. Revised Statutes two witnesses were Supp. 255; Matter of Clute, 37 Misc. required. Having once become in- 710. vested with the office, the executor may 26 Matter of Stevenson, 3 Paige, resign, but he cannot renounce the ap- 420 ; Matter of Van Schoonhoven, 5 id. pointment under this section. (Matter 559. See Dunning v. Ocean Nat. Bank, of Suarez, 3 Dem. 164.) A declara- 61 N. Y. 497. tion made in open . court by an exec- §§ 299, 300. Letters Testamentaet. 252 thirty days after probate; or where a person, chosen by virtue of a power in the will, does not qualify or renounce within thirty days after the filing of the instrument designating him; or, in either case, if objections are filed, and the executor does not qualify or renounce within five days after they are determined in his favor, or, where the objection can be obviated by giving a bond, within five days after the objection has been established, — the surrogate must, upon the application 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 di- recting that, in default of so doing, he be deemed to have re- nounced his appointment.^^ Such order should be served person- ally, but if it cannot, with due diligence, be so served within the State, the surrogate may prescribe the manner in which it must be served, which may be by publication. If the person does not qualify within the time fixed, an order must be made and re- corded reciting the facts, and declaring that he has renounced his appointment as executor.^® The person thus failing to qualify or renounce may afterward apply for, and the surrogate may, in his discretion, grant, letters to him, unless letters have been already issued to another person, or, if issued, have been revoked, or the person taking them has died or become a lunatic, and there is no other acting executor or administrator.^' § 299. Only the executor named in letters can act Only the executor named in the letters issued by the court has any power or authority to act in that capacity. A person named in the will as an executor, and not named as such in the letters testamentary or in letters of administration with the will annexed, is deemed to be superseded by such letters, and consequently has no power or authority whatever as executor until he appears and qualifies.^" Hence, in an action or special proceeding in favor of or against the executors in their representative capacity, the one to whojn letters testamentary have not been issued is not a necessary party.^^ § 300. Acceptance and oath of oflSce In case there is no objec- tion to the competency of the executor, he should appear and take the oath of office forthwith upon the entry of the probate decree. 27 Co. Civ. Proc, § 2642. 31 Co. Civ. Proc, § 1818. See Mat- 28 Co. Civ. Proc., § 2642, as amended ter of Stevenson, 3 Paige, 420 ; Matter 1883. of Van Schoonhoven, 5 id. 559; Leg- 29 Co. Civ. Proc, §§ 2639, 2642. gett v. Hunter, 19 N. Y. 445; Wever 30 Co. Civ. Proc, § 2613, as amended v. Marvin, 14 Barb. 376. 1893, adopting 2 E. S. 71, § 15. 253 Lettees Testamentary. §§ 301, 302. The oath, which must be in writing, and to the effect that he will faithfully discharge the duties of his office, should be filed in the surrogate's office. The oath may be taken before any officer, within or without the State, who is authorized to take an affidavit. Where it is taken without the State, it must be certified as re- quired by law, with respect to an affidavit to be used in the Su- preme Court.^^ § 301. Form of letters and their record Letters testamentary, like letters of administration and letters of guardianship, must be in the name of the People of the State. Where they are granted by a surrogate, or by an officer or person temporarily acting as surrogate, they must be tested in the name of the officer granting them, signed by him or by the clerk of the Surrogate's Court, and sealed with the seal of that court. Where they are issued out of another court, they must be tested in the name of the judge hold- ing the court, signed by the clerk thereof, and sealed with his seal.^^ They must in all cases be recorded in a book kept for that purpose in the surrogate's office.^* § 302. When bond required of executor. — Unlike an adminis- trator, an executor is not, in general, required to give a bond for the faithful discharge of the duties of his office. The will may, however, make the appointment of the executor conditional upon his giving a bond, and in that case the condition miist be complied with before letters will issue. In such a case, the bond given should run to the legatees and not to the people, as ordinarily.^® A nonresident executor is not required to give a bond, unless ob- jection is raised on the ground of his nonresidence. If there is no objection to him, except his nonresidence, he is entitled to let- ters without giving a bond, " if he has an office within the State, for the regular transaction of business in person; and the will contains an express provision, to the effect that he may act with- out giving seciirity." ^® The subject of official bonds is discussed in a subsequent chapter. 32 Co. Civ. Proc, § 2594. The creditor or person interested in the officers who are authorized to admin- estate, a nonresident executor is en- iater the oath, either within or with- titled to letters without giving secu- out the State, are enumerated in the rity. (Matter of Vernon, 1 Civ. Proe. Code, §§ 842, 844. Rep. 304, note.) In Kings county it 33 Co. Civ. Proc, § 2590. has been held both wavs. (Matter of Si Co. Civ. Proc, § 2498, subd. 2. Demarest, 1 Civ. Proc Rep. 302 ; Mat- 35 Sullivan's Estate, 1 Tuck. 94. ter of Emery, 18 id. 365.) Upon the 36 See Co Civ. Proc, S 2638. It is removal of an executor from this State, held in New York county that, in the the surrogate must, upon application, absence of objections thereto by a revoke the letters testamentary no §§ 303, 304. Letters Tbstameittabt. 254 TITLE THIED. BTECESSABY QUALIPICATIOITS OF EXECUTOE. § 303. Statutory disqualifications — The statute declares that " no person is competent to serve as an executor who, at the time the will is proved, is (1) incapable in law of making a contract; (2) under the age of twenty-one years; (3) an alien, not an in- habitant of this State; (4) who shall have been convicted of an infamous crime; (5) who, on proof, is found by the surrogate to be incompetent to execute the duties of such trust, by reason of drunkenness, dishonesty, im.providence, or want of understand- ing." ^^ And, in his discretion, the surrogate may refuse to grant letters to a person unable to read and write the English language.^* The statutory disqualifications of administrators are similar, though not expressed in identical language; and the convenience of the reader will be consulted by referring here to the cases which have settled the construction of either statute. § 304. Letters may issue to married women. — Under the Re- vised Statutes,^* a married woman could not be appointed an ad- ministratrix or guardian, and she could not act as an executrix and as such receive letters testamentary, unless her husband filed a written consent with the surrogate, thereby becoming responsible for her acts jointly with her. In 1863,*° a married woman was permitted to receive letters of administration, on the same con- dition on which letters testamentary might issue to her, to wit, bond having been given. (John's Es- changes, a part of section 2612 of Co. tate, 20 Daily Eeg., No. 136.) The Civ. Proc. will of testator nominated as two of 38 L. 1867, c. 782, § 5; now incor- its executors two residents of another porated in Co. Civ. Proc., § 2612. State, expressly providing that they Before the passage of this statute, might act as such without giving se- it was held that mere illiteracy curity. The nominees were respect- did not authorize the surrogate to ively the treasurer and cashier of a supersede the letters testamentary, foreign manufacturing corporation, (Emerson v. Bowers, 14 N. Y. 449.) having its principal office in the city The fact that the executor has but of New York, and attended daily slight knowledge of the English lan- thereat in such capacities during busi- guage does not furnish sufficient ness hours. Held, that they had " an ground for the revocation of his let- office within the State for the regular ters, it not appearing that the estate transaction of business in person." has suffered, or is likely to suffer, evil (Postley V. Cheyne, 4 Dem. 492; s. c. results from that cause. (Hassey v. as Estate of Sterling, 9 Civ. Proc. Eep. Keller, 1 Dem. 577.) See Matter of 448; 1 St. Rep. 139.) Haley, 21 Misc. 777; 49 N. Y. Supp. ST 2 R. S. 69, § 3, as amended L. 397. 1830, c. 230, § 17; L. 1873, c. 79, and 39 2 R. S. 69, § 4. by L. 1893, c. 686, made, with verbal 4" L. 1863, c. 362, § 4. 255 Lettees Testamentary. §§ 305-307. the writteii consent of her husband. It was not until 1867 *' that she was declared capable of acting, without the consent of her hus- band, as executrix, administratrix, and guardian, and of receiving letters as such, as though she were a single woman. § 305. Nonresident aliens. — Only those are excluded on the ground of alienage and noninhabitancy who are both aliens — i. e., not citizens of the United States — and nonresidents of this State, although named in the will as a legatee.*^ " Aliens," as used in the statute, means those bom out of the jurisdiction of the United States, and who have not been naturalized; not citizens resident of another State.*^ § 306. Removal of disability "Where the disability of a person under age, or an alien, is removed before the complete execu- tion of the will, — i. e., the complete administration of the es- tate, — he is entitled to apply for, and receive, supplementary letters in the same manner as the original letters, and is author- ized to join in the execution of the will, with the persons pre- viously appointed.^* § 307. Drunkenness, dishonesty, improvidence, etc Drunken- ness, when not so gross as to justify a finding that the person is an habitual drunkard, under the statute, will not preclude the issue of letters.*^ The " infamous crime " must be one punish- able with death, or by imprisonment in a State prison, and the conviction must have been had in a court of this State, for an offense against the laws thereof. A conviction in a court of an- other State, of the crime of larceny, is not evidence of improvi- dence on the part of the convict, which would justify an adjudi- cation, by the surrogate, of incompetence to execute the duties of an administrator.** Before " dishonesty " was made a dis- qualification, by the amendment of 1873,*'^ no degree of legal or moral guilt or delinquency rendered a person incompetent, unless 41 L. 1867, c. 782, § 2. See Buncev. 43 McGregor v. McGregor, 3 Abb. Ct. Vandergrift, 8 Paige, 37; Matter of App. Dec. 92; 1 Keyes, 133. Elgin, 1 Tuck. 97; Whitney v. Coap- 44 Co. Civ. Proc, § 2613, as amended man, 39 Barb. 482. After the Act of 1893. 1867, the provision of L. 1837, c. 460, 45 Elmer v. Keehele, 1 Redf. 472; 1 § 34, that the surrogate might revoke Tuck. 52. See Matter of Cady, 36 the appointment of an executrix Hun, 122; Matter of Manley, 12 Misc. marrying after her appointment, be- 472 : 34 N. Y. Supp. 258 ; Matter of came obsolete, and has been repealed. Reichert, 34 Misc. 288; 69 N. Y. Supp. (L. 1880, c. 245.) See Woodruff v. 644. Cox (2 Bradf. 153), as to eflfeet of 46 O'Brien v. Neubert, 3 Dem. 156. marriage after letters. 4T L. 1873, c. 79, § 1. 42 Walsh's Estate, 20 Daily Reg., No. 151; Matter of Burk, 1 St. Rep. 316. ^ 307. Letters Testamentary. 256 he had been actually convicted of an infamous crime, upon in- dictment or other criminal proceeding;** nor did immoral habits or offenses of moral turpitude disqualify.*® As commonly un- derstood, dishonesty may be predicated of many acts not pun- ishable under the criminal law. A crime is not necessary to disqualify a person. On the other hand, dishonest conduct, such as breaking a contract, pirating a trademark, making a false claim to property and the like, would not disqualify. But the term would include, we think, the case of a debt fraudulently con- tracted or incurred in a fiduciary relation for which the party was held to bail in a civil action. So it might include an assign- ment of property adjudged to have been made with intent to cheat and defraud creditors. It would seem to mean a " dis- honesty " in money matters. Mere lying or even perjury, of it- self, would not^ we think, be held to be such disqualifying dis- honesty. It may be properly remarked here that general repu- tation for dishonesty ought not to be considered suificient proof of the fact, but particular acts should be shown, from which the court may draw its conclusion. The " improvidence " con- templated by the statute is that want of care or foresight in the management of property which is likely to endanger the estate' or diminish its value,''" and refers to such habits of mind and body as render a man generally, and under all ordinary circum- stances, unfit to serve. ^^ The fact that a man is a professional gambler is presumptive evidence of such improvidence,®^ but mere insolvency is not,*^ nor the fact that he is a debtor to the estate.®* A " want of understanding " is something more than a lack of information on legal subjects or business matters;^® and it has been held that an ill regulated temper and a want of self control, even though excessive, are not a good objection to a grant of let- ters.®" We shall revert to this subject in speaking of proceed- ings to revoke letters for the incompetence of the executor. 48 Coope V. Lowerre, 1 Barb. Ch. 45. B3 Matter of Poist, Dayt. on Surr. See Matter of Cutting, 5 Dem. 456. (1st ed.), Appendix, 1. See Shields The only admissible evidence of the v. Shields, 60 Barb. 59; Senior v. conviction of a crime is the record of Aekerman, 2 Redf. 302; Martin v. the conviction. (Harrison v. Mc- Duke, 5 id. 597; Grubb v. Hamilton, Mahon, 1 Bradf. 289.) 2 Dem. 414. 49 See McGregor v. McGregor, 3 Abb. 54 Churchill v. Prescott, 2 Bradf. Ct. App. Dec. 92; 1 Keyes, 133. 304; Matter of Morgan, 2 How. Pr. 50 Coope v. Lowerre, 1 Barb. Ch. 45; (N. S.) 194. Coggshall V. Green, 9 Hun, 471. 55 Shilton's Estate, 1 Tuck. 73. See 51 Emerson v. Bowers, 14 N. Y. 449 ; Matter of Berrien, 3 Dem. 263. Matter of Manley, supra. 56 McGregor v. McGregor, 3 Abb. Ct. 62 McMahon V. Harrison, 6 N. Y. 443. App. Dec. 92; 1 Keyes, 133. 257 Letters Testamentary. §§ 308-310. § 308. Adversity of interest — The grounds of disqualification given in tlie statute, and those only, can be successfully urged against the appointment of one who is entitled to priority under the statute. Adverse and conflicting interests are not statutory disqualifications.^^ § 309. Staying issue of letters — The executor may demand, upon his appearing and qualifying, the immediate issue of letters to him, on the entry of the decree admitting the will to probate.®^ !N^o special application in writing or order for the letters is re- quired. Before, however, the letters are actually issued, any person interested in the estate, including a creditor, may procure a stay of their issue by filing an afiidavit. The afiidavit should set forth, in addition to a statement of his interest, the legal ob- jections to the competency of the executor, or that the affiant is advised and believes that sufficient objections exist, and that he intends to file a specific statement of the same. Thereupon the surrogate is required to stay the grant of letters for at least thirty days, or until the matter is sooner disposed of .^^ The speci- fication or statement, duly verified by the objector, or his attor- ney, may, of course, be made in the first instance, dispensing with the affidavit. No time is specified for the filing of the specification, after the affidavit, but if not filed before the stay expires, letters vsdll issue of course. If the objections are directed to the competency of only one of several executors, the issue of letters to the others, not objected to, will not be stayed.^" § 310. Disposition of objections. — The surrogate must inquire into an objection duly filed, for which purpose he may receive proof, by affidavit or otherwise, in his discretion; and if it ap- pears that there is a legal and sufficient objection to any person " named as executor in the will," the letters will not be issued B7 O'Brien v. Neubert, 3 Dem. 161 ; under the assignment was only in- Matter of Shipman, 25 St. Rep. 5 ; sisted on because of the threat of a son Matter of Cutting, 5 Dem. 457; Mat- to contest the will. The objection was ter of Place, 4 id. 487 ; 105 N. Y. 629. overruled. Executors are not precluded In Matter of Gumming (N. Y. Law J., from acting as trustees upon other Dec. 12, 1891), objection was made to trusts for other beneficiaries, if the the executrix and testamentary trus- transaction is not inconsistent with tee that she claimed the whole estate the duties they owe as executors, by virtue of an alleged assignment (Barry v. Lambert, 98 N. Y. 300.) made to her by the testator. She al- 68 Co. Civ. Proc, § 2636. leged that it was not, and never was, S9 Co. Civ. Proc, § 2636. her intention to take the estate under 60 It was otherwise under the former the assignment; that she intended to statute. (McGregor v. Buel, 24 N. Y. respect the wishes of testator as in- 167.) dicated in his will, and that her claim 17 §§ 311, 312. Letters Testamentary. 258 to him, except in certain cases hereinafter mentioned.'^^ The statute does not define " a legal and sufficient objection ;" but it evidently includes not only cases of absolute disqualification as above mentioned, but others ; such as precarious circumstances, or nonresidence, which are made grounds for the revocation of letters testamentary.^^ § 311. Obviating objections by giving a bond Although an objection against an executor has been established to the satisfac- tion of the surrogate, he may entitle himself to letters by giving the usual bond, in the following cases: " 1. Where the objection is, that his circumstances are such that they do not afford ade- quate security to the creditors, or persons interested in the es- tate, for the due administration of the estate. 2. Where the objection is, that he is not a resident of the State; and he is a citizen of the United States." ^ Where objection is made un- der the first head, it is not material to inquire whether the testator was aware of the want of responsibility in the executor at the time of making the will. If he has been so improvident as to commit the administration of his estate to one whose circum- stances are such as not to afford adequate security for the faith- ful discharge of his trust, the court must interfere for the protection of the estate." The executor from whom a bond is required, must qualify, and his sureties must justify, as in the case of an administrator giving bonds. In fixing the penalty of the bond, the surrogate must take into consideration the value of the real property or the proceeds thereof, which may come into the executor's hands under the will.^ TITLE FOURTH. ANCILLARY LETTERS ON FOREIGN PROBATE. § 312. When granted. — It has always been the practice of our probate courts, independently of any statutory authority, to ac- knowledge the foreign probate of a will, so far at least as to follow the decree of the foreign court, in the grant of probate, and to issue letters testamentary here. This was done upon the production of a duly exemplified copy of the probate granted by 61 Co. Civ. Proc, § 2637. If objeo- «2 See c. XIV, post. tlon can be made only to an executor 6S Co. Civ. Proc, § 2638. See Mont- named in the will, the section does not fort v. Montfort, 24 Hun, 120. apply to an executor who is not named, «* Wood v. Wood, 4 Paige, 299. but only constructively appointed. «6 Co. Civ. Proc, § 2645. See c XV. 259 Lettees Testamentary. § 312. the proper court of the testator's domicile. Precedents of this practice are found in the records of the colonial government of this State of a remote date.®^ The practice has been confirmed by statute. The Code of Civil Procedure, revising and amend- ing the former statutes on this subject, provides, that v^here 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 admitted to probate by a competent court, within the foreign country, or within the State or Territory of the United States, where it was executed,^* or where the testa- tor resided at the time of his death, the Surrogate s Court having jurisdiction of the estate must, upon an application duly made, accompanied by a copy of the will, and of the foreign letters, if any had been issued, duly authenticated, record the will and the foreign letters, and issue thereupon ancillary letters testamentary, or ancillary letters of administration with the will annexed, as the case requires.®*' The application must be raade upon an ex- emplified copy of the will, not on the original will itself.™ It will be noticed that the Code (§ 2695) gives the surrogate ju- risdiction, in a proper case, to grant not only ancillary letters testamentary, but also ancillary letters of administration with the will annexed, as the case requires. A foreign administrator with the will annexed may, therefore, apply here for ancillary letters; if the letters testamentary issued in another State, on which ancillary letters testamentary have been granted here. 66 See Isham v. Gibbons, 1 Bradf. which it was admitted to probate and 69. As to the powers of a foreign not executed within that State. executor or administrator to take (Taylor v. Syme, 162 N. Y. 513; 31 charge of the estate here, to collect Civ. Proc. Rep. 1.) and release debts, etc., consult Vroom 69 Co. Civ. Proc, § 2695, as amended V. Van Home, 10 Paige, 549 ; Brown 1888. As to manner of authentication, V. Brown, 1 Barb. Ch. 189; Lawrence see § 2704, as amended 1888. Co. V. Lawrence, 3 id. 71; Williams v. Civ. Proc, § 2705, was repealed by L. Storrs, 6 Johns. Ch. 353 ; Doolittle v. 1888, c. 495. Ancillary letters may be Lewis, 7 id. 49; Chapman v. Fish, 6 issued on a will admitted to probate Hill, 554. See § 518, post. by the court of a United States con- 67 See Matter of Thompson, 1 Civ. sulate-general. (Matter of Taintor, 5 Proc. Kep. 264. The court must be Redf. 79.) Before the amendment of satisfied that the testatrix, at the 1888, besides a copy of the will and time of her death or of the execution copy of the letters, the judgment or of the will, resided without the State ; decree admitting it to probate had to the motion will not be granted on afii- be produced. (Brown v. London, 4 davits, but a reference should be had Civ. Proc. Rep. 11.) The effect of the to ascertain the facts. ( Matter of amendment is to supersede, among Cavin, 1 Connoly, 117.) • other cases. Matter of Hudson, 5 Redf. 68 A Surrogate's Court of this State 333; and, in part. Matter of Thomp- has no power to grant ancillary let- son, 1 Civ. Proc. Rep. 264. ters upon a foreign probate of a will, 70 Matter of Thompson, 1 Civ. Proc. made by a nonresident of the State in Rep. 264. ■ § 313. Letters Testamentaet. 260 have been revoked, the latter fall with the revocation of the foreign letters; and the administrator with the will annexed ap- pointed by the foreign tribunal, on the removal of the executors, is entitled to letters here without notice to the deposed executors.''^ § 313. Application, where made.^ — The application must be made to " the Surrogate's Court having jurisdiction." Jurisdic- tion is acquired by the existence of assets in the county of the surrogate.^^ The word " assets " is defined to signify " personal property applicable to the payment of the debts of the decedent." It is the actual existence or location of such personal property in the county which determines the question of jurisdiction; and where the asset consists of a bond belonging to the estate, the county in which the instrument actually is, and not the county where the obligor resides, is the proper county in which to apply in such a case. Where, therefore, a resident of another State died there, leaving a will which was admitted to probate there, and owning a bond in a county of this State, the Surrogate's Court of that county was held to be the " court having jurisdic- tion of the estate," for the purpose of issuing letters, under the original of the foregoing provision.''^ As the statute which re- lates to the grant of ancillary letters on foreign probate applies only to wills of personal property, it is not necessary upon an application to show that the vdll in question was executed ac- cording to the laws of this State, nor is it necessary that letters should have been granted upon the vdll, in the State where it was admitted, but the petition must show that the surrogate has jurisdiction.^* The petition should set forth the names of, and (if known) the indebtedness due, or claimed to be due, to cred- itors residing in this State; a failure to do so being fatal to the application.'^® The statute relating to taxable transfers ™ pro- vides that every petition for ancillary letters, whether testa- n Matter of Gilleran, 50 Hun, 399. Matter of Langbein, 1 Dem. 448. The 'i^ Evans v. Schoonmaker, 2 Dem. fact that the petition states that the 249 ; Hendrickson v. Ladd, id. 402. An will was executed in the State where appointment is proper, though the probate was granted, will not confer only asset is a claim against the ap- jurisdiction, where the transcript of plicant's husband then in litigation, the record which accompanied it which had resulted in a judgment in showed the fact to be otherwise, his favor from which an appeal was (Taylor v. Syme, 162 N. Y. 513; 31 pending. (Matter of Place, 4 St. Rep. Civ. Proc. Rep. 1.) 533.) 75 Hendrickson v. Ladd, 2 Dem. 402; 73 Beers v. Shannon, 73 N. Y. 292. Estate of Winnington, 1 Civ. Proc. See Co. Civ. Proc, § 2478; Matter of Rep. 267. Place, supra. 76 L. 1896, c. 908, § 229, as amended 74 For requisite facts to give juris- by L. 1901, c. 173. diction, see Co. Civ. Proc, § 2476; 261 Letters Testamentaey. §§ 314, 315. mentary or of administration, skall set forth the name of the county treasurer or the State comptroller (according as the office of appraiser is salaried or otherwise), and a true and correct statement of all the decedent's property in the State and the value thereof. § 314. The hearing, citation, etc. — As the chief object of the statute authorizing ancillary administration is to protect the claims of domestic creditors,^'' the surrogate is required, upon the presen- tation of a petition for ancillary letters upon a foreign probate, to ascertain, to his satisfaction, whether any creditors, or persons claiming to be creditors, of the decedent, reside within the State; and if so, the name and residence of each creditor, or person claim- ing to be a creditor, so far as the same can be ascertained. Unless such creditors shall file duly acknowledged waivers of the issuance and service of citation, he must thereupon issue a citation, directed to each person whose name and residence have been so ascertained ; and also directed generally to all creditors, or persons claiming to be creditors, of the decedent. Any such person, although not cited by his name^ay appear and contest the application, and thus make himseli a party to the special proceeding.''* The citation should, under the Transfer Tax Law, also be issued to, and served upon, the county treasurer in counties in which the office of ap- praiser is not salaried, and in other counties, the State comp- troller.''^ The personal names and residences of the creditors, not the names of the firms of which they' are members, must be given."" § 315. To whom letters will be granted. — Where the will spe- cially appoints one or more executors, with respect to personal property situated within this State, the ancillary letters testament- ary must be directed to the person so appointed, or to those who are competent to act and qualify. If all are incompetent, or fail to qualify, or in a case where such an appointment is not made, ancillary letters testamentary, or ancillary letters of ad- ministration, will be " directed to the person named in the foreign letters ; or to the person otherwise entitled to the possession of the personal property of the decedent, unless another person ap- plies therefor, and files, with his petition, an instrument, executed by the foreign executor, or administrator, or other person entitled as aforesaid ; or, if they are two or more, by all who have quali- TTMoyer v. Weil, 1 Dem. 71. ™L. 1896, e. 908, § 229, as amended T8 Co. Civ. Proc, § 2698, as amended by L. 1901, c. 173. 1899. 80 Matter of Thompson, 1 Civ. Proc. Eep. 264. §§ 316, 317. Letters Testameittabt. 262 fied and are acting ; and also acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, authorizing the petitioner to receive such ancillary letters." *^ In that case the surrogate must, if the petitioner is a fit and competent person, is- sue such letters to him. Where two or more persons are named in the foreign letters, or in an instrument executed as above pre- scribed, the ancillary letters may be directed to either or any of them, without naming the others, if the others fail to qualify, or if, for good cause shown to the surrogate's satisfaction, the decree so directs. ^^ § 316. Penalty of the bond required. — The names of creditors are required to be ascertained before the issue of- citation, so that the same when issued may be served on them ; after the return of the citation, duly served, the amount of debts due or claimed to be due from decedent to resident creditors are then to be ascertained, as nearly as possible, by the court, with a view of fixing the pen- alty of the bond to be given by the ancillary administrator. The policy of our statute in respect to the security to be exacted of an ancillary administrator, is directed to insuring the distribution to the creditors of the intestate, residing here, of their ratable share of his estate. Such being the case, it has been thought that a bond " in a sum not exceeding twice the amount which appears to be due from the decedent to residents of this State," ^ was all that the court cquld require of an ancillary executor or administrator f* but it is now settled that the surrogate's power is not limited to requiring a bond in that penalty, but he may require a bond in a penalty of double the value of the personal property in this State, the statute intending to give a discretion to modify the general rule with regard to the amount of the penalty of an administrator's bond.«^ § 317. Assets here, how disposed of. — It is made the ancillary executor's duty, " unless he is otherwise " directed, to transmit the money and other personal property of the decedent, received by him after the letters are issued, or then in his hands in another capacity, to the State or Territory where the principal letters were 81 Co. Civ. Proc, § 2697. taken out ancillary letters here. See 82 The power of the courts here, over c. XVII, post. the person to whom the ancillary let- 83 Co. Civ. Proc, § 2699. terg are issued, and his rights, powers, 84 Matter of McEvoy, 3 Law Bui. duties, and liabilities, will be eon- 31 ; Matter of Musgrave, 5 Dem. 427. sidered hereafter. We shall also have 85 Matter of Prout, 128 N. Y. 70 ; occasion to speak of the rights, etc., 38 St. Kep. 257. of foreign executors, etc., who have not 263 Lettees Testamentaey. § 318. granted, to be disposed of pursuant to tbe laws thereof. He may be directed otherwise to dispose of such property, either in the decree awarding the letters, or in a decree made upon an account- ing, or by an order of the surrogate made during the administra- tion of the estate, or by the judgment or order of a court of record in an action to which the administrator is a party ; and money or other property transmitted to the intestate's domicile, at any time before he is so directed to retain it, must be allowed to him upon an accounting.*® It is discretionary whether the court will direct administration upon local assets, or will order their transmission to the foreign jurisdiction.®^ § 318. Eights, powers, etc. — The rights, powers, duties, and lia- bilities of an ancillary executor or administrator, where not spe- cially regulated, are governed by the rules contained in the Code applying to a domestic executor or administrator in chief,®* unless a different intent is therein expressed or implied ; except that he has no power or duty in respect to the disposition of his intestate's real property situated here, for the payment of debts or funeral expenses.** While it is true that the administration of the de- cedent's domicile is the principal one, and others ancillary only, yet, where the former administration has been completed by the distribution of the assets, and the principal administration has been discharged, it may be said, we think, that the ancillary ad- ministrator here becomes, to the extent of the assets in his hands, a principal administraor, mth full powers as such. The Surro- gate's Court, or any court of this State., which has jurisdiction of an action to procure an accounting, may, in a proper case, by its judgment or decree, direct the ancillary executor or adminis- trator to pay, out of the money or the avails of the property re- ceived by him under the ancillary letters, and with which he is chargeable under his accounting, the debts of the decedent due to creditors, residing within the State; or, if the amount of all the decedent's debts, here and elsewhere, exceed the amount of all the decedent's personal property applicable thereto, to pay such a 86 Co. Civ. Proc, S 2700. See Mat- 88 Smith v. Second Nat. Bank, 169 ter of Conkliug, 15 St. Eep. 748. N. Y. 467; 62 N. E. 577. In that case 87Despard v. Churchill, 53 N. Y. it was held that he might pledge the 192; Matter of Hughes, 95 id. 55; property of the estate in anticipation Matter of Hegemann, 22 Daily Reg., of income. No. 20; Crum v. Bliss, 1 Law Bui. 68; 89 Co. Civ. Proc, § 2702. Ancillary Cummings v. Banks. 2 Barb. 602 ; letters do not authorize the sale of real Trimble v. Dzieduzyiki. 57 How. Pr. property. (Hendrickson v. Ladd, 2 208. See Matter of Dunn, 39 .^p. Dem. 402.) Div. 510- Sorzano v. Coudert, 28" 677. § 319. Letters Testamentaet. 264 sum to each creditor, residing within this State, as equals that creditor's share of all the distributive assets, or to distribute the same among next of kin, or otherwise dispose of the same, as jus- tice requires.^" The office pertains to personal property only. Hence an an- cillary executor of a will, containing a power of sale of real estate, which he executed, is not entitled, on his accounting, to commis- sions on the proceeds, inasmuch as he made the sale as the donee of a power in trust, and not by virtue of his office as ancillary executor.^^ TITLE FIFTH. LETTERS TO TESTAMENTARY TRUSTEES. § 319. Execut&r's and trustee's functions distinguished. — The office of an executor, and that of a testamentary trustee, are es- sentially distinct, although not unfrequently the same person is appointed both executor, and trustee. In the former capacity, it is his duty to collect the property and pay the debts and lega- cies; in the latter, he is called upon to invest and manage a particular fund or trust estate, in accordance with the directions of the will. Where the will indicates the intention of the tes- tator to give his trustees a distinct and independent character, the probate of the will does not make the executors trustees also, unless they accept the trust as such and qualify accordingly.®^ But where the will appoints a person executor, and then im- poses upon him, as such, the execution of a trust, then the ap- pointee, by proving the will and qualifying as executor, will be deemed to have accepted the trust; and he is accountable in each capacity separately. It is as if two different persons had been appointed to the two offices. But there is nothing to prevent a person who is named both executor and trustee from accepting one office and renouncing or disclaiming the other. ®^ The pre- sumption of an acceptance of a trust, arising from the accept- ance of the office of executor may be overcome by proof that 90 Co. Civ. Proc, § 2701. See Suarez guardian, who is designated by a will, V. The Mayor, 2 Sandf. Ch. 173 ; Par- or by any competent authority, to exe- sons V. Lyman, 20 N. Y. 103 ; Despard cute a trust created by a will. It also V. Churchill, 53 id. 192. includes such an executor or admin- 91 Matter of Deitsch, N. Y. Law J., istrator, where he is acting in the exe- June 25, 1890. cution of a trust created by the will, 92 De Peyster v. Clendining, 8 Paige, which is separable from his functions 295. As used in the Code, a "testa- as executor or administrator. (Co. mentary trustee " includes every per- Civ. Proc, § 2514, subd. 6. ) son except an executor, an administra- 93Wms. on Bxrs. (6th Am. ed.) tor with the will annexed, or a 1894, note I. 265 Lettees Testamentary. § 320. the trust was declined, and one may do this as effectually by words or acts, without deed, as by a deed.^* Until 1850, Surrogates' Courts did not possess jurisdiction, by statutory provision at least, over testamentary trustees as such. The jurisdiction has been extended from time to time since that date, and is greatly enlarged by the Code of Civil Procedure. A statement of the nature and limits of this new jurisdiction is reserved for future consideration.^^ It is proper, however, to speak in this place of the authority of the court to make a grant of letters to testamentary trustees. § 320. Executor need not separately qualify as trustee. — As was said, above, a person who accepts the office of executor by qualify- ing and receiving letters will be deemed by that act to have ac- cepted the duty of executing any trusts which the will has con- fided to him. He is not required to take any additional oath of office; nor is it necessary that the letters testamentary directed to him, should designate his character or function as trustee, as distinguished from that of executor. So also his bond as execu- tor, where one is required of, and given by him, will be held as security for the faithful performance of his duties as trustee. In case, however, the will contemplates that the executor as such is to perform only the ordinary duties of an executor, and that when the estate is settled by him, another diity is to arise, to be performed either by him or by another, then, it is said, the bond of the executor is not security for those further duties.^ The designation of persons named to execute a will as " trustees " does not constitute them such, u.nless the will creates trusts for them to execute, but in order to ascertain the intention of the testator, the whole will and all its parts must be taken into con- sideration. A provision in a will for qualification by persons therein designated " executors and trustees," negatives the infer- 9* In Green v. Green (4 Redf. 357), the interest of the fund to D., and to A., B., and C. were appointed exec- account, it was held that A., by ac- utors of a will, and A. and B. were cepting the office of executor, had not, also appointed therein trustees of a under the circumstances of this case, fund, to pay the interest thereof to D. assumed the duties of trustee; and for life, with power to make advances never having received or intermeddled to him out of the principal. A. alone with the trust fund, he was not liable qualified as executor. D. objected to therefor to the beneficiary; that the A.'s acting as trustee, and the fund payment by A., out of his own pocket, was, at D.'s request, held and managed of money to D., for his support, was by B., who paid D. the interest and immaterial, part of the principal. Upon B.'s 95 See c. XVII, post. death, A. advanced, out of his own 96 Perry on Trusts, § 262, and cases funds, money for the support of D. cited. Upon a motion to compel A. to pay § 321. Lettees Testambittaey. 266 ence of an intention to constitute a trust, in the technical sense of that word.^^ § 321. Letters of trusteeship not necessary. — A different ques- tion arises in case the ofSce of trustee is conferred hy the will upon a person other than the executor. The will may specifically devise or bequeath a part of the estate to one person, in trust for particular objects, and confide the remainder of the estate to another, as executor, for general administration; or it may confide the whole estate to the executor, to collect the same, and, after paying debts and legacies, to hand over the residuum or a part of it, to another person, in trust, to invest and manage. In the latter case, the trustee does not require, as evidence of his authority to receive it, any formal grant of letters by the surro- gate. The executor, before paying over the fund, will, for his own protection, see to it that the trustee is competent and quali- fied to accept the trust. Having once accepted it, he thenceforth becomes subject to the direction and control of the Surrogate's Court, and may be required, in a proper case, to furnish security and to render an account of his proceedings as trustee. The stat- ute nowhere confers upon Surrogates' Courts any authority to issue letters to a testamentary trustee, nor to appoint such a trustee, except in the cases of the resignation, death, lunacy, or removal of a testamentary trustee, when the trust has not been fully executed. They may, in such cases, " appoint his successor." "* We believe there is no precedent of a grant of let- ters of trusteeship, upon the probate of a will, to a person other than the executor; nor of any proceeding in the Surrogate's Court, similar to those in the case of executors, to compel a person, named trustee in a will, to appear and qualify within a time stated, or be superseded. The remedy of the cesiuis que trust, in such a case, is in the law courts. Nor, it would seem, has the Surrogate's Court any authority to accept the renun- ciation or disclaimer of a person named trustee, and appoint another in his stead; nor, to appoint one to fill the place of a nominated trustee who died before the probate of the will. The court can appoint only " a successor " of a person who has once been trustee.*^ 97 Bacon v. Bacon, 4 Dem. 5. 5 Redf. 466 ; Matter of Post, 30 St. 9S Co. Civ. Proc, § 2818. As to ap- Rep. 217. pointment of a successor to a deceased 99 Under L. 1882, c. 185, entitled sole trustee of an express trust, see L. "An act in relation to trustees of per- 1882, e. 185. See also Matter of Clark, sonal estates," and L. 1884, c. 408, 267 Letters Testamentary. §§ 323, 324. § 322. On appointing a successor. — The decree appointing the successor to carry out ^e-Ajaexeeuted trusts of the will is, of it- self, a sufficient warrant of authority to the trustee to act, and vests the trust estate in him, without the issue of formal letters, which are merely evidence of his authority, and not the source of it. Without doubt, however, the surrogate may, and in some cases it may be desirable that he should, upon application, is- sue formal letters to the successor thus appointed, upon his ac- ceptance of the appointment, and qualifying. A bond may be required of such appointee in cases where an executor would be required to furnish security;^ and be may be required to subscribe and file an oath of office, although the statute is silent on the subject. TITLE S'lXTH. FOECE AND EFFECT OF LETTERS. § 323. Eeckoning time upon successive letters Where it is pre- scribed that any act, with respect to the estate of a decedent, 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 from the issuing of the first letters, except in a case where it is other- wise specially prescribed by law; or where the first or any sub- sequent letters are revoked, under section 2684 of the Code, or by reason of the want of power in the Surrogate's Court to issue them for any cause.^ § 324. Priority among different letters. — The person or persons to whom letters testamentary, or letters of administration, are first issued, have sole and exclusive authority, as executors or administrators, pursuant to the letters, until the letters are regu- larly revoked. They are entitled to demand and recover from any person, to whom letters upon the same estate are afterward issued by any other Surrogate's Court, the decedent's property in his hands. But the acts of a person, to whom letters were afterward issued, done in good faith, before notice of the letters first issued, are valid; and an action or special proceeding, corn- re-enacting Co. Civ. Proc, § 2818, the Burke, 1 St. Rep. 316; Matter of Sis- Supreme Court and Surrogates' Courts tare, N. Y. Law J., Oct. 25, 1890. The have concurrent jurisdiction over the proceedings for the removal of a tes- appointment of a successor to a de- tamentary trustee are detailed in ceased sole testamentary trustee, c. XIV, tit. 4, post. (Matter of Valentine, 3 Dem. S63.) 2 Co. Civ. Proc, § 2593. See Slocum iCo. Civ. Proc, § 2815; Matter of v. English, 62 N. Y. 494. § 325. Lettees Testamentaet. 268 menced by him, may be continued by and in the name of the person or persons to whom the letters were first issued.^ § 325. Effect of letters as evidence. — The subject of the con- clusive effect of a judicial determination of a Surrogate's Court, in matters of probate and administration, has already been dis- cussed.* In regard to the effect of the letters, as evidence of the authority of those to whom they are issued, the statute declares that, except in the case of different letters, as above provided for, letters testamentary are, like letters of administration, and letters of guardianship, when granted by a court or officer hav- ing jurisdiction to grant them, " conclusive evidence of the au- thority of the persons to whom they are granted, until the de- cree granting them is reversed upon appeal, or the letters are revoked." ^ 3 Co. Civ. Proc, § 2592. Crozier v. Cornell Steamboat Co., 27 4 See ante, § 247 et seq. Hun, 215; Brown v. Landon, 30 id. 57 ; 5 Co. Civ. Proe., § 2591; Abbott v. Sullivan v. Tioga E. R. Co., 7 St. Bep. Curran, 98 N. Y. 665 : Lombard v. 627 ; 12 Civ. Proe. Eep. 301. Columbia Steam Nav. Co., 84 id. 48; CHAPTER X. ADMINISTRATION WITH THE WILL ANNEXED. § 326. In general In the preceding chapter, we considered the case of a decedent leaving a will which authorizes the selection of, or nominates, as executor, a person who is competent and willing to serve, and does serve, in that capacity. But cases may arise where the will fails to appoint an executor, or where the appointment fails to take effect, or where the executorship becomes vacant before the personal estate of the testator is com- pletely administered. The administration of the estate^ under the directions of the will, is not affected by the omission to appoint an executor, or by the failure of the appointment to take effect,^ or by the office of executor becoming vacant.^ In such a case, however, it becomes necessary for the surrogate to appoint a suitable person to perform the will of the testator, 30 far as it properly can be done by one to whom he has not confided the trust. The person so appointed receives letters of administration with the will annexed,^ and thereupon proceeds 1 In each case the deceased, in the the successor in interest of the surviv- language of the books, is said to die ing executor; and has, subject to the quasi intestatus (Wms. on Exrs. 461), direction of the court, the like power but that phrase does not imply that as an administrator with the will an- the testator did not make a valid dis- nexed. (Co. Civ. Proc, § 1869, as position of all his property. The tech- amended 1895 ; revising L. 1863, nical distinction between a will and c. 466, § 1.) a testament was that the appointment The original act was held not to su- of an executor was essential to the persede the power or duty of the sur- latter, and it was anciently even held rogate to appoint an administrator that, without the appointment of an with the will annexed, even after the executor, a will was void. (lb.) appointment, by the Supreme Court, 2 Where the estate of a decedent has of a receiver of the same estate. (De been brought under the jurisdiction of Pau's Estate, 1 Tuck. 290.) the Supreme Court, by an action for s Where an administrator of the es- partition or distribution, or for the tate of an intestate dies before he has construction or establishment of a administered all the effects, the grant will, the court may, upon the death of of letters is entitled " administration the sole surviving executor, appoint a dc honis non," — i. e., administration receiver of the estate, pending the ac- of the goods, etc., left unadministered. tion, upon such terms and conditions, This phrase should not be used with and upon such notice to the parties respect to a person appointed to suc- interested, as the court directs, and ceed either an executor, or an admin- upon such security, if any, as to the istrator with the will annexed, as court seems proper. For the purpose the latter term is the proper appella- of carrying into effect the judgment tion of such an officer. (See Co. Civ. and orders of the court, in relation to Proc, § 2643.) the estate, a receiver so appointed is [369] § 327. Administeatioit With the Will Annexed. 2Y0 to administer the personal estate. Administration with the will annexed is frequently distinguished, in the statutes, from an ordinary administration in ease of intestacy; but the term " ad- ministrator," when used in the statute, unless a different mean- ing is expressly or impliedly indicated, is to be considered as in- cluding an administrator with the will annexed, especially where this construction is necessary to secure the control of the surro- gate, and the just and proper responsibility of the administrator.* For this purpose, he has the ordinary powers of an administrator appointed in a case of intestacy, so far as they do not conflict with the directions of the will; but he does not, by his appoint- ment, acquire, in every instance, the rights and powers conferred by the will on the person who is nominated, or whose selection is authorized thereby.^ § 327. When letters are issuable — The cases in which the sur- rogate has power to appoint an administrator with the will an- nexed are specified in the Code. He is authorized, and, upon proper application, is required, to make such an appointment, i£ no person is named as executor in the will, or selected by virtue of a power contained therein; or if, at any time, by reason of death,^ incompetency adjudged by the surrogate,^ express renun- ciation,* or renunciation implied from failure to qualify, or to 4 Ex p. Brown, 2 Bradf. 22. executor (to whom letters had not yet 5 The principal distinction is in re- been issued ) had become insane. This gard to his power over real property, " incompetency " must be first " ad- wbieh is explained post, § 335. judged by the surrogate," before he 8 Formerly the executor of a de- will entertain the application. In. ceased executor succeeded to his du- such case the appropriate practice is ties, but the rule was changed by stat- that provided by Co. Civ. Proe., § 2642 ute (2 E. S. 71, § 17), and although (§ 298, ante). (Matter of Van Pelt, the section cited was repealed in 1880 N. Y. Law J., Mar. 28, 1890.) (L. 1880, c. 245, § 1, subd. 2), without 8 For the mode of express renuncia- a formal substitute, its policy is eon- tion, see Co. Civ. Proc, § 2639; ante, tinned by Co. Civ. Proc, § 2643. " The § 296. Where a sister of the testator designation in the will of the deceased renounced her prior right to letters on executrix of two of the respondents as the application of the son of testator's her successors in office would not, even brother, but intervened in a proceed- if her will was admitted to probate, ing to revoke letters issued to him, — be operative, as the power to make it Held, .that the renunciation not being appertained solely to the office of the general could be retracted, and that executrix, and she, having ceased to be. she was entitled to letters. (Matter of such previously to her death, her right Haug, 29 Misc. 36. ) But a retraction to select her successor then termi- of the renunciation cannot be made nated." (Per Ransom, S., in Matter without permission of the surrogate, of Pinckney, N. Y. Law J., Oct. 23, (Matter of Clute, 37 Misc. 710.) In 1890.) that ease the sole legatee, executing 7 It is not a ground for application the renunciation, had assigned his en- for letters c. t. a. that the nominated tire interest in the estate. 271 Administration With the Will Annexed. § 328. expressly renounce,^ or revocation of letters/" there is no execu- tor, or administrator with the will annexed, qualified to act.^^ § 328. Who are entitled tO' letters. — Under the Kevised Stat- utes there was room for doubt, and a conflict of authority existed, as to who were entitled to letters of administration with the will annexed, owing chiefly to the fact that a rule was deducible only from several distinct provisions, whose relations to each other were obscure. ^^ These statutes also excluded heirs and devisees from the list of persons capable of receiving such letters, and made no provision for the contingency of a refusal to accept the letters, on the part of all the qualified persons entitled; while the reference, in one of the sections cited, to the " regulations and restrictions " applicable to " letters of administration in case of intestacy " rendered it necessary to examine and apply the statutory rules upon that subject.-'^ These regulations and re- strictions are no longer applicable in granting letters of adminis- tration with the will annexed, e. g., the preference given to males over females.-** These defects are remedied, and the omissions supplied, by the C'ode of Civil Procedure, which establishes a uniform and explicit rule for all cases, and directs^* that when letters of administration with the will annexed are granted, they must be issued to the following persons, in the order of priority indicated: 1. To one or more of the residuary legatees, who are qualified to act as administrators.-'^ If any one of such legatees 9 See, as to implied renunciation, Co. Redf. 254; Ex p. Brown, 2 Bradf. 22; Civ. Proe., § 2642; ante, § 298. Bradley v. Bradley, 3 Eedf. 512; Spin- 10 For the various grounds and ning's Estate, 1 Tuck. 78. modes of revocation of letters testa- 13 2 E. S. 71, § 14. mentary, see c. XIV, post. 14 Matter of Wood, 27 Abb. N. C. 11 Co. Civ. Proc, § 2643. The death 329 ; 17 N. Y. Supp. 354. may occur before letters testamentary IB Co. Civ. Proc, § 2643, as amended issue, or afterward, and before the 1901 (L. 1901, c. 141). estate is completely administered. The 18 Matter of Manley, 12 Misc. 472 ; incompetency of the executor may pre- 34 N. Y. Supp. 258. The residuary vent the issue of such letters, or oc- legatee, it is said, is the testator's casion their revocation. See Co. Civ. choice; he is the next person in his Proc, §§ 2636, 2685. The revocation election to the executor. (Atkinson v. of letters may follow the acceptance Barnard, 2 Phillim. 318.) A residuary of the executor's resignation (Id., legatee is entitled, although there is § 2639), or be for cause. But in case no present prospect of any residue of the resignation of an executor and (Wms. on Exrs. 464), and though he trustee, where the amount of the re- is only residuary legatee in trust, siduary estate has been fixed for the (lb.) The English rule is that where purposes of the trust, an administra- a residuary legatee survives the testa- tor c. t. a. should not be appointed, tor, and has a beneficial interest, his (Matter of Curtiss, 15 Misc. S45; 37 representative has the same right to N. Y. Supp. 586.) letters as the residuary legatee him- 122 E. S. 71, §§ 14, 17; id. 75, § 29; self, in preference to next of kin. (Id. id. 78, § 45. See Matter of Ward, 1 465.) But this is not the rule in this § 328. Al>MIlTISTEATIOIf WiTH THE WlLL ANNEXED. 272 who would otherwise be so entitled is a minor, administration shall be granted to his guardian, if competent. 2. If there is no such residuary legatee, or guardian, or none who will accept, then to one or more of the principal or specified legatees so qualified. -"^ If any one of such legatees who would be otherwise so entitled is a minor, administration shall be granted to his guardian, if competent. 3. If there is no such legatee, or guard- ian, 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.^^ 4. If there is no qualified person, entitled under the foregoing subdivisions, who will accept, then to one or more of the creditors who are so qualified ; except that, in the counties of New York and Kings, the public administrator has State. See Kircheis v. Scheig, .S Redf. of all legatees who are neither specific 277 ; Matter of Thompson, 28 How. Pr. nor residuary. (Quintard v. Morgan, 581. The executor of a sole legatee 4 Dem. 168.) A general legatee is has, however, a right to receive letters entitled to preference in the issue of as against the son of a brother of the letters, over a trust company, guard- testator who died after the testator, ian of an infant legatee who is the since the son is not entitled in his own only next of kin of the testator, right to share in the unbequeathed (Matter of Milhau, 28 Misc. 366; 59 residue of the estate. (Matter of N. Y. Supp. 910.) Haug, 29 Misc. 36.) Where a testa- For a case of an application by one tor's residuary estate is held in trust, claiming under a void devise, see Mat- the beneficiary of the trust is entitled ter of Owens, 24 Civ. Proc. Rep. 256; to letters in preference to the trustee. 33 N. Y. Supp. 422. (Matter of Roux, 5 Dem. 523. ) See 18 Upon the death of a sole executor, Matter of Drovme, 18 St. Rep. 981. the residuary legatee is first entitled Even before the amendment of 1901 to letters, as against the widow of the the right of the guardian of an infant decedent, in like manner as if the ex- residuary legatee to preference in ecutor has renounced or neglected to granting letters, was sustained. (Mat- qualify. (Bradley v. Bradley, 3 Redf. ter of Lasak, 30 St. Rep. 356; 8 N. Y. 512.) Supp. 740.) And see Matter of Tyler, 19 Wliere there were neither residu- 19 St. Rep. 897; Blanck v. Morrison, ary, principal, nor specific legatees of 4 Dem. 297. a testatrix, who could receive letters A person not mentioned by name in testamentary and accept administra- a will, but who is entitled to take un- tion with the will annexed, and sisters der it as " heir " and " issue " of a of the half blood, who were not benefi- person named as legatee, is a " princi- claries under the will, were the only pal or specific legatee," and is equally next of kin, — Held, that the issue of entitled to apply for letters of admin- letters to one of them was proper, and istration with the will annexed, — as that they could not be revoked on the a person whom the will designated by petition of one who claimed as the name as a legatee. (Matter of Wood, principal beneficiary under the will of 27 Abb. N. C. 329. ) the sole legatee of the testatrix. (Kir- 17 In England, the next of kin are cheis v. Scheig, 3 Redf. 277.) entitled, next after a residuary lega- A brother of the testator is to bo tee, to letters with the will annexed; preferred to the administrator c. t. a. and if the next of kin decline, letters of the sole legatee, who was named will issue to a legatee or a creditor, sole executor and who died after tes- but on notice to the next of kin. The tator and before probate. (Matter of word "principal" in this clause has Brown, 33 St. Rep. 582; 11 N. Y. the force and effect of the word "gen- Supp. 785.) eral," and is meant to be descriptive 273 Administration With the Will Annexed. §§ 329, 330. preference, after the next of kin, over creditors and all other persons.^ 5. If there is no qualified creditor who will accept, then to any proper person designated by the surrogate.^^ § 329. Priority among applicants of the same class. — Where a number of applicants for letters of administration with the will annexed all come within the one subdivision of the section re- lating to priorities of right to letters, the surrogate in his dis- cretion will select from their number, having regard to the nature of their respective interests. ^^ The statute makes no discrim- ination between males and females, although, it seems, the court would, other things being equal, prefer a male, in the case of opposing claims.^^ The next of kin are entitled, in the order of priority in which they are entitled to administration in cases of intestacy, thus: (1) to the children, (2) to the father, (3) to the brothers, (4) to the sisters, (5) to the grandchildren, (6) to any other of the next of kin who would be entitled to share in the distribution. As between creditors, the first one applying has priority. It is reasonable to suppose that in a case where the surrogate is called upon to designate " a proper person," under the above fifth subdivision, he would be likely to designate the public administrator or the county treasurer, as the case may be. In selecting an administrator with the will annexed from among several persons having equal rights, the surrogate may consider the testator's preference, expressed in his lifetime, as to one of the persons applying having the management of his esta,te.^* § 330. Application for letters generally The application must, of course, be made to the surrogate of the proper county,- — ■ that is, the surrogate who, by the provisions of the Code, has juris- diction over the estate of the decedent.^^ Ordinarily the appli- 20 This last clause was added in (IST. S. ) 17; Estate of Morgan, 8 Civ. 1881, thus restoring the old statute. Proc. Eep. 77 ; Hulse v. Reeves, 3 Dem. By a rule of the English Probate 486. Court, no person wno renounces pro- 23 Matter of Wood, 17 N. Y. Supp. bate of a will is to be allowed to take .354 ; 27 Abb. N. C. 329. representation in another character — 24 Matter of Powell, 5 Dem. 281; such as letters of administration witli citing Quintard v. Morgan, 4 Dem. the will annexed. This rule was fol- 168 ; Underbill v. Dennis, 9 Paige, 203 ; lowed in Matter of Suarez, 3 Dem. Cozine v. Horn, 1 Bradf. 143. 164. 25 See, on this point, Co. Civ. Proc, 21 In Matter of Clute (37 Misc. 710), § 2476. Hence it must appear that the assignee of a sole legatee was ap- decedent was an inhabitant of the pointed, the next of kin consenting, county at, or immediately before, his As to annointment of banking cor- death. Letters will not be granted on porations, see L. 1900, c. 552. the ground that testator died within 22 Matter of Beakes, 5 Dem. 128, cit- the county, having assets therein, it ing Cottle v. Vanderhevden, 11 Abb. not appearing that he was a noninhab- 18 § 331. Administkation With the Will Annexed. 274 cant ■will he the person claiming to be entitled to the letters, and one of the few sections of the Code especially applicable to such letters was evidently framed upon that presiunption.^® Pro- vision has now been made, however, for an application by a person " having a lien upon any real property upon which the decedent's estate has a hen." ^^ Of course, in such case, the petitioner should apply for the issue of letters to some person having a right thereto, as provided by the statute. § 331. Where the applicant has not a prior right to letters. — In that event he should apply, as in the case of a petition for letters of administration in intestacy, for letters to issue " either to him or to such othfer person or persons having a prior right, as may be entitled thereto, or in the alternative," at his election,^* and for a citation to those having a prior right, to show cause against such appointment. The application must be made by petition, unless a written renunciation of every person having such a prior right is filed with the surrogate, and the execution thereof is proved to his satisfaction;^ and a citation to show cause must be addressed to, and served upon, those having such right, who have not renounced.^" The proceedings thereupon are the same as upon application for administration upon an intestate's estate. In every other case, the surrogate must issue the letters, upon the application of the creditor or person interested, or a itant of the State. (Van Giesen v. whether the Statute of Limitations Bridgford, 18 Hun, 73.) See also has barred the remedy to recover the this case on appeal, 83 N. Y. 348, alleged unadministered assets, or where it was held that where there are whether the proposed administrator no assets, or the presumption arises with the will annexed would have any from lapse of time that there are no legal or equitable cause of action for assets of the testator in existence, the benefit of the estate; such ques- which can be identified and reached by tions being properly raised, if at all, the administrator, and there is no only in subsequent proceedings. (lb.) claim in respect to them which can be 26 Co. Civ. Proc, § 2644. enforced, and no other reason appears, 27 Co. Civ. Proc, § 2643, as amended the granting of letters cannot be 1895 (L. 1895, c. 734). claimed as a matter of right. Where 28 Popham v. Spencer, 4 Redf. 399. the application is made upon the In that case, it was also held that a ground that the office of executor, etc., petition by an executrix of an execu- is vacant, leaving assets of the testa- tor for an accounting, under section tor unadministered, prima facie evi- 2606 of the Code, could not include an dence that there are such assets is application under section 2693, for the suificient; and a general allegation appointment of an administrator with that the executor named in the will the will annexed, in the place of peti- died leaving certain assets unadminis- tioner's testator. The proceedings in tered, followed by a statement of the each case are separate and distinct, value thereof, confers jurisdiction. 29 Co. Civ. Proc, § 2644. See Batch- (Pumpelly v. Tinkham, 23 Barb. 321.) elor v. Batchelor, 1 Dem. 209; 64 How. The surrogate cannot, on such an Pr. 350. application, determine the question 30 Batchelor v. Batchelor, supra. 275 Administration With the Will Annexed. §§ 332, 333. person having a lien upon any real property upon which the de- cedent's estate has a lien, and upon such notice to the other creditors and persons interested in the estate as the surrogate deems proper. ^^ It is not customary to require notice, where there are no persons entitled to priority of appointment; e. g., where there are two or more of a class equally entitled to letters, each is at liberty to apply without notice to the other.^^ A competent person, although not entitled to letters, may be joined with the person so entitled, upon the latter's consent, in the administration with the will annexed.^^ § 332. Oath and bond The official oath or affirmation of an administrator with the will annexed must be filed with the surro- gate before letters are issued to him. It is required to be to the same effect, and may be taken before the same officers, as that of an executor, or an administrator in case of intestacy.^* His official bond is the same, and is governed by like provisions as that required by law of an administrator upon the estate of an intestate ; except that in fixing the penalty, the surrogate must take into consideration the value of the real property, or of the proceeds thereof, which may come to the hands of the adminis- trator, by virtue of any provision contained in the will.^^ § 333. Letters upon proof of foreign will The term " foreign will " is manifestly ambiguous. Certain wills which may with propriety be so designated are, as has been seen, admissible to probate in a Surrogate's Court of this State ; and when that course is pursued, the issue of letters thereupon is governed by the 31 Co. Civ. Proc, i 2643, as amended 35 Co. Civ. Proc, §, 2645. It is not 1895. In the case of the renunciation essential to the validity of the bond or death of a person named in tne will that his special character should be propounded for probate, the practice recited therein; a bond in the ordinary in New York county is to proceed with form required of general administra- the proof of the will to a decree. If tors by the statute is sufficient. (Ca- admitted to probate, a new proceeding soni v. Jerome, 58 N. Y. 315.) As to must then be instituted for letters the amount of penalty required, see with the will annexed. Sutton v. Weeks, 5 Redf. 353; 1 Civ. 32 Matter of Wood, 17 X. Y. Supp. Proc. Eep. 164; Matter of Nesmith, 6 354; 27 Abb. N. C. 329. The appli- Dem. 333. Section 2645, enacted in cant must bring himself within the 1880, and section 2667, which was en- terms of section 2643, prescribing the acted in the same year, and prescribes order of priority among the persons the requisites of the bond of an ad- entitled to such letters. (Matter of ministrator in intestacy, which was- Allen, 2 Dem. 203.) See Matter of amended in 1882, by adding a provi- Drowne, 18 St. Rep. 981. sion that, "in cases where all the 33 Quintard v. Morgan, 4 Dem. 168 : next of kin to the intestate consent Matter of Moehring, 24 Misc. 418; 53 thereto," the penalty of the bond may N. Y. Supp. 730. . be limited in a manner specified, are 34 Co. Civ. Proc, § 2594. to be construed together, as if enacted § 334. Administration With the Will Annexed. 276 same rules as in case of domestic wills.** A second class of foreign wills, relating to personal property, can be established in this State only by means of a judgment rendered in a civil action, whereupon letters testamentary or of administration with the will annexed may, under specified conditions, be issued from a Surrogate's Court of this State, in like manner and with like effect as upon a will duly proved in his court. *^ In respect to a third description of foreign wills, also relating to personal prop- erty, which includes all of the second class, and certain of the first class, above mentioned, the statute contemplates the issue of letters from a Surrogate's Court of this State, upon proof of the foreign probate, -without probate or establishment here. In such cases, before the matter was regulated by statute, it was the usage, when letters were granted, to grant them to the attorney in fact of the foreign executor, if he applied and produced a power of attorney authorizing him to receive such letters on behalf of the executor. If no sufiicient application, however, was made by such an attorney, the court would grant administration, under the statute, to the legatees or to other persons entitled.*® But the subject is now fully provided for by the Code, as noticed in a previous chapter, where ancillary letters of administration with the will annexed are discussed in connection with ancillary letters testamentary.*^ § 334. Duties and powers under letters In regard to the gen- eral administration of the personalty, an administrator with the ■^■\T.ll annexed has the same powers as an ordinary administrator in case of intestacy, except that he is to be guided by the will of the testator. He is not confined to the property disposed of by the Avill, but it is his duty to collect and administer the entire personal estate within his jurisdiction.*" Where he is appointed to succeed to an executor who has received letters, but has died or has been removed, he succeeds, in general, to the powers and to the duties of his predecessor; and if a decree has previously been obtained against his predecessor for a payment due from simultaneously; — Held, therefore, that 2667 referred to is now section 2664. an administrator with the will an- See post, c. XV. nexed may avail himself of the provi- 36 See Co. Civ. Proc, § 2611; and sions contained in the amendment of § 140, ante. 1882, upon obtaining the consent of 37 Co. Civ. Proc, §§ 1861, 1863. See the next of kin, although they may § 134, ante. have no interest in the decedent's es- 38 Texidor's Estate, 2 Bradf. 105. tate. The existing statutory rule on And see 2 R. S. 75, § 31, now repealed. this subject is criticised in Curtis v. 39 See ante, § 312. ■\Villiams, 3 Dem. 63. The section io Sullivan v. Fosdick, 10 Hun, 174. 277 Administration With the Will Annexed. § 335. the estate, the administrator with the will annexed should satisfy the decree by payment, and the surrogate may enforce this duty.*^ He may enforce, also, the obligations of the deceased, and of his removed predecessor to the estate; and for this purpose may compel an accounting;*^ and may maintain an action for an accounting against such predecessor, or against his personal repre- sentative after his death, for assets left unadministered by such predecessor.** He may continue an action for a specific perform- ance of a contract made by the executor.** He may petition for a judicial settlement of his account and a distribution of the estate within a year from the date of his letters.*^ § 335. Performing the will — The statute provides, that " where letters of administration with the will annexed are granted, the will of the deceased shall be observed and performed ; and the administrators with such will have the rights and powers, and are subject to the same duties, as if they had been named executors in the will." *^ This provision has been the subject of much controversy. There is eminent authority for regarding it as only declaratory of the common law, and applicable neither to 41 Bowers v. Emerson, 14 Barb. 652. *2 Clapp V. Meserole, 1 Abb. Ct. App. Dee. 362. 43 Matter of Eiohmond, 63 App. Div. 488; Walton v. Walton, 4 Abb. Ct. App. Dec. 512. An administrator with the will annexed, appointed in this State, cannot maintain an action against the agent of the deceased ex- ecutor, to compel him to account for money collected as rents ot lands in another State, nor for money collected as rents of lands in this State, in re- spect of which there is a devise in trust or power of sale to such de- ceased executor. Nor is the agent of the executor liable to such administra- tor in an ordinary action of account, at law, for proceeds of personal prop- erty belonging to the estate in his hands. The agent is liable to the ex- ecutor and his personal representa- tives; the executor is liable to the es- tate, and the remedy of the adminis- trator at law is against his personal representatives. If he has a remedy against the agent, it is in equity. (Smith v. Edmonds, 10 N. Y. Leg. Obs. 185.) The administrator, and not the legatees under the will, is the proper person to recover from the representa- tives ot the deceased executor the un- administered assets. (Squire v. Bug- bee, 65 App. Div. 429.) An administrator is not entitled to recover assets from the personal rep- resentatives of the deceased executor and residuary legatee under the will of his decedent where the legacies given by such will are fully secured and it is not shown that there are unpaid creditors or unpaid expenses of ad- ministration. (Toch V. Toeh, 81 Hun, 410; 30 N. Y. Supp. 1003.) But where he has incurred expense, he is entitled upon an accounting by the representatives of the deceased ex- ecutor to have the balance of the es- tate paid over to him and an oppor- tunity to have his expenses allowed therefrom, although all claims except a single legacy represented by such balance have been naid. (Matter of McDougall, 141 N. Y. 21; 56 St. Eep. 579.) In an action against a removed ab- sconding executor the administrator is entitled to an attachment. (Van Camp V. Searle, 147 N. Y. 150.) 44 Farmers' Loan and Trust Co. v. Eno, 21 Abb. N. C. 219. 45 Matter of Burling, 5 Dem. 47. 46 Co. Civ. Proc, § 2613, as amended 1893, incorporating 2 E. S. 72, § 22. § 335. Admikistkation With the Will Annexed. 278 real property in any case, nor to discretionary powers, nor to gifts in trust, nor to powers inseparably connected therewith.*'^ It is well settled that devises to the executors, and discretionary powers, relating to real property at least, do not pass to the administrator with the will annexed.** The rule is stated to be, that " an administrator with the will annexed in all respects takes the powers of a renouncing or deceased executor, unless a per- sonal confidence, in the discretion of the person who is named as executor, is plainly expressed or to be implied. Where the power or trust appears to be annexed to the office of executor, it may be executed by an administrator with the will annexed." *^ Thus a power to an executor to sell land and personalty in trust for the payment of debts and legacies, is so connected with the office of executor that it can be executed after his death only by an administrator with will annexed, and not by a new trustee appointed by the court.^" But a devise to the executor named, in trust, does "not annex the trust duty to the office of executor, but to the person; and hence an administrator with the will an- nexed does not succeed to any rights concerning the trust estate, unless in case it be ordered sold for the payment of the testator's debts.^^ Where, however, an administrator with the will annexed 47Dominiek v. Michael, 4 Sandf. commissions of a trustee. (Orphan 374; Conklin v. Egerton, 25 Wend. Asylum v. White, 6 Dem. 201.) 224. 60 Matter of Christie, 59 Hun, 153 ; *8Beekman V. Bonsor, 23 N. Y. 298; 36 St. Eep. 99; affd., 133 N. Y. afifg. 27 Barb. 260; Fay v. Taylor, 31 473. An administratrix with will an- Misc. 32; 63 N. Y. Supp. 572; Sim- nexed was held, under a peculiar will, mons V. Taylor, 19 App. Div. 499; 46 entitled to execute a power to sell N. Y. Supp. 730. Compare Roome v. lands given by will to executor, in Philips, 27 N. Y. 357, 363; De Peyster Hickey v. Peterson, 30 St. Eep. 155; V. Clendining, 8 Paige, 310; Gilchrist 9 N. Y. Supp. 917. A provision for V. Rea, 9 id. 72 ; Judson v. Gibbons, 5 investing a sum in trust for the Wend. 225. A discretionary power of benefit of testatrix's husband, during sale vested in executors cannot be exe- life, and on his death, principal to cuted by an administrator with the go to designated legatees, creates a will annexed. (Cooke v. Piatt, 98 N. trust which vests in an administrator Y. 35.) But otherwise, where no with the will annexed. (Matter of executor was named in the will. Post, 30 St. Rep. 217; 9 N. Y. Supp. (Matter of Kick, 11 St. Rep. 688.) 449.) See Squire v. Bugbee, 65 App. 49 Per Commissioner Reynolds, in Div. 429. Bain V. Matteson, 54 N. Y. 667 ; s. p., SlDunning v. Ocean Nat. Bank, 61 Merritt v. Merritt, 32 App. Div. 442; N. Y. 497. Hence he might accept and 161 N. Y. 634, citing Greenland v. execute the trust without proving the Waddell, 116 id. 234; Campbell v. will or taking out letters testament- Jennings, 22 Misc. 406 ; Carpenter v. ary. He becomes trustee, and is vested Bonner, 26 App. Div. 462. This doc- with the trust estate by virtue of the trine is substantially that of Chancel- will alone. (lb.) For a case where lor Walworth in De Peyster v. Clen- an administrator with the will an- dining, 8 Paige, 310. Compare Matter nexed was held to have power to sell of Clark, 5 Redf. 466; Kilburn v. See, and convey real estate, see Fish v. 1 Dem. 353. He is entitled to the Coster, 28 Hun, 64, and also Bingham v. Jones, 25 id. 6. ■279 Administration With the Will Annexed. § 336. assumes to act as trustee of the real property under tlie will, he may be held to account therefor as such trustee.®'* § 336. Liabilities — An administrator with the will annexed is liable upon his own contract, to the same extent as an ordinary administrator,*^ but he is not liable for any misapplication of funds by his predecessor.®* 52 Le Fort v. Delafleld, 3 Edw. 32. tor v. Lavery, 51 App. Div. 74; 64 53 An administrator with the will N. Y. Supp. 518, citing Ferrin v. My- annexed, who, in pursuance of the pro- rick, 41 N. Y. 315; Austin v. Munro, visions thereof, purchases a monument 47 id. 360; New v. Nieoll, 73 id. 127; for the tomb of the testator, is per- Wetmore v. Porter, 92 id. 76; Parker sonally liable to pay for the same, if v. Day, 155 id. 383.) the estate does not yield enough, above 54 Matter of Lamb, 10 Misc. 638; 32 the debts and expenses of administra- N. Y. Supp. 225. tion, to pay for the monument. (Hoe- CHAPTER XI. LETTERS OF ADMINISTRATION IN INTESTACY. TITLE FIRST. JUEISDICTION IN CASES OF INTESTACY. § 337. In general. — Where the administration of an estate — that is, the collection and preservation of the personal effects of a deceased person, and their final disposition according to law — is not conferred upon any particular person by the will of the deceased himself, or where such person, if appointed, is incapable of performing that function, the duty devolves upon the surrogate of appointing one who can. The last chapter was devoted to the consideration of the surrogate's power of appointment in cases where the will of a deceased failed to appoint, or where its ap- pointee was either incapacitated or ceased to act, for any cause. We now come to consider the subject of administration in cases of intestacy. § 338. Nature and extent of jurisdiction. — The word " intes- tate " signifies a person who dies without leaving a valid will; but where it is used with respect to particular property, it signifies a person who dies without effectually disposing of that property by will, whether he leaves a will or not.^ The jurisdiction of surro- gates was formerly more restricted in the matter of the admin- istration of intestates' estates thai), in matters of probate ; since jurisdiction to grant probate of a noninhabitant's will might be based upon the situation of real estate of the testator in the sur- rogate's county,^ whereas, to authorize the grant of administra- tion in a similar case, the existence of assets was indispensable.* But this difference has been substantially removed by the present Code. The Code of Civil Procedure consolidates certain of the former statutes specially relating to surrogates' jurisdiction to 1 Co. Civ. Proc, § 2514, subd. 1. 3 See HoUister v. Hollister, 10 How. 2 2 E. S. 220, § 1, subd. 1; L. 1837, Pr. 532; Roe v. Swezey, 10 Barb. 247; e. 460, § 1, subd. 5. Hart v. Coltrain, 19 Wend. 378. [380] 281 Letters of Administeatiobt in IisrTjiSTACY. § 338. take proof of wills, and to issue letters of administration in case of intestacy, respectively; and the resulting provisions have been discussed, in their application to the subject of probate, in the sixth chapter of this work, to which reference may be had for such remarks, concerning the phraseology ofj and the changes pre- sumed to be effected by, the Code, as are also pertinent to the subject of administration upon the estate of an intestate. It will be convenient to repeat the jurisdictional sections in this place, in order to examine them with special reference to the topics of this chapter. It is declared that the Surrogate's Court of each county has jurisdiction, exclusive of every other Surrogate's Court, to grant letters of administration upon the estate of an intestate, in either of the following cases : " 1. Where the de- cedent was, at the time of his death, a resident of that county, whether his death happened there or elsewhere. 2. Where the decedent, not being a resident of the State, died within that county, leaving personal property within the State, or leaving personal property which has, since his death, come into the State, and re- mains unadministered. 3. Where the decedent, not being a resi- dent of the State, died without the State, leaving personal prop- erty within that county,* and no other ; or leaving personal prop- erty which has, since his death, come into that county, and no other, and remains unadministered. 4. Where the decedent was not, at the time of his death, a resident of the State, and a pe- tition for probate of his will, or for a grant of letters of adminis- tration under subdivision second or third of this section, has not been filed in any Surrogate's Court ; but real property of the de- cedent, to which the will relates, or which is subject to disposition by a surrogate's order for the payment of debts or funeral ex- penses, is situated within that county and no other." ^ It may be stated generally, therefore, that the surrogate of the proper county may grant administration in all cases where the in- testate, at the time of his death, was domiciled in the State; and in either of the following cases where he was not so domi- ciled, viz.: (1) where he left personal property situated in the State, or coming into the State after his death, and remaining unadministered, and (2) where he left real property in the State, liable to be sold, etc., by order of a surrogate, for the payment of debts or funeral expenses. 4 It is, therefore, immaterial whether of Davis, N. Y. Law J., Jan. 28, decedent was or was not a resident, 1890.) provided he left assets here. (Matter 5 Co. Civ. Proe., § 2476. § 339. Lettees of Administeation in Isttestacy. 282 § 339. Exclusive and concurrent jurisdiction. — In determining which is the proper county, the first question is as to the resi- dence of the intestate at the time of his death. If he then resided in the State, the surrogate of the county of his decease has exclusive jurisdiction to entertain the application.® If he was not then a resident of the State, an analysis of the various possible cases, similar to that made in the chapter on probate, will indicate in what county the petition should be presented. The intestate may have left (1) personal property situated in, or coming into, the State as above mentioned, or (2) real prop- erty situated in the State, and liable to judicial sale, etc., as specified, or (3) both. 1. In the first class of cases, the place of death is material. If that occurred within the State, the surrogate of the county of the intestate's decease has exclusive jurisdiction. If the death occurred without the State, the application must be made in the county^ where property was left or into which it has since come. 2. Where the existence of real property of the nonresident intestate furnishes the sole basis of jurisdiction, the latter be- longs exclusively to the surrogate of the county where that prop- erty is situated, independently of the place of the owner's death. 3. Where real property of such an intestate exists in one county, and personal property in another, under the circumstances specified in the statute, the surrogate of the former county has jurisdiction, unless a petition, either for probate or for adminis- tration, has been filed in the latter; but, as was intimated in treat- ing of the subject of probate, we do not discover in the Code any rule forbidding an application to one surrogate, based on the existence of personalty, after the filing, in another Surro- gate's Court, of a petition for letters alleging the existence of real property. A race of diligence is thus apparently rendered possible. But no serious conflict is likely to occur, for, doubtless, the filing of a petition would be immediately followed by some act of the surrogate constituting an exercise of jurisdiction; and an- other section provides that " jurisdiction, once duly exercised over any matter, by a Surrogate's Court, excludes the subsequent 6 Matter of Taylor, 6 Dem. 158; 13 wise it would be a case of concurrent St. Rep. 176; James v. Adams, 22 jurisdiction, which is hereafter dis- How. Pr. 409. cussed. See Duffy's Estate, 3 Civ. 1 1t IS assumed for the present that Proc. Rep. 229. there is only one such county; other- 283 Lettebb of ADMiiXiSTitATiOJV IN Intestacy. § 340. exercise of jurisdiction by another Surrogate's Court, over the same matter, and all its incidents, except as otherwise specially prescribed by law." * Where the special proceeding has reached the stage of the issuing of letters, the case comes within an- other provision of the same section, to the effect that where letters of administration have been duly issued from a Surro- gate's Court having jurisdiction, all further proceedings to be taken in a Surrogate's Court, with respect to the same estate or matter, must be taken in the same court.® But besides a case of the equal claim of right of different surrogates to super- vise the administration of the estate of a nonresident intestate, by reason of the existence of real property in one county, and personal property in another, it may also happen that such an intestate may leave personal property located in, or afterward coming into, more than one county; and the decedent's realty may be situated in more than one county. "With respect to such contingencies, it is provided that where personal property of the decedent is within, or comes into, two or more counties, under this circumstances specified in subdivision third of the section above cited, ^" or real property of the decedent is situated in two or more counties, under the circumstances specified in sub- livision fourth of that section, the Surrogates' Courts of those counties have concurrent jurisdiction, exclusive of every other Surrogate's Court, to grant letters of administration. But where a petition for probate of a will, or for letters of administration, has been duly filed in either of the courts so possessing eon- current jurisdiction, the jurisdiction of that court excludes that of the other. ■'^ § 340. Personal property and assets defined. — The term " per- sonal property," in the present statute, replaces the word " assets," occurring in the, original jurisdictional provisions, in order to correspond to a -definition, contained in another section of the Code,'^ confining the latter word to such property as is applicable to the payment of debts. The rule as to what is to be deemed the locality of certain species of intangible per- sonal property, for the purpose of conferring jurisdiction in cases of intestacy, is the same as in matters of probate.^^ 8 Co. Civ. Proc, § 2475. And see 12 Co. Civ. Proc, § 2514, subd. 2. Id., § 2516. The proceeds of a partition sale are 9 Co. Civ. Proc., § 2475. not "assets." (Lyneh's Estate, 19 10 See Co. Civ. Proc., § 2476. Daily Reg., No. 108.) 11 Co. Civ. Proc, § 2477. 13 gee § 144, ante. §§ 341, 342. Letters of Administeation in Intestacy. 284 § 341. Residence defined — The term " resident," in the fore- going statutory provisions, like the word " inhabitant," in the former statute,-'* is believed to refer to the place of permanent residence,^^ i. e., the domicile — a word not occurring in the Code of Civil Procedure. The members of certain tribes of Indians, however, e. g., the Senecas and others, although they may be said to be domiciled within the State, being by statute^® not amenable to actions on contract in the State courts, are, as a consequence of this freedom of their property from the con- trol of our courts, not subject, as intestates, to the jurisdiction of the surrogate. The disposition of such a deceased Indian's personal estate is regulated by the customs of the tribe to which he belongs, and a distribution according to that custom conveys a good title. ^'^ MTiere the intestate was an infant, proof of its father's residence in the surrogate's county is sufficient prima facie evidence of domicile to give the surrogate jurisdiction.-'* § 342. Jurisdiction, when acquired. — In the matter of granting administration in intestacy, as in other special proceedings, " the existence of the jurisdictional facts prescribed by statute " is made a condition of the acquirement of jurisdiction by a Surro- gate's Court.-'^ The facts of death and intestacy, in all cases, and those of the place of death, place of residence and existence l*Isham V. Gibbons, 1 Bradf. 84. and to educate her son. They so- ls See § 143o, ante. journed at different places in Europe, 16 L. 1813, c. 92, § 2. the mother sometimes living apart 17 Dole V. Irish, 2 Barb. 639. from her son while he -was away at 18 Kennedy v. Ryall, 67 N. Y. 380; school. The mother derived her in- 40 N. Y. Supr. Ct. 347. In that ease, come from a house and lot in the city it appeared that intestate's father of New York, which had been settled came to the city of New York as an on her by her husband. The mother emigrant, and resided there for seven stated to her brother-in-la-sv, a banker months, when he was joined by his of New York, during several visits wife and children, except one, the in- made by him to Europe, that she in- testate, an infant, who died on the tended to send her son, when he was voyage ; • and he and his family con- properly educated, to him, to enter tinuously resided in that city for five and continue in his employ; and in a years. Held, that the intestate was letter addressed by the mother to her an inhabitant of New York. In Von brother-in-law, written shortly before Hoffman v. Ward (4 Redf. 244), it her death, she bequeathed her son to was held that the rule, that an in- him, stating that she left him with- fant's domicile is that of his father, out support, to his guidance and pro- is not overcome by the mere separa- tection. The son, at the time of his tion of the parents (there being no death, was above twenty-one years old. legal dissolution of the marriage) , The father continued to reside in the and the departure of the mother, -with State of New York. Held, that the the infant, from the country in which evidence did not establish an intention the father resides. In that case, while on the part of decedent to adopt a decedent was a minor, his parents foreign domicile. separated, and the mother went abroad 19 Co. Civ. Proc, § 2474. with decedent, for economy of living 285 Letters of Administeation in Intestacy. § 343. of property of the decedent, in some cases, are jurisdictional in their character. By the rules of the common law, however, the fact of death, as a test or basis of the jurisdiction, was assigned a superior rank to that of the other facts enumerated. The general subject-matter of the surrogate's jurisdiction being to grant administration upon the estate of deceased persons, if the person upon whose estate letters were issued was actually dead, an error as to inhabitancy or intestacy only rendered the surrogate's decision voidable and liable to be reversed or re- voked; while, if he was alive, it was null and void and could be collaterally impeached.^" "Death" means actual death; civil death, as where a person has been convicted of murder in the second degree and sentenced to the State prison for life, and is in prison under the sentence, does not give the Surrogate's Court jurisdiction to grant letters of administration upon his estate.^'' As an application for letters of administration rests upon in- testacy, where the surrogate finds that there was a will, he will dismiss the proceeding ;^^ his jurisdiction is terminated, so as to permit an application in another county, claimed to be the resi- dence of the testator, for the probate of the will.^* ARTICLE SECOISTD. WHO ARE ENTITLED TO LETTERS. § 343. Order of preference among relatives. — The general intent of the statute which prescribes the order of priority among the relatives of an intestate entitled to administer his personal prop- erty is to secure the right to those who, in other respects being 20 See E^derigas v. East Riv. Sav. is disposed of, notwithstanding the de- Inst., 76 N. Y. 316. elared purpose of the next of kin not 21 Matter of Zeph, 50 Hun, 523; 20 to offer it for probate. (Matter of St. Rep. 382. See Avery v. Everett, Taggart, 40 St. Rep. 368; 16 N. Y. 36 Hun, 6; 110 N. Y. 317. As to pre- Supp. 514.) In such ease the creditor sumptions of death from prolonged can bring proceedings for the probate absence, etc., see § 186, ante. of the will, under Co. Civ. Proc, 22 The surrogate has no power to § 2614, in order to determine its appoint an administrator to dispose of validity. ( lb. ) But see Matter of the undistributed residuum of an Cameron, 47 App. Div. 120; 62 N. estate not disposed of by the will, the Y. Supp. 187; aflfd., 166 N. Y. 61o! executor under the will having abso- In that case, upon an application lute power. (Matter of Haughian, 37 for the issue of letters of admin- Misc. 457; 75 N. Y. Supp. 932.) istration upon the estate of a de- 23 Matter of Gould, 30 St. Rep. 949 ; cedent, as intestate, it was sought 9 N. Y. Supp. 603. Where it is shown to prove the existence of a will, with- that decedent left an instrument pur- out offering it for probate here, by porting to be a will, letters of admin- the production of an exemplified copy istration cannot be granted to a cred- of the decree of a court of the State itor, until the question of its validity of Illinois, where the executor resided § 343. Letters of Administeation in Intestacy. 286 proper persons, have the greatest interest in the distribution of the personal estate, without reference to their interests in the real property, and to those directly interested, as distinguished from strangers.^* The statute declares that " administration in case of intestacy must be granted to the relatives of the de- ceased entitled to succeed to his personal property, who will accept the same in the following order: (1) To the surviving husband or wife. (2) To the children. (3) To the father. (4) To the mother. (5) To the brother. (6) To the sisters. (7) To the grandchildren. (8) To any other next of kin entitled to share in the distribution of the estate." ^ Although the statute provides that administration shall be granted to the relatives of the deceased, " entitled to succeed to his personal estate," this does not change the order of prefer- ence .subsequently laid down in detail; e. g., if the only relatives be father and brother, and the father renounce, the brother is entitled to administration, in preference to a creditor, or the public administrator, although the father would be entitled to the whole personal estate.^® But a relative who would not, under any circumstances, be entitled to a distributive share in dece- dent's estate would not be entitled to letters.^ A relative who and assets existed, with photographic " This section shall not be construed copies of the original instruments and to authorize the granting of letters to a transcript of testimony relating to any relative not entitled to succeed to the execution of the will and codicil the personal estate of the deceased, as taken here under a commission from next of kin, at the time of his de- the Illinois court, and evidence that cease;" thus superseding the last- the originals were on file in its office named decision, and adopting the con- from which the statute prohibited struction given to the statute in Pub- their removal. — Held, that while the lie Adm'r v. Peters. But by L. 1867, striking out of the copies and the evi- c. 782, the words so added were ex- dence of their authenticity was erro- punged. So that now, the right to neous, an adjudication of intestacy letters of any person of the blood of ■ should be sustained, since the admis- the intestate, not disqualified, is supe- sion of the evidence would not have rior to that of the public administra- changed the finding, the evidence not tor. (Butler v. Perrott, 1 Dem. 9.) satisfying the surrogate of the genu- 27 Thus, where the intestate was ineness of the original instruments, or illegitimate, and unmarried, and died the validity of their execution under domiciled in a country by the law of the laws of New York, where the will which he could have no legal kindred, was executed. except lineal descendants, a lawful son 24 Sweezey v. Willis, 1 Bradf. 495. of the mother of the intestate has no 26 Co. Civ. Proc., § 2660, as amended right to a distributive share in the 1893; adopting 2 R. S. 74, § 27, as estate of the decedent, and conse- amended L. 1867, u. 782, § 6. quently is not entitled to letters of 26Lathrop v. Smith, 24 N. Y. 417; administration here. (Ferrie v. Pub- overruling Public Adm'r v. Peter^ 1 lie Adm'r, 3 Bradf. 151, 249.) See Pub- Bradf. 100. After the decision in lie Adm'r v. Hughes, 1 id. 125 ; Peters Lathrop v. Smith {supra), in June, v. Public Adm'r, id. 200. Where an 1862, the section (2 R. S. 74, § 27) unmarried woman, having a living was amended by L. 1863, c. 362, § 3, child, marries a man who is not the by adding thereto the following: child's father, the child has no right 287 Letters of Administration in Intestacy. § 344. is entitled to a share in Ms own right is preferred to one who takes by representation. Thus where the intestate leaves no wife or descendant, parent, sister, or brother, but leaves an aunt and the children of deceased uncles and aunts, the aunt is solely entitled to letters of administration, and no citation need issue to the cousins.^ On a contest for preference between relatives whose priority is not designated by the statute, the single point to be ascertained is, who will be entitled to the surplus of what is confessedly personal estate.^* The withholding of letters of administration from one who, if not by some cause incapacitated, would be entitled in priority, under the statute, is never justi- fiable, except in cases where his disqualification is declared by the statute itself.^" Hence the mere fact of nonresidence does not incapacitate; a nonresident who has priority of right over a resident relative is entitled to letters.^^ The fact that the claimant is a nearer relative of the intestate than any other person within the United States, does not entitle him to admin- ister, if there are elsewhere next of kin of a prior class. If the next of kin, entitled under the statute, is not here, or is not legally competent, the public administrator, or creditors, are en- titled.^^ If a person entitled is a minor, administration must be granted to his guardian, if competent, in preference to cred- itors or other persons.^* § 344. Preference among others than relatives. — If no relative, or guardian of a minor relative, will accept the same, the letters must be granted to an executor or administrator of a sole legatee named in a will, whereby the whole estate is devised to such de- ceased sole legatee,** otherwise to the creditors of the deceased; to administer upon the man's estate Matter of Williams, 44 Hun, 67 ; affd., upon his death intestate; that right 111 N. Y. 680. Hence, a son who re- passes to his next of kin, because sides in another State has, in spite of the marriage of the man and woman that fact, a priority of right over a cannot legitimatize the child of the daughter resident here. (Lussen v. woman by another man. (Matter of Timmerman, 4 Dem. 250.) See Weed Pfarr, 38 Misc. 223.) The father of v. Waterbury, 5 Redf. 114. an intestate whose death was fol- 32 Public Adm'r v. Watts, 1 Paige, lowed first by the death of his child, 347; reversed, on other grounds, in 4 and then by that of his wife, is not Wend. 168. entitled to letters of administration on 33 Co. Civ. Proc, § 2660, as amended his estate, since not he but the legal 1893. See Blanck v. Morrison, 4 Dem. representatives of the wife succeed to 297 ; s. c, as Estate of Blanck, 3 How. the personalty. (Matter of Seymour, Pr. (N. S.) 58. The guardian of a 33 Misc. 271; 68 N. Y. Supp. 638.) minor son of decedent has a preference 28 Matter of Gooseberry, 52 How. over the public administrator. (Mat- Pr. 310. And see Adee v. Campbell, ter of Hudson, 37 Misc. 539; 75 N Y 79 N. Y. 52. Supp. 1053.) 29 Sweezey v. Willis, 1 Bradf. 495. 34 Co. Civ. Proc, § 2660, as amended 30 O'Brien v. Neubert, 3 Dem. 156. 1894 (L. 1894, c. 503). siLibbey v. Mason, 112 N. Y. 525; § 345. Lettees of Admiitisteation in Intestacy. 288 the creditor first applying, if competent, to be entitled to pref- erence. If no creditor applies, the letters laust be granted to any other person or persons legally competent. The public ad- ministrator in the city of New York has preference, after the next of kin and after an executor or administrator of a sole legatee, over creditors and all other persons. In other counties the county treasurer shall have preference next after creditors over all other persons." ^^ It is also provided that vphere no relative, guardian of a minor relative, creditor, county treasurer, or public administrator consents to administration, any party to an action brought or about to be brought, and interested in the subject thereof, in v^hich the intestate, if living, would be a proper party, may apply.^® And in the case of an alien intestate, letters of administration may issue to the consul-general of his country,^''' or to his nearest friend.^* § 345. Preference of persons in same class. — As the statute enu- merates the persons having a right to administration in classes, it becomes necessary to distinguish between several persons of the same class, and provision is made for cases of this character. " If several persons of the same degree of kindred to the intestate are entitled to administration, they must be preferred 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 35 Co. Civ. Proc, § 2660, as amended the application was granted without 1894. As to the preference of the security beillg required, on the ground public administrator in Kings county, that the treaty with Italy provided see Co. Civ. Proc, § 2669, as amended for it; and that the State statute 1893. It was held, under the original should give way to the obligations of statute, now incorporated in section the Federal government under its 2669, that the public administrator of treaties with foreign nations. In Mat- Kings county had priority over an in- ter of Logiorato (34 Misc. 31), the fant next of kin in that county; an surrogate of New York refused to fol- infant not being " competent," within low that precedent, and granted let- the meaning of that statute. (Spreek- ters to the consul-general only because les V. Public Adm'r, 1 Dem. 475.) the local law warranted it, and be- Eelatives of an intestate, though not cause the public administrator re- entitled to share in his estate, have fused to serve. The usual security the preference in the issue of letters was also required. of administration over the public ad- 38 Matter of Paola, 36 Misc. 514; ministrator, and on a petition in his 73 N. Y. Supp. 1062. behalf must be cited to appear. (Mat- 39 Co. Civ. Proc, § 2660, as amended ter of Lowenstein, 29 Misc. 722; 62 1893. The original statute, which gave N. Y. Supp. 819.) a preference to unmarried, over mar- 36 Co. Civ. Proc, § 2660, as amended ried, women, was not repealed, im- 1897 (L. 1897, c. 177). pHedly, by L. 1867, c. 782, § 2, which 3T Matter of Fattosini, 33 Misc. 18; declares married women to be capable 67 N. Y. Supp. 1119; Matter of Lo- of acting as "administratrixes," etc, brasciano, 38 Misc. 415. In those cases as though they were single. The Act 289 Letters of Adjiinisteation iit Intestacy. § 346. to administration, the surrogate may grant letters to one or more of such persons." *° This discretion is not an arbitrary or capri- cious one, but one which must be exercised in view of the par- ticular circumstances of the case, and the peculiar claims and qualifications of the applicants.*^ The English rule is that where there are several claimants for administration, between whom the court must choose according to its discretion, the court will, other things being equal, decree administration to the one who has the greatest interest.*^ § 346. Surviving husband's preference. — The Kevised Statutes did not mention the husband, in its order of preference, but only " his widow." Another section provided that, " in case of a married woman dying intestate, her husband shall be entitled to administration in preference to any other person, as hereinafter provided;" ** and another, that " a husband, as such, if other- wise competent according to law, shall be solely entitled to ad- ministration on the estate of his wife." ** The substance of these enactments were brought into the Code in 1893, the words " surviving husband or wife " being substituted for " his widow," in the order of prefe'rence.*^ These statutory provisions are a declaration and aifirmation of the right which the common law gave to a surviving husband.*® The only alteration of the com- of 1867 merely freed married women nearest shall be preferred. Hence, a from pre-existing, disabilities, without niece is preferred in administration to disturbing the order of appointment, a grandnephew because nearer of kin and hence the appointment of an un- to the intestate. (Matter of Hawley, married woman as administratrix, 37 Misc. 667.) The half brother of an without notice to her married sister, intestate is entitled to letters of ad- was valid, the latter not having an ministration as against a sister of the equal right to letters. (Matter of whole blood. (Matter of Moran, 5 Curser, 89 N. Y. 401; overruling West Misc. 176.) V. Mapes, 4 Redf. 496.) Before the « Co. Civ. Proc, § 2660, as amended statute of 1867, giving males a prefer- 1893. enee, it was held that as between an 41 Peters v. Public Adm'r, 1 Bradf . adult daughter and the guardian of a 207; Quintard v. Morgan, 4 Dem. 171. minor son, the former was to be pre- 42 Tucker v. Westgarth, 2 Addams, f erred. (Cottle v. Vanderheyden, 11 352. Abb. [N. S.] 17.) In Wiekwire v. 43 2 R. S. 74, § 27. Chapman (15 Barb. 302), a resident 44 Id. 75, § 29. See Shumway v. adult female was preferred to non- Cooper, 16 Barb. 556; Ransom v. resident male relatives, who were Nichols, 22 N. Y. 110; Watson v. Bon- under age. The words quoted in the ney, 2 Sandf . 405 ; McCosker v. Golden, text do not mean that if both claim- 1 Bradf. 64; Vallance v. Bausch, 28 ants belong to the eighth class of the Barb. 633 ; Libbey v. Mason, 42 Hun, section — "To any other next of kin 470; revd., on another point, in 112 entitled to share in the distribution of N. Y. 525. the estate " — men of the class are to 45 Co. Civ. Proc, § 2660, as amended be preferred to women of the class in 1893. all cases but, on the contrary, intend 46 Barnes v. Underwood, 47 N. Y. that where members of the class are 351; Robins v. McClure, 100 id. 328; of different degrees of kindred the Matter of Harvey, 3 Redf. 214. § 347. Lettees of Administration in Intestacy. 390 mon-law rule is the statute which provides that the husband of a deceased wife, leaving descendants, is entitled to the same distributive share of her estate to which a widow is entitled in the personal property of her husband." *^ The statute declares that " if a surviving husband does not take out letters on the estate of his deceased wife, he is presumed to have assets in his hands sufficient to satisfy her debts, and is liable therefor." If, however, he takes out letters, then, as administrator, he is liable " for the debts of bis wife only to the extent of the assets re- ceived by him." *^ The statute now confirms a rule which the courts have adopted, that if a husband, who has taken out letters on his wife's estate, " dies, leaving any assets of his wife, un- administered, except as otherwise provided by law, they pass to his executors or administrators as part of his personal estate; but are liable for her debts, in preference to the creditors of the husband." *^ The proviso refers to the statutory order of pref- erence, so that in case a wife left descendants, they would take letters in preference to the husband's representative.'"'' § 347. Divorced wife — A divorced woman, whether the divorce was granted because of the misconduct of herself or of her husband, not being entitled, if he die intestate, to a distributive share of his estate, is not entitled to administer his estate. ^^ But otherwise where the husband and wife were separated by articles containing a release of all her right in his estate, a^ such a release does not amount to a renunciation of the right to administer.®^ 47 Co. Civ. Proe., § 2734, as amended (Matter of Sturtzkober, 37 St. Eep. 1893, substantially adopting 2 E. S. 939; 14 N. Y. Supp. 501.) 98, § 11, as amended L. 1867, c. 782, 51 Matter of Ensign, 103 N. Y. 284. § 11. See § 95-, ante. In Matter of Boyle 48 Co. Civ. Proo., § 2660, as amended (N. Y. Law J., March 14, 1891), let- 1893. ters were refused to a woman claiming *9 Co. Civ. Proc, § 2660, as amended to have married decedent after his 1893. divorce from his first wife, for his own 60 In Matter of Harvey ( 3 Eedf . adultery, the decree having forbidden 214; overruling Matter of O'Niel, 2 decedent marrying again during life- id. 544), it was held that where the time of plaintiff. A woman who went wife died, intestate, leaving no de- to another State and obtained a scendants, and afterward the husband divorce, procuring the decree on ser- died without taking letters of admin- vice by publication on her husband, istration upon her estate, his exec- cannot claim the right to letters of utors were entitled to them; and if, administration on his estate on the during his lifetime, such letters had ground the decree is invalid here, been issued to her relatives without since a party who has invoked the his renunciation, the surrogate would jurisdiction of any court and submit- revoke them and issue new letters to ted to its decree, cannot be heard to his executors. See Matter of Thomas, question its jurisdiction. (Matter of 33 Misc. 729; 68 N. Y. Supp. 1116. Swales, 60 App. Div. 599; 70 N. Y. Under no construction of the statute Supp. 220.) can the public administrator become 52 Matter of Wilson, 92 Hun, 318; entitled to letters in such a case. 36 N. Y. Supp. 882. 291 Letters of Administeation in Intestacy. §§ 348-351. §348. Joinder of person not entitled — Administration may be granted to one or more competent persons, although not entitled to the same, with the consent of the person entitled, to be joined with such person; which consent must be in writing, and be filed in the surrogate's office.^^ The consent is absolutely necessary to authorize the joinder;^* and notwithstanding a consent, a stranger cannot be appointed administrator, without the joinder with him of a person entitled. ^^ § 349. Preference not to be delegated — The right to administer is a personal one, and an individual who has the prior right thereto can prevent the grant of administration to those subse- quent to him in the order of preference, only by taking letters himself. He is not entitled to nominate a third person.^ TITLE THIED. PEOCEEDINGS TO OBTAIN LETTEES. § 350. Who may make the application. — It is not essential that the applicant for letters should be one claiming the first or ex- clusive right thereto. Any person entitled, absolutely or con- tingently, to administration on the estate of an intestate, may apply for an award of letters, either to himself, or to such other person or persons having a prior right, as may be entitled thereto, or, in the alternative, as the petitioner elects. ^^ § 351. Mode of application and contents of petition. — The ap- plication must be made to the Surrogate's Court having juris- diction, and must be by a written petition, duly verified, setting forth "the petitioner's title; the facts upon which the juris- diction of the court to grant letters of administration upon the estate depends; and the names of the husband or wife, if any, and of the next of kin of the decedent, as far as they are knoAvn to the petitioner, or can be ascertained by him with due dili- gence." The following facts should appear by the petition: 1. The full name and address of each person to whom it is asked 53 2 R. S. 76, § 34. incorporated in alien is incapable of obtaining letters Co. Civ. Proc., § 2660, as amended of administration upon the property 1893. of a, resident here, and cannot, by 54 Peters v. Public Adm'r, 1 Bradf . power of attorney, authorize another 200. to do so in his behalf. (Sutton v. 55 Matter of Root, 1 Eedf. 257; Mat- Public Adm'r, 4 Dem. 33.) ter of Ward, id. 254. 57 Co. Civ. Proc, § 2662, as amended 56 Matter of Root, 1 Eedf. 257; Mat- 1893, by consolidating foTmer §§ 2660, ter of Ward, id. 254. A nonresident 2661. § 351. Letters or Administration in Intestacy. 392 that letters be issued, and enough to show, prima facie, his competency to administer, including his relationship to, or the fact that he is a creditor of, the decedent, and his age. If either of such persons does not reside in this State, there should be an allegation that he is a citizen of the United States, since a nonresident alien is incompetent. It is not necessary to state that he has not been convicted of an infamous crime, as that will be presumed. The other grounds of incompetency specified in the statute depend on the adjudication of the surrogate upon the facts, and there need be no allegation in regard to them. 2. The fact of the death of the person upon whose estate a grant of administration is sought. The time, place, and manner of the death should be specified, if the petitioner has knowledge thereof. If he has not such knowledge, the allegations upon that point may be made on information and belief. In case the only available evidence of the death is circumstantial, there should be a statement of such facts and circumstances as raise a presumption of death, and justify the surrogate in adjudging that the same has occurred. In such instances, great care should be taken to set forth every circumstance which would raise an in- ference of death, since, in a case where the fact of death does not actually exist, the letters cannot be sustained against col- lateral attack, unless due proof of death is adduced before the surrogate. As to the fact of death, mere information and belief, without any reasons for it, are not proof or evidence in any legal sense. ^^ No absolute rule can be laid down as to what is sufficient circumstantial proof of death, so as to make the surrogate's de- cision, that the person is really dead as alleged, conclusive. Little question can exist where there is direct evidence, as the testi- mony of one who witnessed the death and burial; but where the evidence is circumstantial, there may be considerable difficulty.®' 58 Eoderigas v. Bast Kiver Sav. Inst., and belief, the fact being that he was 76 N. Y. 316. In this ease, the peti- living. Held, that "there was too tiou was not presented to the surro- much ' voidness ' in this proceeding to gate, who never saw the petitioner, justify any court in sustaining it for and never in fact acted upon the peti- any purpose whatever," and that the tion, and had no actual knowledge of letters were no protection to an inno- it, nor of the issuing of the letters, cent person who had, upon presenta- the business being done by a clerk in tion thereof, in good faith and rely- the office, who used n blank which had ing upon them, paid to the person been signed by the surrogate and left named as administratrix m, sum due with him, and attached the surro- the alleged decedent, gate's seal. The only proof of the 59 As to the burden of proving de- death of the person on whose estate cedent's death, and for illustrations of administration was asked, was the what circumstances will prove it in- allegation of the petitioner, upon the ferentially, see § 186, ante. best of her knowledge, information, 293 Lettees of Admixisteatiox in Intestacy. § 351. 3. That the decedent left no valid will/" and the other facts essential to show that the surrogate to whom the application is made has jurisdiction to grant it — e. g., that the deceased was, at the time of his death, a resident of the surrogate's county, or, being a nonresident of the State, died in that county, leaving property in the State, etc. -i. The value of the decedent's per- sonal estate, so far as ascertained. 5. Whether the decedent left any husband or widow, children, adopted children, etc., so as to show the order of priority of right to the letters. If any such persons survive, the petition should sho%w the full name and resi- dence of each, and his relationship to the decedent, and whether any of them are infants, and, if so, the full names and residences of the guardians, if any. Also, whether the relatives of the same degree of kindred are males or females, — if females, whether married or single, — and whether they are of the whole blood or of the half blood, as these matters determine the preference among several persons of the same degree of relationship. Where several are equally entitled to administration, the petition may properly contain a statement of such facts as vsrill guide the sur- rogate in the exercise of his discretionary power to choose among them. 6. In case there are persons who have a right of admin- istration prior, or equal, to that of those to whom the letters are sought to be issued, and they have renounced, that fact should be alleged. If the applicant prays for the issue of letters to himself, and desires to have one or more persons, not entitled to administer, joined with him in the administration, the petition should state the full names and residences of such persons, and facts showing, prima facie, their competency to administer, in the same manner as vsdth respect to a person entitled, and con- tain a consent to such joinder. The petition must always pray for a decree which, under the present statute, is a preliminary to the issuing of the letters in all cases. In certain instances there will also be a clause asking that a citation issue ; and where 60 A verified petition alleging the tioner has made diligent search among death of decedent "without leaving the papers of the decedent, and found any valid last will and testament, to no will, is sufficient; or that a paper my knowledge, information, or belief," purporting to be a will was revoked made by the nephew of the decedent, by the testator in his lifetime; or that a resident of the same county she the paper was not a valid will, by lived in, and one of her nearest of reason of the incapacity of the tes- kin,— Held sufficient to confer juris- tator. Where an invalid or inopera- diction on the surrogate to determine tive testamentary paper is alleged, the the fact as to intestacy, a will having executors and legatees named therein, been probated in another State. (Mat- if known, should be mentioned, and the ter of Cameron, 47 App. Div. 120; 62 court ought to require notice to them N. Y. Supp. 187 ; affd., 166 N. Y. before granting administration. 610.) An allegation that the peti- §§ 352-354. Letters of Administration in I^'TJ:sTACV. 294 the petitioner asks that letters issue to himself, and desires a person, not entitled, to be joined, he should add a prayer to that effect. The Code provides that the prayer shall be for a decree awarding letters of administration, either to him or to such other person or persons, having a prior right, as may be entitled thereto, or in the alternative, as the petitioner elects; and, if necessary, that the persons required to be cited, as prescribed in the statute, may be cited to show cause why such a decree should not be made.*' § 352. Renunciation of prior right to letters As in the case of one appointed executor by a will, the right to administration may be renounced. The Code provides for a renunciation by a person who has either a prior or an equal right to that of the petitioner, and the mode prescribed for the renunciation is " by a written instrument, acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, or othervdse proved to the satisfaction of the surrogate ; which must be filed in the surro- gate's office." «2 § 353. ttualified renunciation — A distinction, not indicated in the statute, has arisen in practice between an absolute and a qualified renunciation. By the former, the person having the right gives it up without qualification, and it may then be taken advantage of by any one standing in the same or the subseq^ient order of preference; while, by the latter, the person executing the renunciation inserts a clause stating that he renounces in favor of a certain person only, and such a renunciation is of avail only to the person in whose favor it is made. It seems that a renunciation may be retracted at any time before the letters of administration have actually issued, and that such a retraction is a matter of right which the surrogate cannot refuse to allow.®'' § 354. Proof requisite for citation or decree. — Ordinarily the fil- ing of the petition will be followed by the issuing of a citation; but where it is not necessary to cite any person, a decree grant- ing letters may be made directly upon presentation of the peti- tion.^ Before the surrogate acts in either manner, the statute requires that he should have before him satisfactory presumptive 61 Co. Civ. Proc, § 2662, as amended administered on in such State. (Sulz 18,93 (former § 2660). v. Mutual Reserve Fund Life Assn., 83 62 Co. Civ. Proc, § 2663, as amended Hun, 139; revd., on other points, in 1893, consolidating former § 2664. A 145 N. Y. 563.) renunciation of the right to be ap- 63 Casey v. Gardiner, 4 Bradf. 13. pointed administrator in another State ** Co. Civ. Proc, § 2662, as amended relates only to assets which must be 1893, consolidating former § 2661. 295 Letters of Administration in Intestacy. § 355. evidence of the facts upon which his jurisdiction depends. It is provided that " a citation shall not be issued, and a decree shall not be made where a citation is not necessary, until the petitioner presumptively proves, by affidavit or otherwise, to the satisfac- tion of the. surrogate, the existence of all the jurisdictional facts, and, particularly, that the decedent left no will. For the pur- pose of the inquiry touching any of these matters, the surrogate may issue a subpoena, requiring any person to attend and be ex- amined as a witness." ^* For example, where administration is claimed by an alleged son of the intestate, but his legitimacy is denied, proofs must be taken, and the question of interest deter- mined.®^ Where the decree for letters is made without citation^ upon the presentation of the petition, it is manifest that the latter must contain all the proof which the statute requires to be presented. The surrogate is not confined to any form of pro- cedure or mode of proof on an application for letters of adminis- tration. He may receive proof by affidavit.®'' § 355. When citation to issue. — As to whether or not a citation shall issue, upon an application for a grant of administration, the Code specifies three classes of cases, in two of which a citation is required, while in the third its issuing is in the discretion of the surrogate: " 1. Every person, being a resident of the State, 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.®* 2. Where the surrogate is unable to ascertain; to his satisfaction, whether the decedent left surviving him any person entitled to succeed to his estate, 65 Co. Civ. Proc, § 2662, as amended rogate to issue the letters did not de- 1893, consolidating former § 2661. pend upon its observance. (Farley v. The last clause of this section is in McConnell, 52 N. Y. 630; Johnston v. addition to the general provision (Co. Smith, 25 Hun, 171.) As to verifica- Civ. Proc, § 2481, subd. 3) conferring tion before a notary, and the form of upon surrogates power to issue sub- it, see Perry v. Cornell Steamboat Co., poenas to witnesses. The provision of 27 Hun, 216. the Revised Statutes (2 R. S. 74, 66 Public Adm'r v. Hughes, 1 Bradf. § 26), which this section supersedes, 125. differed from it in phraseology, re- ST O'Connor v. Huggins, 113 N. Y. quiring that before the letters shall be 511. issued, " the fact of such persons dying 68 Co. Civ. Proc, § 2663, as amended intestate shall be proved to the satis- 1893, consolidating former § 2662. faction of the surrogate, who shall ex- Formerly, persons having equal right amine the person applying for such to the administration with the peti- letters, on oath, touching the time, tioner, were not required to be cited, place and manner of the death, and (Peters v. Public Adm'r, 1 Bradf. whether or not the party dying left 200.) But not so now. (Matter of any will, etc." But it was held that Tobin, 7 N. Y. Surr., MS. Dec. 138; the provision was merely directory. Matter of Early, N. Y. Law J., Feb. and that the jurisdiction of the sur- 18, 1890.) § 356. Letters of Administration in Intestacy. 296 a citation must be issued, directed generally to all creditors of, and persons interested in, the estate, and also to the attorney- general and the public administrator of the proper county, re- quiring them to show cause why administration should not be granted to the petitioner.^® 3. The surrogate may, in his dis- cretion, issue a citation to nonresidents, or those who have re- nounced, or to any or all other persons interested in the estate, whom he thinks proper to cite." ''° " Where it is not necessary to cite any person, a decree, grant- ing to the petitioner letters, may be made on presentation of the petition." ''^ It is obvious that where there is no one who has a right to the administration either " prior or equal to that of the petitioner," no citation is necessary; for example, no cita- tion is necessary on the application of a widow for letters on her deceased husband's estate,'^ nor where application is made by a residuary legatee. ''* A person Avho has the prior right of ad- ministration must be cited, even although letters issued to him have been revoked for a failure to give new sureties.^* Where the person having such prior right or one having an equal right has not been cited, letters issued to another will be revoked on his application.'^^ § 356. Contents and service of citation — In respect to its con- tents, the citation must of course conform to the requirements of the statute applying to all citations issued by a surrogate."* The Code specifies, in only one instance, i. e., where the public administrator and the attorney-general are to be~cited," the tenor of a citation issued upon an application for letters in intestacy; but, in other cases, as in the one referred to, it should require those to whom it is directed to show cause why administration should not be granted to the petitioner, or as prayed for by him. The rules governing the time, manner, and proof of service of the citation have been already given, while treating of the com- mencement of proceedings in general.''® 69 Co. Civ. Proc, § 2663. The mode t2 Matter of Moulton, 32 St. Eep. of service of such a citation, upon 631 ; 10 N. Y. Supp. 717. the general class of creditors and per- 73 Matter of Richardson, 8 Misc. sons interested, will be by publica- 140; 29 N. Y. Supp. 1079. tion, under Co. Civ. Proc, § 2523. 74 Barber v. Converse, 1 Redf. 330. See § 75, ante. ''5 Barber v. Converse, 1 Redf. 330 ; TO Co. Civ. Proc, § 2663, as amended Public Adm'r v. Peters, 1 Bradf . 100. 1893, consolidating former § 2662. And see Oram v. Oram, 3 Redf. 300. 71 Co. Civ. Proc, § 2663, as amended 76 Co. Civ. Proc, § 2519. 1893, consolidating former § 2662. 77 Co. Civ. Proc, § 2663. 78 Chapter III, ante, § 76 et seq. 297 Lettees of Admixisteation in Intestacy. §§ 357, 358. § 357. Appearance by person not cited It is provided, with re- spect to an application for letters in intestacy, that " where a citation is issued, any creditor of the decedent, or any person in- terested in the personal estate, although not cited, may appear and make himself a party to the special proceeding, in like man- ner and with like effect as a devisee or legatee, who is not cited upon an application for probate." ™ § 358. Proceedings on the hearing. — The statute contemplates two species of hearings before the surrogate, on an application for a grant of administration in case of intestacy, — one upon his own motion, as a preliminary to the issuing of a citation, or, where no citation is necessary, in case he requires proof of the existence of one or more of the requisite jurisdictional facts, in addition to that furnished by the allegations of the verified peti- tion; and the other, tlie ordinary hearing where a citation is is- sued, and questions are presented, by opposing allegations, for his determination before the rendering of his decree. If the jurisdictional facts set forth in the petition, such as the intes- tate's death, and his leaving personal property within the State, are not put in issue, oral proof of these facts upon the hearing is unnecessary.^" The fact that the deceased was not intestate may be shown, either by original proof of a will, or by evidence that a will has been duly proved in a court of competent juris- diction. Upon an allegation of the existence of an unproven will, proceedings will be stayed to afford opportunity to have it proved in due course.^^ If it is alleged that the decedent left a will, and an executed will is traced last to his possession, there must be proof of search for it among his papers. If it cannot be found, the presumption is that he revoked it by destroying it.*^ In determining the right of the petitioner, or other per- son, to letters of administration, it frequently becomes necessary to determine questions of marriage, legitimacy,** etc., and these, 79 Co. Civ. Proc, § 2663, as amended Redf. 299.) See Matter of Cameron, 1893, • consolidating former § 2665. 47 App. Div. 120; 62 N. Y. Supp. 187; See ante, § 85. aflfd., 166 N. Y. 610. 80 Matter of Gooseberry, 52 How. S2Bulkley v. Redmond, 2 Bradf Pr. 310. 281. See § 235, cuite. 81 Isham v. Gibbons, 1 Bradf. 69. 83 In cases where there is a dispute Where the applicant for letters swore as to whether the intestate was ever that decedent died without leaving a married, the presumption is always in will, and those claiming that a will favor of marriage, and if the evidence had been made and destroyed adduced merely shows filiation, legitimacy will no evidence, — Held, that the proof, on generally- be presumed, especially if the part of the applicant, was suffi- the affair be remote and the parents oient, and that his petition should be are dead, and the children alone are granted. (Matter of Demmert, 5 interested. The lex loci contractus §§ 359, 360. Letters of Administeation in Intestacy. 298 as well as questions of preference, require to be first determined on evidence to be produced before the surrogate. § 359. The decree and letters — The surrogate must make a de- cree, either granting or refusing to grant the letters. If a cita- tion has issued, the Code provides that upon its return — that is, not necessarily immediately upon its return,** but after hearing the allegations and proofs of the parties — the surrogate must make such a decree in the premises as justice requires.*' If the decree grants letters, it may, in the surrogate's discretion, award administration without a personal examination*® of the person to whom it is awarded; and it may make the award to any party to the special proceeding who appears to be entitled thereto.*^ Having, with his sureties, executed the bond** and justified, and taken the oath of office, he is entitled to receive the letters. § 360. Limited letters. — In a proper case, the court may, in a grant of administration, insert in the letters a limitation of the authority to be exercised thereunder by the recipient. For ex- ample, where the only asset is a cause of action of decedent, of uncertain value, surviving to the representative, or which is granted to the representative by law, — e. g., damages for negli- gently causing decedent's death, — the amount likely to be re- coverable being doubtful, the court may accept a modified secu- governs as to the fact, whether a Bradf. 343; Foster v. Hawley, 8 Hun, valid marriage took place, which, in 68 ; Blossom v. Barrett, 37 N. Y. 434 ; the absence of proof to the contrary, Oram v. Oram, 3 Redf . 300 ; Davis v. will be taken to be the same as the Brown, 1 id. 259; White v. Lowe, id. lex fori. (Ferrie v. Public Adm'r, 4 376; Wyles v. Gibbs, id. 382; Decker Bradf. 28.) But where the person v. Morton, id. 477; Renholm v. Pub- claiming as a party to the alleged con- lie Adm'r, 2 id. 456 ; Byrnes v. Dibble, tract of marriage is living, and the 5 id. 383. transaction is recent, defects in the 84 See Co. Civ. Proc, § 2514, subd. proof, or in the explanation ,of sus- 10, for a definition of this expression, .picious circumstances, are taken more ^ Co. Civ. Proc, § 2663, as amended adversely than when the events in- 1893, consolidating former § 2666. volved are remote, and both of the The requirement of a decree in all parties are deceased. (Hill v. Burger, cases is new. It has not been the 3 Bradf. 432. ) See Minor v. Jones, 2 practice, we believe, to enter a formal Redf. 289 ; Clayton v. Wardell, 4 N. decree where there is no contest, ex- Y. 231 ; Cheney v. Arnold, 15 id. 351 ; cept so far as the entry in the record- Van Tuyl V. Van Tuyl, 8 Abb. Pr. (K. book kept for that purpose is a de- S.) 5; 57 Barb. 235; Jackson v. cree. It is still the practice to issue Winne, 7 Wend. 47 ; CaujoUe v. Fer- letters forthwith in such a case. If rie, 23 N. Y. 90; Jacques v. Public any order is made, it is by an entry Adm'r, 1 Bradf. 499; Hyde v. Hyde, in the surrogate's books. 3 id. 509 ; Bissell v. Bissell, 55 Barb. 86 See Farley v. McConnell, 52 N. 325; Fleming v. People, 27 N. Y. 329; Y. 630. Brower v. Bowers, 1 Abb. "Ct. App. 87 Co. Civ. Proc, § 2663, as amended Dec. 214; O'Gara v. Eisenlohr, 38 N. 1893, consolidating former § 2666. Y. 296; Cunningham v., Burdell, 4 88 See c XV, pos*, on Official Bonds. 299 Letters of Administeation in Intestacy. § 361. rity, and limit the authority of the letters to the prosecution of such action, and restraining the representative from compromis- ing the action or enforcing any judgment recovered therein without the order of the surrogate, on additional further satis- factory security.*" TITLE FOURTH. QUALIFICATIONS OF ADMINISTEATOE. § 361. Who are incompetent to administer. — The rules govern- ing the competency of a person to be an administrator are, with the single exception hereinafter noted, the same as those in the case of an executor. These have been detailed in a previous chapter.^" With respect to letters of administration, the statute declares that such letters shall not be granted to (1) a person convicted of an infamous crime; nor to (2) any one incapable by law of making a contract; nor to (3) a person not a citizen of the United States, unless he is a resident of this State; nor to (4) a person under twenty-one years of age; nor to (5) a person who is judged incompetent by the surrogate to execute the duties of such trust, by reason of drunkenness, improvidence, or want of understanding.®^ The exception referred to is, that whereas " dishonesty," when so adjudged by the surrogate, disqualifies a person for the office of executor, it is not expressly stated to be a bat to a grant of letters of administration, though, by another section, dishonesty is made a ground for revoking such letters.®^ The fact that a man sought to obtain property from another by theft or fraud has been held not to be " improvidence " within the meaning of the statute, though no one can doubt that it is " dishonest." ^ The standard of incompetency fixed by the written law can alone be applied in passing upon the qualifications of an applicant to 89 Co. Civ. Proc, § 2664, as amended tion by the administrator, on an ob- 1893, incorporating former § 2667. jeetion that the letters were invalid Aside from the question of security, upon their face, and did not authorize we fail to see any jurisdictional ob- him to bring the action, the surro- jection to the court's limiting the gate's power to insert the limitation eflfect of letters granted by it in a was upheld, proper case, according to English 90 See § 303, ante. practice. In Martin v. Dry Dock, etc., 91 Co. Civ. Prcc, § 2661, as amended E. R. Co. (92 N. Y. 70), the letters 1893, incorporating 2 R. S. 75, § 32; granted power " with the powers, ex- as amended L. 1830, c. 320, § 18 ; L. pressed in the margin," and on the 1863, c. 362; L. 1867, c. 782, § 2. margin was written, " These letters 92 Co. Civ. Proc, § 2685. are issued with limited authority to 93 Coope v. Lowerre, 1 Barb. Ch. 45. prosecute only, and not with power See Coggshal v. Green, 9 Hun, 471; to collect or compromise." In an ac- Matter of Cutting, 5 Dem. 456. §§ 362-364. Lettees of Administeation in Intestacy. 300 whom that law has given priority; hence indebtedness to the estate or personal interest in its administration are not of them- selves,^* nor are old age and physical infirmity, -per se, disqualifi- cations for the office.^ The fact that the person having the right to a grant of letters claims to own the property alleged to belong to the estate, is not a bar to such grant.®* A corpora- tion cannot be administrator, unless so authorized by its charter; which is the case of several trust companies. ^'^ § 362. Administrator's oath. — The ofiicial oath or affirmation of an administrator, to the effect that he will well, faithfully, and honestly discharge the duties of his office, describing it, must be filed with the surrogate before letters are issued to him. Where his appointment and qualifying are brought in question in a col- lateral action, he will be presumed, in the absence of proof to the contrary, to have taken the oath of office.** § 363. Administrator's bond — An administrator must before let- ters are issued to him, besides filing his official oath, execute to the people of the State, and file with the surrogate, the joint and several bond of himself, and two or more sureties, in a penalty, fixed by the surrogate, not less than twice the value of the per- sonal property of which the decedent died possessed, and of the probable amount to be recovered by reason of any right of action, granted to an executor or administrator, by special provision of law.®" The regulations for ascertaining the amount of penalty, etc., are reserved for consideration in the chapter on official bonds. TITLE FIPTH. EFFECT OF GEANT OF LETTEES. § 364. The letters as authority. — The consideration of the effect of the grant of letters of administration properly involves the general question of the effect of surrogates' decrees — a topic which has been to some extent discussed in the chapter on probate, and will be further discussed in another chapter.'' Unlike an executor, who may assume some of the duties of his trust before probate, the rule, with respect to an 94 Estate of Morgan, 2 How. Pr. (N. 97 Thompson's Estate, 33 Barb. 334. S.) 194; Churchill v. Prescott, 2 98 Johnston v. Smith, 25 Hun, 171 ; Bradf. 304. Dayton v. Johnson, 69 N. Y. 419. 95 Matter of Berrien, 3 Dem. 263. 99 Co. Civ. Proc, § 2664, as amended 98Hayward v. Place. 4 Dem. 489; 1893 (former § 2667). Matter of Facundi, N. Y. Law J., Nov. i See § 247, ante, and e. XXI, post. 20, 1890. 301 Lettees of Administeation in Intestacy. §§ 364a, 365. administrator, is, that a party entitled to administration can do nothing before letters are granted to him, inasmuch as he derives his authority, not like an executor from the will, but entirely from the appointment of the court. Upon the issue of letters, however, the personal property of the intestate vests in the administrator, by relation, from the death of the intestate,^ so that one who has taken possession wrongfully is a trespasser ah initio.^ Upon the same principle, a contract entered into, after the intestate's death, but before the issuing of letters, by one sub- sequently appointed administrator, is rendered valid by the ap- pointment.* The authority conferred by the letters has reference exclusively to the personal property of the intestate.^ § 364a. Priority among different letters. — The person or persons to whom letters of administration are first issued from a Surro- gate's Court having jurisdiction to issue them, have sole and ex- clusive authority as administrators, pursuant to the letters, until the letters are revoked as prescribed by law ; and they are entitled to demand and recover from any person, to whom letters upon the same estate are afterward issued by any other Surrogate's Court, the decedent's property in his hands. But the acts of a person to whom letters were afterward issued, done in good faith before notice of the letters first issued, are valid; and an action or special proceeding commenced by him may be continued by and in the name of the person or persons to whom the letters were first issued.® § 365. Effect of grant, by way of estoppel. — Where letters of ad- ministration are granted to a person, his acts, in the course of the proceedings to obtain the grant, are held to operate upon him, in various ways, as an estoppel. Thus, the administrator and the sureties on his bond are estopped from denying that the surro- gate had jurisdiction to grant the letters, in an action upon the bond,'' or in any proceeding to recover assets which the appoint- ment and the bond enabled the administrator to obtain;* and where one made application for administration on the estate of 2 Whitloek v. Bowery Sav. Bank, 36 5 See Hillman v. Stephens, 16 N. Y Hun, 460, and eases cited. 278; Brevoort v. McTimsey, 1 Edw 3 Rockwell V. Saunders, 19 Barb. 551 ; Griffith v. Beecher, 10 Barb. 432. 473. Where there are no creditors, For a consideration of the rights and the widow and daughter of an intes- liabilities of administrators generally, tate, his only next of kin, may settle see c. XVII, post. his estate, without taking out letters. 6 Co. Civ. Proc, § 2592. (Herrington v. Lowman, 22 App. Div. T Field v. Van' Cott, 5 Dalv 308 266; 47 N. Y. Supp. 863.) See c. XV, post. 4 Allen V. Eighmie, 9 Hun, 201. s Johnston v. Smith, 25 Hun, 171. §§ 366, 367. Lettees of Administration in Intestacy. 302 his deceased wife, alleging, under oath, that she died possessed of personal property, and received letters and afterward filed his account, in which certain moneys were returned, as constituting the whole estate, it was held that he was estopped, as against a creditor of the estate, from claiming the moneys as his own in- dividual property.® § 366. Letters as evidence of authority — Subject to the rule of priority among different letters, above mentioned, it is provided that letters of administration, granted by a court or officer having jurisdiction to grant them, are conclusive evidence of the author- ity of the persons to whom they are granted, until the decree granting them is reversed upon appeal, or the letters are revoked.-"' This rule protects the decree and letters, in general, from collateral impeachment ;-'^ but it is, of course, subject to the exception which exists with reference to the adjudication of all other tribunals, viz., that where the court had no jurisdiction the decree is void, and -its character may be shown in a collateral proceeding. Where the validity of the appointment of administrators is attacked, the burden of proof is upon the attacking party, to show a want of jurisdiction in the surrogate.-'^ The statute does not require the facts conferring jurisdiction to be proved in any particular way, nor the proofs to be filed or reduced to writing, and, therefore, a failure to find such proofs on file in the surrogate's office is not evidence that no such proofs were adduced before him; the pre- sumption is that they were.*^ The production of the letters, or the record, or the exemplification of the record thereof, establishes, prima facie, the representative character of an administrator, in an action brought by him.-'* A formal defect in the letters may, it has been held, be remedied after the commencement of the action in which they are offered as evidence. ^^ § 367. Becord, etc., of letters as evidence. — The surrogate is re- quired to record, in a book kept for that purpose, all letters of ad- 9 Garvey v. McCue, 3 Redf. 313 ; Welch v. N. Y. Cent. E. E. Co., 53 id. revd. on another point, 14 Hun, 562. 610. 10 Co. Civ. Proe., § 2591 ; Leonard is Farley v. MeConnell, supra. V. Columbia Steam Nav. Co., 84 N. l*Belden v. Meeker, and cases Y. 48; Kelly v. West, 80 id. 139; supra. See Flinn v. Chase, 4 Den. 85. Eoderigas v. East Eiver Sav. Inst., 63 iSMaloney v. Woodin, 11 Hun, 202; id. 460; Parhan v. Moran, 4 Hun, 717; where an administrator, plaintiff, was More V. Finch, 65 id. 404; c. XXI, allowed to cause the letters to be post. sealed, pending the trial of the action 11 Kelly V. Jay, 79 Hun, 535 ; 29 N. upon which they had been excluded, Y. Supp. 933. for the want of sealing, when offered 12 Belden v. Meeker, 47 N. Y. 307 ; in evidence. Farley v. MeConnell, 52 id. 630; 303 Lettees of Administeation in Intestacy. §§ 368, 369. ministration issued out of his court.^® A transcript of the record of the letters duly certified is evidence, as if the originals were produced." TITLE SIXTH. ADMINISTRATION DE BONIS NON. § 368. When will be granted — The distinction between an ad- ministrator with the will annexed (being one who succeeds to or takes the place of an executor), and an administrator of the goods, etc., left unadministered by a former administrator, has been pointed out. Where an administrator dies, or becomes incapaci- tated to act, by revocation of his letters, or otherwise, a successor will not ordinarily be appointed, unless he was a sole administrator or survivor.-'^ But where all the administrators to whom letters have been issued die, become lunatic, are convicted of an infamous offense, or otherwise become incapable of discharging the trust reposed in them, or the letters are revoked as to all of them, the surrogate must grant letters of administration to one or more per- sons as their successors, in like manner as if the former letters had not been issued.^® Notwithstanding this mandatory language, yet where the administrator, before his letters were revoked, had fully administered the estate, his accounts may be settled, with- out appointing a successor ; moreover, the prosecution of his bond does not require such appointment.^* The Code does not expressly state which surrogate has jurisdiction to grant the new letters f^ but, in another section,^^ treating of revocation of letters, the power to appoint a successor is conferred upon the Surrogate's Court which granted the decree of revocation. § 369. His powers. — ^ The successor to an administrator, whose letters have been revoked, may complete the execution of the trust committed to his predecessor ; he may continue, in his own name, a civil action or special proceeding pending in favor of his prede- cessor; he may enforce a judgment, order, or decree in favor of the latter f^ and he may maintain an action against the surety 16 Co. Civ. Proc, § 2498, subd. 2. 22 Co. Civ. Proc, § 2605. IT Co. Civ. Proc, § 933. 23 Co. Civ. Proc, § 2605. An ad- 18 See Co. Civ. Proc, § 2692. ministrator de bonis non has no 19 Co. Civ. Proc, § 2693. greater rights than his predecessor; 20 Prentiss v. Weatherly, 68 Hun, and a payment which, by relation back 114; 22 N. Y. Supp. 680; affd., 144 and ratification, is protected, is a de- N. Y. 707. fense as against an action by the suc- 21 The original statute (2 E. S. 78, cesser as well as against the one who § 45) specified, "the surrogate hav- received it. (Whitlock v. Bowery ing authority to grant letters origin- Sav. Bank, 36 Hun, 460.) ally." §§ 370, 371. Lettees of Administeation in Intestacy. 804 of his predecessor for moneys received by him.^* ^nd there would seem to be no doubt that this is true in all cases of suc- cession."''^ § 370. Petition for, and form of, letters. — The proceedings to obtain such letters are the same as upon an original application, and the same rules in regard to priority obtain,^'' except that a person who has been removed for incompetency, etc., and not for a mere failure to give sureties, cannot apply again for letters. The petition should state the same facts as on an application for original administration, and also the facts showing a proper case for the grant of letters de bonis non, as the death of all the ad- ministrators, or their removal, etc., and that there are assets left unadministered, stating their value, etc. In all other respects the petition and the subsequent proceedings are the same as upon an original application. The Code says, briefly, " the proceedings to procure the grant of such letters are the same as in a case of intestacy." ^^ The form of letters is in all respects the same as on an original grant, except that they recite the revocation of let- ters, or death, etc., of the former administrator, and commit to the new administrator the administration of all and singular the goods, chattels, and credits of the deceased left unadministered by him. TITLE SEVENTH. ANCILLAEY LETTEES OF ADMINISTEATION. § 371. Jurisdiction, when possessed — The statute makes provi- sion for the recognition, by the Surrogates' Courts of this State, of a grant of administration upon the estate of an intestate non- resident, made by a court of his domicile, by the issuing of an- cillary letters in accordance therewith.^® The application for ancillary letters of administration upon the estate of such a non- 24 Dunne V. American Surety Co., right to letters de honis non over a 34 Misc. 584; 70 N. Y. Supp. 391. creditor. (Matter of Hine, N. Y. Law 25 The Revised Statutes enacted that J., Jan. 26, 1893.) the "administrator shall give bonds 27 Co. Civ. Proc, § 2693. The sur- in the like penalty with like sureties rogate may fix as the penalty of the and conditions as heretofore required bond to be given a sum not less than of administrators, and shall have the twice the value of the assets remain- like power and authority." (2 R. S. ing unadministered. (Id., as amended 78, § 45.) 1889.) 26 Matter of Place, 3 St. Rep. 210; 28 As to when letters are ancillary 9 Civ. Proc. Rep. 435. The public ad- and when principal, see Hendrickson ministrator may be appointed. (Ket- v. Ladd, 2 Dem. 402; 5 Civ. Proc. Rep. chum v. Morreli, 2 N.Y. Leg. Obs. 58.) 50; Black v. Woodman, 5 Redf. 363. A nephew of decedent has priority of 305 Letters of Administration in Intestacy. §§ 372, 373. resident intestate is required to be made " to a Surrogate's Court having jurisdiction of the estate." ^® In order to decide which Siirrogate's Court has jurisdiction in any particular case, it is necessary to consult the sections of the Code already discussed in this chapter, prescribing in general the jurisdiction of the Sur- rogates' Courts in cases of intestacy.^" So much of those sec- tions and of such discussion as relates to nonresidents of the State will be pertinent to the determination of the question suggested. § 372. To whom the letters issued. — A grant of ancillary letters of administration will only be made to the person named in the foreign letters, or to the person otherwise entitled to the posses- sion of the decedent's personal property, unless another person applies therefor, and files with his petition an instrument exe- cuted by the foreign administrator, or person otherwise entitled as aforesaid, or, if there are two or more, by all who have quali- fied and are acting, and also acknowledged or proved, and cer- tified, in like manner as a deed to be recorded in the county, au- thorizing the petitioner to receive such ancillary letters ; in which case the surrogate must, if the petitioner is a fit and competent person, issue such letters directed to him. Where two or more persons are named in the foreign letters, or in an instrument exe- cuted as above prescribed, the ancillary letters may be directed to either or any of them, without naming the others, if the others fail to qualify, or if, for good cause shown to the surrogate's sat- isfaction, the decree so directs.^^ The statute declares the cases in which letters shall not be issued, to wit : "1. Where ancillary letters have been previously issued, as prescribed in the Code. 2. Where an application for letters of administration upon the estate has been made by a relative of the decedent, who is legally competent to act, to a Surrogate's Court of this State having ju- risdiction to grant the same ; and letters have been granted ac- cordingly, or the application has not been finally disposed of." ^^ § 373. The application for letters — The application must be made by the written petition, either of the party who is entitled to letters, or of his duly authorized attorney in fact, accompanied — ■ in case decedent, at his death, resided out of the State, but in the United States — by a duly authenticated copy of letters of ad- ministration upon his estate granted in the place of his residence. 29 Co. Civ. Proc, § 2696. Willett, 76 Hun, 211; 27 N. Y. Supp. 30 Co. Civ. Proc, §§ 2476, 2477; 785. § 338, ante. 32 Co. Civ. Proc, § 2696. 31 Co. Civ. Proc, § 2697; Ross v. 20 § 373. Lettees of Administeation in Intestacy. 306 In case decedent, at the time of his death, resided without the United States, " satisfactory proof " must be furnished the court, " that the party so applying, either personally or by such attor- ney in fact, is entitled to the possession, in the foreign country, of the personal estate of such decedent." ^^ As the proceedings for a grant of ancillary letters, whether of administration or tes- tamentary, are identical, and as the powers under both kinds of letters are the same, the reader is referred to the page treating of ancillary letters testamentary, where they are detailed.** 33 Co. Civ. Proe., § 2696. In Weed State. Held, that principal letters on V. Waterbury (5 Redf. 114), after the first application should be granted, principal letters had been applied for 34 See § 312, wnte. As to the here, on the ground that the decedent amount of the penalty of the bond, was a resident of the county, another see Sutton v. Weeks, 5 Redf. 353; application was made for ancillary Matter of Govan, 2 Misc. 291; 23 letters on the ground that the de- N. Y. Supp. 766, and § 316, ante, and cedent was an inhabitant of another c. XV, post. CHAPTER XII. PUBLIC ADMINISTRATORS. TITLE FIRST. NATUEE AND OBJECT OF OFFICE. § 374. In general. — Public administrators are the officers — one of whom exists in each county in the State — charged by law with the duty of collecting, preserving, arid administering the estates of persons dying intestate, in cases where no other admin- istrator is appointed. The object for which the office is estab- lished is that the estates of decedents shall not be wasted, but col- lected and preserved for those entitled thereto, or to remain in the public treasury if no rightful claimant appears. In all the counties, except those of !N^ew York, Kings, and Richmond, and except in those counties wherein the office of county treasurer has been abolished, the county treasurer is, by virtue of his office, public administrator of the county.'' It may be stated, generally, that the powers and duties of a public administrator are (1) such 1 The sixth title of chapter 6 of laws creating the oiBce of public ad- part 2 of the Revised Statutes, de- ministrator of Kings county (L. 1871, voted to the subject of public admin- c. 335; L. 1882, c. 124) were likewise istrators, was repealed by L. 1893, repealed by L. 1893, c. 686, and their c. 686. So much of it as related to provisions substantially readopted as the public administrator in the city section 2669 of the Code of Civil Pro- of New York had already been super- eedure. In Richmond county the seded by the Consolidation Act of office of public administrator was cre- 1882, c. 410, which adopted, without ated in 1899 (L. 1899, c. 486), and material amendment, the first article the powers of a county treasurer, of title 6, relating to that officer, when acting as public administrator, In 1895 (L. 1895, c. 827) the office conferred upon him. Provision is also was made independent of the law de- made for the appointment of a public partment of the city, and a general administrator in counties where the act was then passed (L. 1898, c. 230) office of county treasurer has been regulating his powers and duties, abolished. (L. 1900, c. 501.) As the The second article of the sixth title cases arising under the original stat- of the Revised Statutes so repealed, utes necessarily refer to them, we relating to public administrators in have, for the better understanding of the several counties other than New such references, cited the original York county, has been readopted as statutes as well as the sections of the sections 2665, 2666, 2667, and 2668 of Code where their provisions may now the Code of Civil Procedure. The be found. [307] §§ 375, 376. Public Administeatoks. 308 as devolve upon him by virtue of his office, without any formal investiture of authority in a particular case, and (2) such addi- tional powers and obligations as he acquires and is subject to, after receiving letters or his becoming otherwise duly clothed with the character of administrator of an estate. He has, virtute officii, without any appointment by the surrogate, or its equiva- lent, authority to act, in the cases specified in the statute, in the capacity of temporary administrator of an estate, — i. e., to " col- lect and take charge of the assets," including the right to sue for such purposes.^ The provisions of the statute, defining the pow- ers and obligations of the officer, are not to be tmderstood as ex- haustive, but are, throughout, to be taken with the qualification that the public administrator is an administrator as well as a public officer.^ § 375. Extent of authority — The powers which the public ad- ministrator has, hy virtue, of Ms office, do not extend further than to allow him to pay the funeral expenses of the deceased, to col- lect debts, to take possession of and secure the effects, to sell such as may be perishable, and to defray the expenses of the proceed- ings required by law.* § 376. Collecting and preserving estate. — General authority is conferred upon public administrators, when authorized to take charge of an intestate's property, " to take the same proceedings which an administrator, etc., may have or be entitled to take, (1) for the discovery of any property of the intestate which may be concealed or withheld, and (2") for the sale of any that may be perishable." ® The court may authorize him (if its authority 2 2 R. S. 129, § 47; L. 1871, r. 335, (Dayton v. Johnson, 69 N. Y. 419.) § 5; Co. Civ. Proc, § 2665, as amended See Co. Civ. Proc, § 2607. 1893. He may maintain an action 3 Miller v. Franklin Bank, 1 Paige, to annul a fraudulent transfer of 444. the property of the deceased and to 4 2 E. S. 123, § 28; L. 1882, c. 410, recover the same or its avails, for the § 233; 2 R. S. 131, § 65; Co. Civ. benefit of simple contract creditors. Proc, § 2666, as amended 1893. (Hangen v. Hachemeister, 53 Super. B 2 R. S. 129, §§ 50, 51; Co. Civ. Ct. [J. & S.] 532.) But if he seizes Proc, § 2665, as amended 1893. The property of a third person, as a mort- proviso of original statute, that sales gagee of chattels, in possession after of perishable property could be made default, although in good faith, and " on obtaining an order for that pur- believing it to belong to the intes- pose," is omitted in the Code enact- tate's estate, he is liable to an action ment. (§ 2665.) But the same pro- therefor. (Levin v. Russell, 42 N. Y. viso in the original statute, relating 251.) Where he is appointed succes- to the public administrator of New sor to a temporary administrator, and York county (2 R. S. 121, § 15), was the latter's bond has been assigned to preserved in the Consolidation Act of him by the surrogate, he may bring 1882, § 226, and was continued an action thereon, in his own name, in L. 1898, c. 230, § 11. By the 309 Public Administeatoes. §377. is necessary at all) to sell a lot of household furniture, in order to save the cost of storage.® And in certain cases, where there is danger of the waste or embezzlement of the estate, the surro- gate may authorize him to take charge of and secure the effects, even though there is resident in the county a person who is en- titled to administer.'' In order to obtain the power to pay debts, and dispose of the surplus, he must have letters of administration granted to him, or must file the affidavit, the filing of which, in certain minor cases, is equivalent to the issue of letters. When he has acquired this authority, he acts by virtue of his letters, not merely by virtue of his office,® and is subject, in general, to all the duties and obligations of an ordinary administrator.® § 377. Authority, how evidenced. — Tn all cases of death occur- ring under such circumstances that the public administrator may ultimately become entitled to be fully invested with the rights and powers of administrator of the estate, intestacy is presumed until a will is proved and letters testamentary are issued thereon.'"' And where letters are issued to him, such letters, the record thereof, and a duly certified copy of such record, are made con- elusive evidence of his authority to act, in all cases within the statute.-'* original statute (2 R. S. 129, § 50), the county treasurer was entitled to the same process to discover concealed and withheld effects, as the public ad- ministrator of New York; by section 2665, as amended 1893, he is entitled to take the same proceedings as a gen- eral administrator, that is, under Co. Civ. Proc, § 2707, as amended 1893. The public administrator in New York, however, when acting by virtue of his office merely, must proceed un- der 2 R. S. 120, i 8 et seg.; L. 1882, e. 410, §§ 222-224. See L. 1898, c. 230, § 7. 6 Public Adm'r v. Burdell, 4 Bradf. 252. 7 2 R. S. 119, §§ 6, 7; L. 1882, c. 410, § 221; L. 1898, c. 230, § 6 [re- lating to public administrator of New York]; and 2 R. S. 129, § 49; Co. Civ. Proc, § 2665, as amended 1893 [relating to county treasurers]. 8 Miller v. Franklin Bank, 1 Paige, 444. 9 The mode of obtaining the general power of administration is different in the county of New York, and the other counties, and will be stated in connection with the powers and duties of the public administrators in those places. 10 2 R. S. 118, § 4; L. 1882, c. 410, § 219; L. 1898, c. 230, § 4 [relat- ing to New York public administra- tor] ; and 2 R. S. 129, § 47 ; Co. Civ. Proc, § 2665, as amended 1893 [re- lating to county treasurers]. It is difficult to see how intestacy can be presumed after a will is proved, al- though letters testamentary should never issue, e. g., where letters of ad- ministration with the will annexed are granted. Another peculiarity of the statute may also be noticed in this connection, viz., that although the au- thority conferred upon the public ad- ministrator by the Revised Statutes is expressly stated to relate to the estates of " persons dying intestate " (2 R. S. 118, § 34; id. 129, § 47), they in terms provide for issuing to him, in certain eases, letters of admin- istration with the will annexed (2 R. S. 122, § 23; id. 131, § 61 ; L. 1898, c. 230, § 15), as does also Co. Civ. Proc, § 2643, as amended 1881. Mat- ter of Blank (2 Redf. 443), and Mat- ter of Hanover (3 id. 91), are rulings under the Revised Statutes. 112 R. S. 122, § 23; L. ISST o 410, § 230; 2 R. S. 131, § 63; L. 1898 c 230, § 15 ; Co. Civ. Proc, § 2666, as amended 1893. §§ 378-380. Public Administkatoes. 310 § 378. Application for letters in right of priority. — Public ad- ministrators are included in the enumeration of those who have a right, in the order of their priority, to a grant of letters of ad- ministration upon intestates' estates. In New York county the public administrator has a preference for appointment, after the next of kin^ and after the executor or administrator of a sole legatee named in a will, etc., over creditors and all other persons ; in other counties (except Kings), the county treasurer has the preference, next after creditors, over all other persons. '^^ In Kings county, the public administrator has the " prior right and authority," after the next of kin.^^ § 379. Authority, how superseded. — ■ When his power to act is superseded in the instances prescribed by statute — e. g., by the production to him of letters granted to any other person upon the same estate — he must deliver to the person producing such let- ters all the assets of the deceased in his hands, after deducting his commissions and expenses.^* But the fact that his powers have ceased, or that he has been superseded, does not cause any suit commenced by him to abate ; but the same may be continued by the person who succeeds to his powers in regard to the estate.'^^ § 380. Annual statement. — Every public administrator is re- quired, under penalty of fine and forfeiture of office, to publish annually a statement, showing among other things, each case in which he shall have taken charge of and collected any effects, or in which he shall have administered on any estate during the pre- ceding year, with the name of the deceased, the place of his resi- dence at the time of his death, if the same be known, and the place from which he came, if he was not a resident of this State at the time of his death.^^ Having taken this general view of the statutes and principles applicable to the functions of public 12 Co. Civ. Proc, § 2660, as amended § 237; 2 R. S. 132, § 67; L. 1898, c. 1893. See § 344, ante. The public ad- 230, § 22; Co. Civ. Proc, § 2667, as ministrator may be appointed admin- amended 1893. istrator de bonis non. (Ketohum v. 15 Id.; L. 1898, c. 230, § 23. After Morrell, 2 N. Y. Leg. Obs. 58.) In he is invested with the_ powers of an New York city, if the relatives having administrator, he is within the pro- a prior right to letters make no appli- visions of Co. Civ. Proc, §§ 1828. 766. cation, within a reasonable time, it is 16 2 R. S. 127, §§ 39, 40; L. 1882, the duty of the public administrator c. 410, § 242; L. 1898, c. 230, §§ 27, to apply for letters. (Matter of Page, 28 [relating to K Y. public adm'r] ; 107 N. Y. 266.) and 2 R. S. 132, §§ 72. 7S; Co. Civ. 13 Co. Civ. Proc, § 2669. See § 401, Proc, § 2668, as amended 1893 [relat- post; Matter of Gilchrist, 37 Misc. ing to county treasurers] ; 2 R. S. 132, 543; 75 N. Y. Supp. 1055. §§ 72, 73. W2 R. S. 125, § 33; L. 1882, c 410, 311 Public Administeatoes. § 381. administrators, we may pass to the consideration of their author- ity and proceedings in particular counties. TITLE SECOISTD. THE COUNTY TEEASUEEE AS PUBLIC ADMINISTEATOE. § 381. Powers of treasurer before grant of letters. — In counties other than New York, Kings, and Richmond, the duties of public administrator devolve upon the county treasurer,^^ who, by virtue of his office, is empowered to collect and take charge of the assets of every person dying intestate, where such assets shall amount to one hundred dollars or more, upon which no letters of admin- istration have been granted, in the following cases : " 1. When such persons leave assets in the county of the treasurer, and there is no widow or relative in the county, entitled or competent to take letters of administration on the estate. 2. When assets of any such person, after his death, come into the county of the treasurer, and there is no person in the county entitled, or competent, to take administration of the estate." In Richmond county the pub- lic administrator possesses the powers and jurisdiction, and is subject to the liabilities of a county treasurer.-'^ Under the Code, therefore, he has no power to act as public administrator in any case in which the public administrator in the city of ~Sew York has jurisdiction.-'® If (or although) there is a widow or a relative in the county who is entitled to administration, the surrogate may authorize the county treasurer to seize and secure the effects, upon proof that there are creditors or relatives of the deceased, residing more than one hundred miles distant from the residence of such surrogate, who are interested in the distribution of the estate, and that the effects of the deceased are in danger of waste or embezzle- ment; and the granting of such order vests him with all the powers which he has, by virtue of his office, as above.^" Until letters of administration are granted to him, the county treasurer cannot proceed further than to pay the funeral charges of the deceased, collect and secure the effects, to sell such things as are perishable and defray the expenses of the proceedings required IT In those counties wherein the of- 18 L. 1899, e. 486. fiee of county treasurer has been abol- 19 Co. Civ. Proc, § 2665, as amended ished, the statute provides for the ap- 1893 ; adopting, with verbal changes, 2 pointment of a public administrator E.. S. 129, § 47. See Sutton v. Public who shall possess all the powers of a Adm'r, 4 Dem. 33. county treasurer relating to the office 20 Co. Civ. Proc, § 2665, as amended of public administrator. (L. 1900, c 1893 (2 K. S. 129, § 49). 501.) § 382. Public Abministeatoes. 312 by law.^^ Upon taking possession, he must cause an inventory to be made by appraisers appointed by the surrogate, executed by him and filed with the surrogate, within ten days after he takes charge, unless the surrogate, for good cause shown, extends the time ten days longer. For neglect to make the return within the time prescribed, he will forfeit one hundred dollars for the use of the poor of his county, and will forfeit his office. ^^ § 382. Granting letters to treasurer, or other person When the inventory is returned, the county treasurer must give the bond required by law to be given by a temporary administrator ap- pointed by a surrogate, with such sureties and in such penalty as the surrogate approves, and the surrogate must then issue letters to such county treasurer, authorizing him to collect and preserve the estate of the deceased. " The surrogate must immediately thereafter cause notice thereof to be published once in each week for three months, in a newspaper printed in his county, and in the official State paper, requiring all persons claiming a right to ad- minister on such estate to appear and interpose such claim be- fore the surrogate within a certain time to be therein specified, not less than six months after the first publication of such notice in the official State paper. If before such time any person entitled to administer appears and claims the same, the surrogate must cause ten days' notice of such claim to be served on the county treasurer, and may, at the expiration of such time, grant letters to such person unless it appear that he is not entitled thereto ; and thereon the publication of the notice must be discontinued. At the time appointed, if letters have not been previously granted, any person entitled to administration on such estate and duly qualified and competent, who appears and claims the same, shall be entitled to letters testamentary or of administration, as the case may be." ^ " If letters testamentary or of administration be not granted by the surrogate to any person at or before the expiration of the time specified in the notice, then, unless it appear that such let- ters have already been granted by some other surrogate, the surro- gate must grant letters of administration thereon to the county treasurer as in other cases, on receiving the like bond, with the like sureties, and in the like penalty, as administrators are re- quired to give. The county treasurer must accept of such letters 21 Id., § 2666 (2 R. S. 131, § 65). 23 Co. Civ. Proc, § 2666, as amended 22 Co. Civ. Proc, § 266,5, as amended 1893 (2 R. S. 130, §§ 57-59). 1893 (2 R. S. 130, §§ 52-55). 313 Public Administeatoks. §§ 383-385. and give the bond above required. Such letters and the record thereof, and a transcript of such record, duly certified, are con- clusive evidence of the authority of the county treasurer in all cases in which the surrogate has jurisdiction under this article. The surrogate must immediately transmit to the comptroller a certified copy of all such letters granted by him to the county treasurer, the expense of which must be paid to him out of the State treasury, on the warrant of the comptroller." ^* § 383. Powers and duties under letters — Upon receiving letters of administration, the county treasurer becomes vested with all the powers and rights of other administrators, and subject to the same duties and obligations, except as otherwise provided by the statute.^^ He acts in each case by virtue of his letters chiefly ; and he is subject to the supervision of the surrogate in the same manner and to the same extent as other administrators, except so far as the provisions of the statute may exclude that responsibility, or may prescribe a wholly inconsistent rule.^ § 384. Accounting and compensation — He must account, and may be compelled to account, in the same manner as other ad- ministrators, at the instance of any person interested, or of the attorney-general, or the comptroller.^^ On the settlement of his accounts, he is allowed for his expenses as other administrators, and double their commissions. The balance of moneys in his hands must be paid into the State treasury for the benefit of such per- sons as shall be entitled thereto.^ § 385. Superseding treasurer's letters. — Upon letters being granted to an authorized claimant, the authority of the county treasurer ceases, and he must deliver to the person appointed, the assets in his hands, after deducting certain expenses, and a reasonable compensation for his services, not exceeding three dol- lars for each day necessarily employed, to be allowed and taxed 24 Co. Civ. Proc, § 2666 (2 R. S. 28 Co. Civ. Proc, § 2668, as amended 131, §§ 61-64). 1893 (2 R. S. 132, § 71). The origi- 25 Co. Civ. Proc, § 2668, as amended nal statute (2 R. S. 133, § 74, L. 1877, 1893. c. 456), now repealed, provided that 26 Thus his appointment as adminis- any person claiming any moneys that trator, in a particular case, is subject have been paid into the State treasury to revocation, on the ground that it as so provided, might petition the Su- was obtained upon a false suggestion, preme Court that such moneys be paid or under mistake of fact, as would be to him. No such provision is in the the appointment of any other adminis- present statute, though the remedy un- trator. ( Proctor v. Wanmaker, 1 Barb, doubtedly is available, on general Ch. 302.) principles. 27 Co. Civ. Proc, i 2668, as amended 1893 (2 R. S. 132, §§ 69, 70). § 386. Public Administeatoes. 314 by the surrogate.^® The statute provides that the " powers and authority of the county treasurer, in relation to the estate of any deceased person, shall be superseded — 1. By the production of any letters testamentary, granted before or subsequently to his becoming vested with the authority of an administrator, on the same estate ; 2. By the production of any letters of administration granted to any other person, on the same estate, before the said county treasurer became vested with the powers of an adminis- trator thereon ; 3. By the production of letters of administration, issued by the surrogate of a county in this State, of which the de- ceased was a resident at the time of his death, granted after the county treasurer became vested with the powers of an adminis- trator upon the estate of such deceased." On his authority being so superseded, he must deliver, to the one producing letters, all the assets in his hands, after deducting his expenses and allowance. All acts done by the county treasurer in good faith, previous to the time when his authority was superseded, are declared valid, and all suits commenced by him may be continued by his sue- cesser.''" TITLE THIRD. PUBLIC ADMINISTEATOES IIT NEW YOEK AND KINGS. § 386. Public administrator in New York county. — Previous to 1895, the public administrator in the city of N^ew York was chief officer of a bureau in the law department of the corporation.^^ In that year the bureau was made independent of the law depart- ment, and his appointment and removal vested in the surrogates of the county. ^^ Upon the enactment of the new city charter, he was continued as a count/ officer.^^ He receives a regular salary,^* and is required to pay all commissions which he receives into the city treasury, and to make monthly reports to the comptroller, which must be published in the City Record.^^ Although a county officer, he is answerable for his acts to the municipal corporation of the city, which is made the conservator of the effects of strangers who die within the city or port, or who die abroad, leaving effects therein, and where no relative or executor appears to administer 29 Co. Civ. Proc, § 2666, as amended power to appoint and remove his sub- 1893 (2 R. S. 131, § 60). ordinates. 30 Co. Civ. Proc, § 2667, as amended asL. 1897, c. 378, § 1585; L. 1901, 1893 (2 E. S. 131, §§ 66-68). c. 466, § 1585. 31 L. 1873, c. 335, § 38; L. 1882, c. 34 L. 1898, c. 230, § 31. 410, § 216. 35 L. 1873, c. 335, § 38; L. 1882, c. 32 L. 1895, c. 827; L. 1898, c. 230, 410, § 216; L. 1898, c. 230, § 3. § 2. The public administrator has 315 Public Administrators. § 387. sucli effects.^® To compensate the corporation for undertaking this duty, in addition to the commissions allowed, the public ad- ministrator, upon the settlement of his accounts, is required to pay the balance of the fund into the city treasury, where it re- mains until the rightful owner appears, and such balance may be used by the city without the payment of interest. ^^ The corpora- tion is responsible for his official acts.^* § 387. Powers in right of office — His powers and duties differ in some respects from those of the public administrator of Kings county, and those of the county treasurers of other counties when acting as public administrators. The powers which he has by virtue of his office, and before any letters of administration have been granted to him, are declared by the statute as follows : " In the right of his office, he shall have authority to collect and take charge of the goods, chattels, personal estate, and debts, of persons dying intestate, and for that purpose, to maintain such suits as public administrator, as any executor might by law, in the following cases : 1. Whenever any person shall die intestate, either within this State or out of it, leaving any goods, chattels, or effects within the county of New York ; 2. Whenever any goods, chattels, or effects of any person who shall have died intestate, shall arrive within the county of Ifew York after his death; 3. Whenever any person, coming from any place out of this State, in a vessel bound to the port of New York, and arriving at the quarantine, near the city of New York, shall there die intestate, and shall leave any effects either at the said quarantine or in the county of New York, or elsewhere ; 4. Whenever any effects of any such person so arriving and dying intestate at the said quarantine, shall, after his death, arrive either at the said quarantine or within the county of New York; 5. Whenever any person, coming from any place out of this State in a vessel bound to the port of New York, shall die intestate on his passage, and any of his effects shall arrive at the said quarantine." ^^ 36 See Suarez v. Mayor, 2 Sandf. Ch. statutes, see 2 R. S. 118, § 4; L. 1882 ■ 193-200. c. 410, § 219. But the powers con- 37 2 R. S. 125, § 35, subd. 14; id. ferred by this section do not extend 127, § 43; L. 1882, e. 410, § 239, subd. his authority to the estate of any per- 14, and id., § 244; L. 1898, c. 230, son not a citizen of this State, dying- § 24, subds. 14, 16; Suarez v. Mayor, within or outside of this State, or on supra; Sullivan v. Herrera, 7 Hun, board of any foreign vessel within the 309. harbor of New York, unless. " 1. Such 38 2 R. S. 127, §§ 42, 43; L. 1882, c. person shall have landed within the 410, § 244; L. 1898, c. 230, § 29. See county of New York, or at the quar- § 398, post. antine near the said county; or, 2. 39 L. 1898, c. 230, § 4. For previous Unless the effects of auch person, or §§388, 389. Public Administeatoes. 316 The public administrator has like power in the foregoing cases where an executor named in a will refuses or neglects to act or has died.« He also has power, by virtue of his office, to receive and sell at public auction, all property (except cash), not exceeding twenty dollars in value, which may be delivered to him, of persons dying, and reported to him by any other person, when the same is un- claimed for a period of three months; the proceeds of such sale must be paid into the city treasury.*^ § 388. Information of death of strangers. — In order that he may have full information in regard to those who die intestate, pro- vision is made for the report to him by keepers of hotels and board- ing and lodging-houses, of the names of strangers dying in their houses ; by coroners, of the names of those on whom they hold inquests, and by undertakers of those whom they bury; and a failure to comply with this requirement is made punishable by fine or imprisonment. It is his duty to send a copy of this stat- ute to all boarding and lodging-houses.*^ In order to aid him in securing the property which is committed to his custody, it is made the duty of the health officer of the port of iRew York to take charge of and secure all decedent's effects at quarantine, and to account therefor to the public administrator;*^ although this is modified by the provision allowing the board of health, etc., to re- move from the city to quarantine, or destroy, property in certain cases.** § 389. Where letters may be dispensed with. — In cases where the property does not exceed in value one hundred dollars, the public administrator is required immediately to give notice, in the mode prescribed by the statute, that the effects of the deceased in his some part of them, shall have been so or consular officers." (L. 1898, c. 230, landed; and when any effects of such § 5; former statutes, 2 R. S. 119, § 5; person shall have been so landed, the L. 1882, c. 410, § 220.) See 2 R. S. authority of the public administrator 74, § 27 (now Co. Civ. Proc, § 2660) ; shall extend to such effects only; or. Matter of Page, 107 N. Y. 266. 3. Unless the decedent died leaving «> L. 1898, c. 230, § 4, last clause, personal property within the county *l L. 1898, c. 230, § 18, in part, of New York; or leaving personal « 2 R. S. 128, §§ 45, 46; L. 1866, c. property which has, since his death, 802, § 1; L. 1882, c. 410, §§ 246, 247; . come into the county, and remains un- L. 1898, c. 230, § 33. administered." And he has " no au- *s L. 1898, c. 230, § 10 ; former stat- thority to collect and take charge of utes, 2 R. S. 121, § 14; L. 1863, p. the wages and effects of seamen dying 580, c. 358, § 27, subd. 4, as amended on board the vessels of a foreign by L. 1865, p. 1207, c. 592, § 5; L. country, whose laws intrust the cus- 1882, c. 410, § 225. tody and disposition of such wages ** Id. and L. 1856, c. 147, § 4. and effects to their respective consuls 317 Public Administeatoes. § 390. Lands will be administered and disposed of by him according to law, unless the same be claimed by some lawful executor or ad- ministrator of the deceased, by a certain day. Notice to the widow and relatives of the deceased must be given. If, at the time appointed in the notice, no claim has been made as therein required, the public administrator, upon filing in the surrogate's office an affidavit stating the value of the property, the giving of notice, the failure of any claimant to appear, and that he has taken upon himself the administration of the estate of the de- ceased, becomes thereby vested with all the rights and powers, and subject to all the duties of an administrator of the estate of the deceased, in the same manner as if letters of administra- tion had been granted. The affidavit, or a certified copy, is presumptive evidence of the facts it contains, and that adminis- tration of the deceased has been committed to the public admin- istrator according to law.*^ § 390. Powers before grant of letters. — Until vested with the powers of an administrator by the issuing of letters to him, or the filing of an affidavit as above, he has no power to proceed in the administration of the estate, further than to pay funeral charges, and to do such acts as are necessary for the collection and preservation of the estate, and to clothe himself with the full powers of an administrator.*^ He may, however, at any time, advance to any relative such a portion of his share of the estate to which he may be entitled as in the opinion of the sur- rogate may be necessary for the support of such relative, not exceeding, however, fifty dollars.*' Although the public admin- istrator cannot interfere with the estate, where he has notice that any one who is entitled to a distributive share is a resident of the city of ITew York, the surrogate may, nevertheless, au- thorize his taking charge thereof, upon it appearing by affidavit that the effects of the deceased are in danger of waste or em- bezzlement, or that for any other reason it would be for the benefit of the estate to have the same or any part thereof seized and secured.*^ After grant of letters, the public administrator is in charge of tlie estate, not virtute officii, but by investiture of letters of ad- *5 2 E. S. 123, §§ 24-27; L. 1882, e. *7 2 R. S. 127, § 38; L. 1882, c. 410, 410, §§ 231, 232; L. 1898, e. 230, §§ 16, § 241; L. 1898, c. 230, § 26. 17. 48 2 R. S. 119, §§ 6, 7; L. 1882, c. 46 2 R. S. 123, § 28; L. 1882, c. 410, 410, § 221; L. 1898, c. 230, § 6. § 233; L. 1898, c. 230, § 18, in part. § 391. Public Administeatoes. 318 ministration issued to him by the surrogate. His proceeding for the discovery of property of his intestate's estate claimed to be concealed or withheld is then fixed by the Code, and not by the Consolidation Act.^* § 391. Letters of administration, when to be applied for. — In case the property of which he is authorized to take charge ex- ceeds in value one hundred dollars, the public administrator must immediately give notice of his intention to apply for letters of administration; and the notice (the contents of which are pre- scribed by the statute) must be served on the widow and relatives entitled to share in the estate.^" In case the widow and relatives of the deceased cannot be found in the city of ITew York, the service may be made by publication, in the cases and manner directed by the statute.^'^ If the deceased was a foreigner, un- naturalized, or one who had never taken any step for that pur- pose, the notice must be served on the consul of the nation of which the deceased was a citizen, if there be one in the city of New York, or upon his deputy, in the same manner as upon the relatives of the deceased.^^ Notice need be given only to such relatives of the intestate within the city as are actually entitled to .a distributive share of his personal estate. The court ob- tains jurisdiction by the presentation of the application and by the existence of the jurisdictional facts, and failure to give no- tice of such application to any party whose right to letters was superior to the applicant's, and who was entitled to notice, is a mere irregularity, which does not vitiate the proceedings, and of which advantage can be taken only by the party failing to receive notice.^* The facts upon which the jurisdiction depends are the death of the decedent, his intestacy, and the presence 49 Public Adm'r v. Elias, 4 Dem. his representative may appear in per- 139. The proceeding for the dis- son or by attorney, on behalf of any covery of concealed effects which the person interested who is then a resi- public administrator is authorized to dent of the country which such consul institute, before he applies for letters, represents, and citations may be is by a subpcena, and is regulated by served upon him on behalf of such L. 1898, c. 230, §§ 7, 8, and 9 (former nonresident, but infants must be rep- statutes, 2 R. S. 120, §§ 8-13; L. 1882, resented by a special or general guard- e. 410, §§ 222-224). ian. (lb.) so See Matter of Page, 107 N. Y. B3 Matter of Brewster, 5 Dem. 259. 266. It was held, further, in that ease that 512 R. S. 121, §§ 16, 17; L. 1882, notice of the application need only be c, 410, § 227 ; L. 1898, c. 230, § 12. given to such relatives within the city 52 2 R. S. 124, § 29; L. 1882, c. 410, as are actually entitled to a dis- § 234; L. 1898, c. 230, § 19. In any tributive share of the intestate's es- aetion or proceeding affecting the ad- tate. ministration of the estate, a consul or 319 Public AoiiiNiSTKATOBS. §§ 392-394. in the surrogate's county, at the time of his death, or after- ward, of effects belonging to his estate.^* § 392. Hearing upon application At the time of the applica- tion, any one interested in the estate of the deceased may appear and contest the granting of letters to him, and he is entitled to compulsory process for the attendance of witnesses. If, upon such application, it appears that the deceased has disposed of his personal property by will, and therein appointed an executor com- petent and qualified to act, or if there is a widow or any relative of the deceased entitled to a share in the estate, who is willing, competent, and qualified to act, the application will be denied, and letters will be granted to such person;^* otherwise they will be issued to the public administrator, without his being required to file any further or other official oath or bond.^® § 393. Cessation of authority on denial of application. — Upon the granting of letters testamentary or of administration to any other person, the authority of the public administrator ceases, and every order granted to him in relation to the estate is re- voked ;^^ and he must turn over to the executor or administrator thereby appointed, the effects of the deceased in his hands. If, at any time, before he becomes vested -with the power of admin- istering, any executor or administrator appears and produces let- ters testamentary or of administration, he is entitled to receive the property in the public administrator's hands, after deducting his expenses as taxed and allowed.^* § 394. Superseding letters. — The cases in which the powers and authority of the public administrator, in relation to the estate of the deceased, may be superseded, are enumerated as follows: " 1. Where letters testamentary shall be granted to any execu- tor 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 54 Matter of Brewster, supra. Wheth- er at the time of his death decedent was or was not a citizen of this State is irrelevant to the inquiry respecting the surrogate's jurisdiction. The fact that the proceeding was instituted by a petition made upon information and belief, does not affect the regularity of the proceedings, (lb,) 55 2 R. S. 122, §§ 18, 19, 20 ; L. 1882, e. 410, § 228; L. 1898, c. 230, §13. 56 L. 1882, c. 410, § 230; L. 1898, c. 230, § 15. 67 lb. 58 2 R. S. 124, § 30; L. 1882 , c. 410, § 235; L. 1898, c. 230, § 20. 1 395. Public Administkatoes. 320 vested with the powers of an administrator upon the same es- tate; 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 administrator became vested with the powers of an administrator upon such estate." ®^ Any relative of the deceased, entitled to administer, upon mak- ing application to the surrogate within three months,®" after the public administrator has become vested with power to admin- ister, may have letters of administration granted to him, upon proof (1) that he did not reside in the county of New York at the time of the death of the intestate; or, (2) that, residing in the said county, no notice was served on him as required by the statute. And upon his giving notice to the public adminis- trator of the granting of such letters, and producing to him duly attested copies thereof, he is entitled to a delivery of the prop- erty of the deceased in the hands of the public administrator, after deducting his charges and commissions.®^ But no suit or proceeding that shall have been commenced by him shall abate on account of his authority having ceased for any cause; but the same may be continued by his successor.®^ §395. General statutory powers under letters The rights, powers, and obligations of the public administrator, upon his be- coming vested with the right to administer upon any estate, are specifically set forth in the statute. Space will not permit their statement in the precise phraseology of the act, but, in sub- stance, they are as follows : 1. He shall have all the rights, powers, and authority given by law to any administrator except as qualified by the provisions of the statute. 2. He may sue and be sued. 3. He shall make and return an inventory in all cases and in the same manner as is required by law of other administrators and the same proceedings may be had to compel such return. 4. He may sell the property either at public auction, after pub- lishing notice thereof three days daily, or at private sale, or in such other manner as the surrogate may direct. 5. He shall sell public stock, or stock or bonds of any Incorporated company, or other security, within two months after the issue of letters, unless he is directed by the surrogate to hold the same for a 59 2 E. S. 124, § 31 ; L. 1882, c. 410, late. (Tuohay v. Public Adm'r, 2 Dem. § 236; L. 1898, c. 230, § 21. 412.) 60 Consequently, an application by a si L. 1898, o. 230, § 22 (former stat- relative to supersede a public adminis- utes, 2 E. S. 125, §§ 32, 33; L. 1892, trator. made more than three months c. 410, § 237). after the latter became vested, is too ezL. 1898, c. 230, § 23. 321 Public Administeatoes. § 395. longer period, or unless the same have no market value, in which case he may hold them until his accounting or until a sale is directed. 6. In all cases where the estate, after the payment of funeral expenses, is less than fifty dollars, he may make distri- bution, without notice to creditors or legatees to present their respective claims; in other cases, he shall give such notice by publication once in each week for twelve weeks, requiring cred- itors and persons interested, to present their claims within twelve weeks from the date of the first notice; if a suit be brought by any creditor or person interested, on a claim not presented within six months from the date of his letters, he shall not be charge- able with any money he may have paid in satisfaction of lawful claims or legacies or in making distribution before such suit was brought, provided he shall have given such notice. 7. He may proceed, as other administrators, to discover assets and obtain delivery and possession of same ; and the surrogate may, although an answer be filed as provided in section 2709 of the Code, direct the person cited to be examined as to any knowledge he may have as to the property sought to be discovered. 8. He shall adjust and pay all demands against the estate and may refer all disputes respecting such demands. 9. Six months after he shall become vested vsdth the right to administer, and except in the cases mentioned in subdivision 16, he shall account to the sur- rogate for all assets received by him and for the application thereof; and such accounting may be compelled as in the case of other administrators. 10. He may, in his discretion, after the expiration of six months, have a final settlement of his ac- counts. 11. In the settlement of his accounts he shall not be allowed for any payments made by him, unless, in addition to the other vouchers therefor, it shall appear that the same was made on a cheek, signed by himself, upon the bank in which his deposits are required to be made, except that he may be allowed for current expenses authorized by law, expenses of administra- tion, claims of creditors, distributive shares and legacies not ex- ceeding twenty dollars. 12. Upon the settlement of his accounts, he shall not be allowed for any demand he may have against the es- tate, unless such demand was specified in writing to the surrogate at the time of applying for letters, or of filingthe affidavit required to vest him with the rights of administrator, or unless it appears that such demand existed previous to the death of the intestate. 13. He shall pay all legacies and shares according to the decree of the surrogate; but he may, in his discretion, pay a legacy or 21 § 396. Public Administeatoss. 322 share of an infant, having no general guardian appointed by a court of this State, to his father, or, if his father be dead, to his mother; and if both be dead, to the person with whom the infant resides, for the use of such infant, but the aggregate of such payments shall not exceed two hundred and fifty dol- lars. 14. The balance of any moneys in his hands, on the adjustment of his accounts, shall be paid into the city treas- ury, and he shall transfer to the city corporation all se- curities belonging to the estate then unsold. 15. When- ever in the performance of his duty he shall take an appeal from any decision affecting the estate, an undertaking is not necessary to perfect the appeal, or stay execution. 16. When the estate is not claimed by creditors or other persons interested for one year after the estate passes into his possession, and, af- ter paying the debts and expenses of administration, the balance is less than two hundred and fifty dollars, he shall pay such residue unclaimed into the city treasury; the rights and remedies of all persons interested in the estate to com- pel an accounting by him are not affected, but the decree of distribution shall provide that payments therein directed, shall be made by the comptroller. 17. Where the estate in his hands is claimed by creditors or other persons in- terested, and, after paying the debts and expenses of ad- ministration, the balance is less than two hundred and fifty dollars, service of the citation upon his accounting shall be made upon those persons only whose places of residence are known; the order for the service of the citation by publication upon nonresidents shall direct the deposit of copies of the citation and of said order in the post-office at least forty days before the return day, directed to the persons to be served at the places specified in such order; he shall pay the shares of unknown persons, or of persons whose residence is unknown, into the city treasury, but the right of any\persons to compel an ac- counting is not affected thereby, but the decree of distribution shall direct payments to be made by the comptroller.^ § 396. Deposit of moneys. — He is required to deposit all moneys by him collected and received, except a sum for current expenses 63 L. 1898, c. 230, § 24 (former stat- Court, under Co. Civ. Proc, § 2717. utes, 2 R. S. 125, § 35; as amended L. (Matter of Conway, 5 Dem. 290.) 1882, c. 410, § 239). The money so Such application must, however, be deposited may be obtained by any per- preceded by claim and demand, under son entitled thereto, whether in his section 261 of the City Charter. (Mat- own right, or as an assignee, by means ter of Rooncy, 26 Misc. 106 ; 56 N. Y. of a, proceeding in the Surrogate's Supp. 855.) 323 Public Administkatoes. § 397. not exceeding twenty dollars in any one case, within two days after the receipt thereof, in a bank designated by law, to the credit of himself, and to be drawn out upon his OAvn check.''* Where the bank allows interest on moneys so deposited, it be- longs to the next of kin, on the distribution of the estate, and not to the city. But after the settlement of the administrator's account, and the payment of the balance remaining in his hands into the city treasury, to be there preserved awaiting an applica- tion for it by its lawful but undiscovered owner, no interest on such balance is chargeable against the citj.^ The object of the provision requiring such a deposit in a designated bank is to secure the funds against loss through conversion by the administrator, or his indiscreet selection of a bank. But where only the bank- book representing a deposit, in a savings bank, of moneys be- longing to the decedent, came to the hands of the public admin- istrator, the money was held not to be collected and received by him within the meaning of the statute. ®® , § 397. Commissions and expenses. — If the public administrator's application for letters is denied, he is entitled nevertheless to re- tain, out of the effects in his hands,- certain necessary expenses which have been incurred, the amount thereof to be taxed and allowed by the surrogate, but no commissions are allowed him. And if there are no effects of the deceased in his hands to pay such expenses, and they are allowed and taxed, then they are to be paid by the executor or administrator, and are given a preference over all other claims, except funeral charges, and he is allowed to maintain an action therefor in his own name.'''' In case letters were granted to him, he is entitled to retain, on the settlement of his accounts, in addition to his expenses, a commis- sion of five per cent, on all sums not exceeding twenty-five hun- dred dollars, and two and one-half per cent, on all sums in ex- cess thereof ; and such commissions may be retained in preference to any debt or claim, except funeral charges.^^ 64 L. 1898, 0. 230, § 25 (former ?tat- troller, in cases where by law the pub- utes, 2 R. S. 126, §§ 36, 37; L. 1882, lie administrator is required to pay c. 410, §240). The disposal of moneys out moneys. (Lockhart v. Public in his hands is a subject upon which Adm'r, 4 Bradf. 21.) the surrogate may direct, as in the <55 Sullivan v. Herrera, 7 Hun, 309. cases of other administrators, not- 66 Sheerin v. Public Adm'r, 2 Redf. withstanding the provision in case of 421. the public administrator of New York, 67 2 R. S. 122, S§ 21, 22; L. 1882, c. that moneys shall be drawn from his 410; L. 1898, c. 230, § 14. bank only on the joint check of the 68 2 R. S. 118, § 3; L. 1882, e. 410, public administrator and the comp- § 218 ; L. 1898, c. 230, § 3, in part. §§ 398-400. Public Administeatobs. 324 § 398. City corporation liable for acts of public administrator. — The corporation of Sew York city, as above stated, is responsible for the faithful performance of his duties, and the application of all moneys received by him, and for stock transferred, dividends thereon received, and moneys paid into the city treasury by him, or which should be so transferred or paid in by him, after de- ducting his commissions, but not for any interest on such moneys or dividends on stock. And the persons aggrieved have the same remedies against the corporation as they vs^ould have against any executor.®^ The corporation is liable not as a surety and col- laterally, but primarily and in the first instance, for the due and faithful performance of all the duties of his office; and, there- fore, where the public administrator, without reasonable cause therefor, brought an action for an alleged conversion of the goods of the deceased, and was defeated, and a judgment for costs ob- tained against him, it was held that the party in whose favor it was obtained could maintain an action of debt on it against the corporation.™ The intent of the statute is to give the aggrieved person a direct remedy by action against the city, and not to require him to seek an accounting in the Surrogate's Court.''' § 399. His personal liability — This responsibility of the corpo- ration for his acts does not take away his personal liability, and he has been, held liable personally for the wrongful taking or detention of personal property of a stranger, although he had acted in Ms official capacity and in good faith, and in the belief that the property belonged to the intestate at the time of his death.'^ In case of his death, removal or resignation, the papers, money, and effects are to be delivered to his successor in office, without the reissuance of any letters to him, and such delivery may be compelled in the same way as in the case of other public officers.'^* § 400. Public administrator in Kings county The statute pro- vides for the appointment of a public administrator in the county of Kings: and declares "that all provisions of law conferring jurisdiction, authority, or power on, or otherwise relating to, the office of public administrator of the city of 'New York, and to the office of public administrator in the several counties of this State, 69 2 K. S. 127, §§ 42, 43; L. 1882, c. 72 Levin v. Russell, 42 N. Y. 251. 410, § 244; L. 1898, c. 230, § 29. 73 2 R. S. 128, § 44; L. 1882, e. 410, 70 Matthews v. Mayor, 1 Sandf. 132. § 245; L. 1898, c. 230, § 32. 71 Glover v. Mayor, 7 Hun, 232. 325 Public Administratoes. §§ 401, 402. so far as applicable, apply to and are conferred upon the office hereby created." '* §401. His authority. — In ISTew York county, as will have been noticed, the statute specifies certain cases of intestacy in which the public administrator has, in right of his office, power to act at once as a collector and conservator of decedent's effects, while provision is made for confirming or superseding his powers ac- cording to facts subsequently appearing. But in Kings county, absolute and sole authority is conferred upon the public admin- istrator, not only to collect and secure, but also to administer upon, an intestate's estate in enumerated cases, unless certain relatives entitled to share therein, and entitled and willing to ad- niinisler thereupon, reside in the State. It is enacted, that "he shall have the prior right and authority to collect, take charge of and administer upon the goods, chattels, personal estate, and debts of persons dying intestate,^® and for that purpose to maintain suits as such public administrator, as any executor or adminis- trator might by law, in the following cases: 1. Whenever stich ])erson shall die leaving any assets or effects in the county of Kings, and there is no widow, husband, or next of kin entitled to a distribiitive share in the estate of such iMestate, resident in the State, entitled, competent, or willing to take out letters of administration on such estate. 2. Whenever assets or effects of any person dying intestate shall, after his death^ come into the county of Kings, and there is no such person entitled, competent, or willing to take administration of the estate. In such cases, intestacy shall be presumed until a will is proven, and letters tes- tamentary issued thereon." ''^ § 402. His commissions — He is allowed the commissions of ex- ecutors and administrators, besides the necessary expenses in- curred by him in administering the estate. The surrogate may also issue letters of temporary administration to him without special security. 77 74 Co. Civ. Proe., § 2669, as amended public administrator has a right prior 1893, adopting L. 1871, c. 335, § 5; as to the Brooklyn Trust Company, to amended L. 1882, e. 124. which, before the act of 1882, letters 75 This provision of the statute re- might issue, in the surrogate's dis- lates solely to nonresident decedents, cretion. (Goddard v. Public Adm'r, 1 (Taylor v. Public Adm'r, 6 Dem. 158.) Dem. 480; affd., 94 N. Y. 544.) 78 Co. Civ. Proc, § 2669, as amended 77 Co. Civ. Proc, § 2669, as amended 1893. See § 377, note 10, ante. The 1893. CHAPTER XIII TEMPORARY ADMINISTRATION. § 403. Jurisdiction to grant letters — Where the appointment of an executor or administrator is delayed, it often becomes neces- sary that some immediate steps should be taken for the preserva- tion of the estate, as well as for the collection of debts and other assets. Grave inconvenience has sometimes arisen, also, in re- spect to the right to collect the assets, and otherwise manage the property of a person who has disappeared and is unheard from, where there is no sufficient evidence of death. In each of these cases, the statute authorizes the appointment of a temporary cus- todian of the property, who has heretofore received the various appellations of collector, special administrator, receiver, and trus- tee, but by the Code of Civil Procedure is uniformly styled a temporary administrator.^ Power is conferred on the surrogate to grant, in his discretion, such letters — " 1. Where, for any cause, delay necessarily occurs in the granting of letters testa- mentary or letters of administration, or in probating a will. " 2. Where a person, of whose estate the surrogate would have jurisdiction, if he was shown to be dead, disappears or is missing, so that, after diligent search, his abode cannot be ascertained, and under circumstances which afford reasonable ground to believe either that he is dead, or that he has become a lunatic, or that he has been secreted, confined, or otherwise unlawfully made away with ; and the appointment of a temporary administrator Is necessary for the protection of his property, and the rights of creditors, or of those who will be interested in the estate, if it is found that he is dead." ^ 1 Under the English ecclesiastical (that is, for letters testamentary or law, several difiFerent sorts of limited of administration ) , and the words, or temporary administrations are rec- " or in consequence of the absence from ognized, — e. g., administration duroMte the State of an executor named in the minore estate, pendente lite, durante will, or for any other cause." As to absentia, etc. See Wms. on Exrs. collectors and special administrators (7th ed.) 479. appointed before the date when the 2 Co. Civ. Proc, § 2670, as amended provisions of the Code relating to tem- 1901 (L. 1901, c. 21). The amend- porary administrators took eflfeet ment consisted mainly in striking out (Sept. 1, 1880), see Co. Civ. Proc, the words " in consequence of a con- § 2683. test upon an application therefor " [326] 327' Tempoeaet Administeatioht. §§ 404, 405. It is expressly provided* tliat pending a proceeding for the grant of letters of administration, on giving a limited bond, no temporary administrator shall be appointed, except upon peti- tion of the next of kin, who consent to the giving of a limited bond. Prior to the amendment of 1901, it was said that the " delay " referred to in the first clause as one necessarily occurring in a contested proceeding for letters in chief, implied that such a pro- ceeding was pending, and hence, if no such proceeding was pend- ing, an original independent proceeding by a creditor to procure temporary letters, to enable him to collect his debt, was unau- thorized.* It is believed that the amendment has not, in this re- spect, enlarged the powers of the surrogate; for it is still pro- vided that notice of the application for letters must first be given " to each party to the proceeding who has appeared." The ruling, before the adoption of the present Code, that the authority of the surrogate was not confined to cases where the contest as to pro- bate, etc., was pending before him, but extended to any contest, whether before him or on appeal from his decision,® holds good, under the present statute, provided a grant of letters is delayed by the appeal. The controlling fact now is, not merely whether there is a contest, but whether there is a delay in the granting of letters ; and letters being once granted, an appeal from such grant is not good ground for temporary administration.® § 404. Who may apply for temporary administrator. — A cred- itor, or any person interested '^ in the estate, may apply to the sur- rogate to grant letters of temporary administration; and, if the estate is that of an absentee, the county treasurer of the county [or the piiblic administrator in 'Sew York and Kings counties] where he last resided, or, if he was not a resident of the State, of the county where any of his property, real or personal, is situated, may make the application, with like effect and in like manner as a creditor.* § 405. Mode of application — The manner of proceeding to ob- tain a grant of temporary letters is different in the case of a de- 3 Co. Civ. Proc, § 2664, as amended 5 Hicks v. Hicks, 12 Barb. 322. See 1893. This provision does not apply Mootrie v. Hunt, 4 Bradf. 173; Law- to an administrator with the will an- rence v. Parsons, 27 How. Pr. 26; nexed, as, in that case, the next of kin Crandall v. Shaw, 2 Redf. 100. may have no interest in the matter. 6 Tooker v. Bell, 1 Dem. 52. (Matter of Le Eoy, 1 Connoly, 491.) 7 See Co. Civ. Proc, § 2514, subd. 4 Saw Mill Co. V. Dock, 3 Dem. 55; 11, and ante, § 98. Matter of Colton, N. Y. Law J., May 8 Co. Civ. Proc, § 2670, as amended 1, 1891; Matter of Nichols, N. Y. Surr., 1893. MS. Dec. (1890) 163. § 406. Tempoiuby Administration. 328 cedent's estate from that in the case of the estate of an absentee. In the former case, the application is a step taken in a special proceeding already commenced before the surrogate,^ and unde- termined, while, in the latter, an original and distinct special proceeding is instituted for that purpose. Accordingly, where a decedent's estate is in question, no formality is prescribed by the Code, which merely directs that the appointment " must be made by an order," at least ten days' notice of the application for which must be given to each party to the special proceeding who has appeared, imless the surrogate is satisfied, by proof, that the safety of the estate requires the notice to be shortened, in which case he may shorten the time of service to not less than two days.-"* In many cases, the facts upon which the application IS based will be obvious to the court, so that it will take judicial notice of them without proof. Where it is necessary to furnish proof, it may be made by affidavit, or petition, or oral examina- tion.-'^ On the other hand, an application for temporary admin- istration of the estate of an absentee "must be made by petition, in like manner as where an application is made for administration in a case of intestacy," and the proceedings are the same as upon such an application.-'^ § 406. Petition, etc., in cases of absentee The only guide as to the contents of the petition, and the details of the subsequent proceedings before decree, where letters are asked for upon the estate of an absentee, is the succinct provision of the Code, that " the proceedings are the same as prescribed in article fourth of this title, relating to such last-mentioned application," i. e., an application for permanent letters in cases of intestacy. -"^ But at the threshold of an attempt to elaborate the scheme thus indi- cated, we are confronted with the difficulty that the manner of procedure to obtain permanent letters upon an intestate's estate is dependent upon the question of priority of right to administer ; while no statutory rules of priority exist in reference to the right 9 When the surrogate of New York may be allowed his compensation and county transfers the proceedings for expenses. (Crandall v. Shaw, 2 Eedf. the probate of a will to another court, 100.) he is not deprived of power to appoint H Much slighter proof of death is a temporary administrator. (Matter sufficient than upon application for of Blair, 60 Hun, 523; 39 St. Rep. letters of permanent administration. 502.) (Czech V. Bean, 35 Misc. 729; 72 N. 10 Co. Civ. Proc, § 2670, as amended Y. Supp. 402.) 1893. An appointment made without 12 Co. Civ. Proc, § 2670, as amended due notice is irregular, and will be 1893. vacated on application ; but the ap- is Co. Civ. Proc, § 2670, as amended pointee having acted in good faith 1893. 329 Temporary Administration. § 407. of temporary administration upon the estate of either a decedent or an absentee, the letters being apparently issuable to any per- son competent to be an executor, who will duly qualify. It is clear, however, that the petition must set forth (1) the petitioner's title, — i. e., must show that he is a creditor, or person interested, or the county treasurer of the proper county; and (2) the juris- dictional facts, such as the disappearance of the owner of the estate, under the prescribed circumstances, the unsuccessful search for his abode, the necessity for the appointment to protect prop- erty, and the rights of creditors and others, and such additional facts concerning residence, and the location of property, etc., as would give jurisdiction to the surrogate applied to, if the ab- sentee was shown to be dead. The assumption being that there is no ground for the formal legal presumption of death, it is not very clear how certain clauses of the Code,""^* relating to the place' of death and the residence at the time of death of an intestate, should be applied to the case in hand. A citation should issue wherever it is impossible, for reasons already indicated, to de- termine whether there is ground for dispensing therewith.-'^ The remaining proceedings, to procure the decree and letters, suffi- ciently resemble those already set forth under the topic of admin- istration in intestacy. § 407. Power, discretionary and summary The statute pro- vides that the surrogate may grant temporary administration, in Ms discretion. The propriety of the exercise of the surro- gate's discretion in the grant of such letters is plainly dependent upon the exigencies of the estate, the value and situation of the property, and other circumstances which require to be judged summarily. Consequently, his decision upon an application made 1* Co. Civ. Proc, § 2476. date, had been neither seen nor heard 15 See Co. Civ. Proc, § 2662. Mat- of by the petitioner, nor by any rela- ter of Cohen (N. Y. Law J., Mar. 26, tive or friend. The petitioner em- 1891) was an ex parte application for ployed detectives to search for her, a decree by the father of the absentee, and kept them so employed for up- who was also her creditor; her only wards of one month. He corresponded property being a distributive share in with the justices of the peace of the estate of another, to which she had numerous villages; he advertised for become entitled after her disappear- her repeatedly in the New York Her- anee. All the next of kin made affida- aid, and wrote letters to many per- vits sustaining the petition. No cita- sons, in many places, wherever he had tion was required to be issued. In the faintest hope she might have been that case, the petition showed that seen or heard of, but has never re- eight years before, the absentee, then ceived the slightest clue of her where- seventeen years old, left her home in abouts. She always lived happily at New York city, where she resided with home with the petitioner and her the petitioner, stating that she would brothers and sister. She had never return at supper time, and since that been married, was not betrothed, nor § 408. Tempobaey Admh^tisteation. 330 to him is not subject to review upon appeal, or to collateral at- tack. ■"* His determination is summary and exclusive.''^ § 408. Competency, eligibility, and qualification of administrator. ■ — ■ It is provided that the letters can be issued only " to one or more persons competent and qualified to serve as executors." ^* The word " qualified," here, would seem to be expletive, since, a temporary administrator must qualify, as the Code prescribes with respect to an administrator in chief. It was formally held that one named as executor should not be appointed temporary ad- ministrator, pending a contest over the probate of the will, against the objection of the contestant, especially where he had an interest in any degree hostile to the estate/® and also that no party to the litigation should be appointed.^" But it is now well settled that whether, pending a contested probate, one of the ex- ecutors will be selected as temporary administrator, rests in the discretion of the surrogate.^^ The court would be justified, there- fore, in refusing to appoint the nominated executor, where he is the largest beneficiary under the will ; is the principal proponent thereof; is charged with having influenced decedent; has large unsettled transactions with the estate, and is unfriendly with tes- tator's family.^^ Indeed, in every case where the interests in- volved are conflicting, a disinterested person should be appointed.^* Ordinarily, considerations of economy will justify the appoint- ment of a person named in the disputed will as executor ; and the fact that he is charged with exercising undue influence upon tes- tator will not prevent such appointment, where the allegations of such influence are vague, and the appointment is opposed by but a small interest of the estate.^'' ^¥here, however, such appoint- ment would be of advantage to the estate, and a majority of the parties so request, it will be made almost as a matter of course."^ The court is certainly not required to make his selection from had any preference for any man among 20 Crandall v. Shaw, 2 Redf . 100. her acquaintances, so far as petitioner 21 Jones v. Hamersley, 2 Dem. 286 ; had been able to ascertain. Held, a Matter of Bankard, 19 Week.' Dig. 452. proper case for appointing a tempo- Compare Matter of Wanninger, 3 N. rary administrator. Y. Supp. 137. 16 Czech V. Bean, 35 Misc. 729; 72 22 Matter of Stearns, 31 St. Eep. N. Y. Supp. 402. 960; 9 N. Y. Supp. 748. 17 McGregor v. Buel, 24 N. Y. 166. 23 Matter of Eddy, 10 Misc. 211; And see Mootrie V. Hunt, 4 Bradf. 173; 31 N. Y. Supp. 423. Buffalo Catholic Inst. v. Bitter, 87 N. 24 Haas v. Childs, 4 Dem, 131. But Y. 255; Matter of Chase, 32 Hun, 318. compare Matter of Sterns, 2 Connoly, 18 Co. Civ. Proc, § 2670, supra (for- 272. merly § 2668). 25 Matter of Hilton, 29 Misc. 532; 19 Howard v. Dougherty, 3 Eedf. 61 N. Y. Supp. 1073. 535; Cornwell v. Corn,well, 1 Dem. 1. 331 Tempoeaky Administration. §§ 409, 410. among the relatives who would be entitled, under the statute, to a grant of permanent letters in a case of intestacy.^^ In cases arising in Kings county, the surrogate is given a discretion to ap- point the public administrator of that county, without requiring him to give further security than his ofScial bond.^^ § 409. Form and effect of letters. — The Code contains no special provisions relating to the form of letters of temporary adminis- tration. Those granted upon the estate of a decedent may be in the same form as permanent letters of administration ; but those granted upon the estate of an absentee will naturally vary some- what from the former, inasmuch as the administrator, in the datter case, has, in right of his ofBce, certain powers in respect to real property, which the administrator of the estate of a decedent possesses only by special grant from the surrogate. In either case, the letters are subject to the general provisions of the Code, prescribing the manner in Avhich surrogates' letters must be tested, signed, sealed, and recorded, and specifying their effect as evi- dence of the authority of the persons to whom they are granted.^* The Code contains a general provision to the effect, that where the law reqiiires or permits an act relating to the estate of a de- cedent to be done within a specified time after letters testamentary or of administration are issued, and successive or supplementary letters are issued upon the same estate, the time so specified must be reckoned from the issuing of the first letters.^* But it de- clares,^" substantially, " that letters testamentary or of adminis- tration in chief are not deemed successive or supplementary to temporary letters previously issued upon the same estate, within the meaning of the foregoing provision, except as otherwise pre- scribed in two sections of the Code,^^ relating to advertisement for claims and payment of debts. § 410. Certain notices, how served — The Code provides that no- tices required to be given, as prescribed in the article thereof con- cerning the appointment, etc., of a temporary administrator, " to 26 So held in Matter of Plath ( 56 of administration. As to amount of Hun, 223; 31 St. Rep. 101: 9 N. Y. bond, and actions thereon, see c. XV, Supp. 251), where the petitioner, the post. decedent's only relative, was disquali- 29 Co. Civ. Proc, § 2593. fied, and a large creditor of the estate 30 Co. Civ. Proc, § 2682. Such, at claimed the appointment — the public least, is the purport of this section, administrator not havina: intervened, as we interpret its provisions, though 27 Co. Civ. Proc, § 2669, as amended it is not entirely clear. 1893. 31 §§ 2673, 2674. See c. XVIII, 28 See § 301. ante, for general regu- post. lations as to the form, etc., of letters §§ 411, 412. Temporary Administration. 332 a party other than that officer, must be served upon the attorney of the party to whom notice is to be given; or, if he has not ap- peared by an attorney, upon the party, in like manner as a notice may be served upon an attorney in a civil action, brought in the Supreme Court. But where the attorney or party to be served does not reside in the surrogate's county; or where the attorney for a party has died, and no other appearance for that party has been filed in the surrogate's office; the surrogate may, by order, dispense with notice to that party; or may require notice to be given to him, in any manner which he thinks proper." ^^ § 411. Authority as to personalty. — The temporary administra- tor has authority to take into his possession personal property,' to secure and preserve it, and to collect choses in action. The surrogate may, by an order, made upon ten days' notice, or shorter notice (not less than two days), to all the parties who have ap- peared in the special proceeding, authorize the temporary admin- istrator to sell, after appraisal, such personal property, specify- ing it, of the decedent, or of the absentee, whom he represents, as it appears to be necessary to sell, for the benefit of the estate.^* § 412. Authority over decedent's realty. — A special administra- tor or collector, appointed under the former statutes, had no power in reference to the real property, his sole function being that of a receiver of the assets during a period of controversy as to the right of administration or of executorship. But it is provided in the Code, that " where a temporary administrator is appointed, and a proceeding is pending for the probate of a will of real property, or there is a delay in the granting of let- ters testamentary or administration on such a will, or in the quali- fication of a trustee named therein, the order appointing him may confer upon him authority to take possession of real property, in the same or another county, which is affected by the vnll, and to receive the rents and profits thereof. The surrogate may, by an order, confer upon him authority to lease any or all of the real property, for a term not exceeding one year; or to do any other act with respect thereto, except to sell it, which is, in the 32 Co. Civ. Proc, § 2681. change, owned by the firm composed 83 Co. Civ. Proc, § 2672. While he of himself and the testator as part- would not be justified in making a ners, could be allowed on his account- sale of property, if it was the sole ing, and he was entitled to prove the property of the decedent, without the fact of such ownership by legal evi- order of the court, where he was also dence. (Matter of Grant, 49 N. Y. executor under the will, a sale, pend- Supp. 574.) ing probate, of a seat in the Stock Ex- 333 Temporary Administration. §§ 413, 414. surrogate's opinion, neqessary for the execution of the will, or the preservation or benefit of the real property." ^* The powers of the administrator are limited to those thus conferred. They are confined to the preservation of the estate; he cannot be au- thorized to administer it.^^ § 413. Authority over absentee's realty. — A temporary adminis- trator, appointed upon the estate of an absentee, has the same powers and authority (enumerated above), with respect to the real property of the absentee, without any special delegation from the surrogate. His acts, done in pursuance of that authority, bind the absentee, if he is living, or his heir or devisee, if he is dead, in the same manner as the acts of an executor or admin- istrator bind his successor.^® § 414. Authority to pay certain, claims. — The surrogate may, by order, authorize him to pay funeral expenses, or any expenses of the administration of his trust,^^ including stenographer's or referee's fees on the contest of a will or administration. He may also direct the payment of a legacy or other pectmiary provision under a will, or a distributive share, or just proportionate part thereof, as though the temporary administrator were an executor or administrator.^® A surrogate has no power to direct a tem- porary administrator to pay sums to enable the proponents of a will to procure expert witnesses,^® nor has he authority to direct payment out of the estate, of the costs of the proceeding for the probate of an alleged will of the decedent. The decree in such case should award costs and provide for their payment by the 34 Co. Civ. Proc, § 2675, as amended ter of Cogswell, 4 Redf. 241. Upon 1901 (L. 1901, c. 21), substantially an application for an order directing adopting L. 1870, c. 359, § 13, which a temporary administrator to pay to related, however, to the county of New the applicant a sum of money on ac- York only. count of a legacy or distributive share 35 Riegelman v. Riegelman, 4 Redf. to which he is entitled, a citation is 492. Accordingly, an application, properly addressed to and served upon pending a contest over probate, for a the administrator alone. (Rank v. direction to the collector to pay her Camp, 3 Dem. 278.) one-third of the rents and profits of 39Kruse v. Fricke, 2 Dem. 264; the estate, both real and personal, and Matter of Marcellin, supra. In Mat- also to pay to her, for her two infant ter of Moderno (N. Y. Law J., July children, one-sixth each of the residue 16, 1891), the widow claimed her ex- of said rents and profits, and that he penses from the Island of Madeira to be ordered to pay all interest on mort- New York and returning, for the pur- gages, ground rent, taxes, and insur- pose of proving decedent's death and ance, was denied. (lb.) rendering assistance in and about the 36 Co. Civ. Proc, § 2676. probate of the will. The court ordered 37 See Matter of Marcellin, 25 Misc. proof to be taken of the necessity of 260; 55 N. Y. Supp. 425. the expenses thus incurred 38 Co. Civ. Proc, § 2672. See Mat- §§ 415-417. Tempoeaey Administeation. 334 person to whom letters of administration or letters testamentary should thereafter be granted.*" § 415. Same; in case of absentee. — Where the temporary ad- ministrator was appointed upon the estate of an absentee, and satisfactory proof is furnished to the surrogate, that the wife or any infant child of the absentee is in such circumstances as to require provision to be made out of the estate, for his or her main- tenance, clothing, or education, the surrogate may make an or- der, directing the temporary administrator to make such pro- vision therefor, as the surrogate deems proper, out of any per- sonal property in his hands, not needed for the payment of debts.** § 416. Advertising for creditors — " After six months have elapsed since letters were issued to a temporary administrator, appointed upon the estate, of either a decedent or an absentee, he has the sam.e power, as an administrator in chief, to publish a notice requiring creditors of the decedent or absentee, to exhibit their demands to him. The publication thereof has the same effect, with respect to a temporary administrator, and also an executor or administrator subsequently appointed upon the same estate, as if the temporary administrator was the executor or an administrator in chief, and the person to whom the subsequent letters are issued was his successor." ^ §417. Payment of debts — The surrogate's authority to direct a temporary administrator to pay debts is derived wholly from the statjite, and must be exercised strictly according to its pro- visions.*'' After the lapse of a year, since the issue of letters. " the surrogate may, upon the application of the temporary ad- ministrator, and upon proof to his satisfaction, that the assets exceed the debts, make an order permitting the applicant to pay the whole or any part of a debt due to a creditor of a decedent or absentee; or, upon the petition of such a creditor, he may issui=; a citation to the temporary administrator, requiring him to show cause why he should not pay the petitioner's debt." ** When such a petition is presented, the proceedings are, in all respects, the same as where a creditor presents a petition, praying for a decree directing an executor or administrator in chief to pay his debt, as prescribed in the Code.*' 40 Matter of Aaron, 5 Dem. 362 ; « Matter of Haskett, 3 Redf. 165. Matter of Marcellin, supra. ** Co. Civ. Proc, § 2674. 41 Co. Civ. Proc., § 2677. « Co. Civ. Proc, § 2674. See § 2717, 42 Co. Civ. Proc, § 2673. c. XVII, post. 335 Tempokaey Administration. §§ 418, 419. If he proceeds without such authority to pay the debts of the estate, relying upon the adequacy of the realty, the personalty being insufficient, his accounts will be surcharged with the excess, and interest.** § 418. Actions, etc., by and against administrator. — The tempo- rary administrator has power to maintain any action or special proceeding for the purpose of taking possession of, securing and preserving the personal estate, and collecting choses in action;*^ also to maintain or defend any action or special proceeding in the exercise of authority conferred upon him by the surrogate over the real property of a decedent, or possessed in right of his ofSce over the real property of an absentee.** Like other administrators, he is the judge of the propriety of his own course in respect to the institution of suits, subject to his liability when the administra- tion is terminated and his accounts settled.*® An action may be maintained against him, by leave of the surrogate, upon a debt of the decedent, or of the absentee whom he represents, in like man- ner and with like effect as if he were an administrator in chief. '^^ § 419. Duty as to depositing moneys — A special administrator has no authority as such to make investments."^ A statutory pro- vision, still in force, directs that all interest received by any spe- cial administrator on any moneys which may come to his hands, shall be accounted for and paid over by him in the same manner as the principal sum in his hands.^^ He is required, within ten days after any money belonging to the estate comes into his hands, to deposit it as follows: (1) Where he is appointed by the Surro- gate's Court of any county except ISTew York, with a person or with a bank, or in a domestic incorporated trust company, desig- ns Matter of Philp, 29 Misc. 263. suit in inflicting upon his adversary *T Co. Civ. Proc, § 2672. Thus a an injury far greater than he himself temporary administrator has power to would probably suffer if his applica- present notice and proofs of loss based tion were denied. The proponents and on a fire occurring after the death of legatees should have an opportunity the insured and to bring an action to to resist the claim with the aid of recover for such loss. (Matthews v. counsel of their own choosing, and in American Central Ins. Co., 154 N. Y. an action the defense of which will be 449; 48 N. E. 751.) His right to under their own control. (Matter of sue cannot be questioned collaterally, Fleming, 5 Dem. 336.) where the surrogate had jurisdiction 51 Baskin v. Baskin, 4 Lans. 90. to appoint him. (Czech v. Bean, 35 52 L. 1864, c. 71, § 12. As to duties Misc. 729; 72 N. Y. Supp. 402.) and powers of a special administrator 48 Co. Civ. Proc, §§ 2672, 2675, prior to the Code, see Westervelt v. 2676. Gregg, 1 Barb. Ch. 478 ; Smith v. Van 49 Delafield V. Parish, 4 Bradf. 24. Kuren, 2 Barb. Ch. 473; Buchan v. 50 Co. Civ. Proc, § 2672. But the Rintoul, 70 N. Y. 1; Campbell v. surrogate's discretion should not be Bruen, 1 Bradf. 224; Matter of Doug- exercised where its exercise, at the in- las, 3 Redf. 538 ; Berdell v. Schell, 2 stance of one of the parties, might re- Dem. 292. § 420. Tempohaey Administration. 336 nated by the surrogate; but a natural person, so designated as de- positary, must first file in the surrogate's ofiice a bond to the surro- gate, in a penalty fixed by him, executed by the depositary and two sureties, and conditioned to render a faithful account, and pay over all moneys received by him, upon the direction of any court of competent jurisdiction. (2) Where he is appointed by the surrogate of the county of New York, in a domestic incorporated trust company, having its principal office or place of business in the city of New York, and either specially approved by the surro- gate, or designated, in the general rules of practice, as a depositary of funds paid into court.^^ Money so deposited cannot be with- drawn, except upon the order of the surrogate, a certified copy of which must be presented to the depositary. Such an order may be made upon two days' notice of the application therefor, given to all the parties to the special proceeding, in which the temporary administrator was appointed, who appeared therein ; but not other- B4 Wise. § 420. Liability for neglect to deposit funds If he neglects to make a deposit within the times so limited, the surrogate is re- quired, upon the application of a creditor, or person interested in the estate, accompanied with satisfactory proof of the neglect, to make an order directing the administrator to do so forthwith, or show cause why a warrant of attachment should not issue against him.*^ If a warrant of attachment issues and is returned not served, the surrogate must revoke the administrator's letters.'® The remedy against the administrator is not limited to proceedings by attachment. Where he has deposited the funds of the estate, first with his firm and thereafter in his own name in bank, he should be charged, on his accounting, with interest at the highest rate, for the time the funds were so deposited f but no more, un- less he has been guilty of misconduct.^® He may, however, keep on hand a reasonable sum to pay current expenses."* 53 Co. Civ. Proc, § 2678. manner as the surrogate directs. In 64 Co. Civ. Proc, § 2680. any other county, it must be made 55 Co. Civ. Proc, § 2679. In the returnable within a reasonable time, county of New York, the order must not exceeding fifteen days after issu- be made returnable thr,ee days after ing it; and it must be served, in like issuing it; and it must be served upon manner, at least ten days before the the temporary administrator, at least return day thereof. (lb.) two days before the return day thereof, 56 Co. Civ. Proc, § 2691, subd. 4. either personally or by leaving a copy 5T Matter of Mairs, 4 Redf. 160. thereof within the State, at his dwell- 58 Matter of Philp, 29 Misc 263; ing place, or his office for the regular citing Livermore v. Wortman, 25 Hun, transaction of business, in person; or, 341. if it cannot be served in either of those 59 Harrington v. Libby, 6 Daly, 259. methods, by serving it in such other 337 Temporary Administration. §§ 421, 422. § 421. Kevocation of letters.- — The statute provides that the let- ters of the temporary administrator of the estate of an absentee may be revoked upon the petition of a creditor or person inter- ested in the estate*" (including, it is presumed, the returned ab- sentee), where it is shown that the absentee has returned; or that he is living, and capable of returning and resuming the manage- ment of his affairs ; or that an executor or administrator in chief has been appointed upon his estate; or that a committee of his property has been appointed by a competent court of the State.®^ And the surrogate is required to make a decree, on his own motion, revoking the administrator's letters, where an order has been made and served, as already specified, directing him to deposit money, or show cause why a warrant of attachment should not issue against him, and a warrant of attachment issued thereupon has been re- turned not served upon him.®^ His letters are, of course, revoked where he resigns and the resignation is accepted by the surrogate.*^ Where permanent letters are issued on a decedent's estate, a formal order revoking the temporary letters is not necessary ; the issuance of such letters, of itself, effects the retirement of the temporary administrator from office, and a discontinuance of his administra- tion of the estate.^ Where he is superseded, he may 'be compelled to deliver, to the person succeeding to the administration, all the property belonging to the estate in his hands ; but where he him- self claims leasehold property, by virtue of a title acquired prior to his appointment, the surrogate has no power to pass upon the question.®" The events upon, and the manner in, which the au- thority of a temporary administrator of the estate of an absentee is terminated have already been specified. § 422. Accounting.— The Surrogate's Court may compel a ju- dicial settlement of the accounts of a temporary administrator at any time.*® The persons interested in the estate, as well as the executor of the will, are proper parties to the accounting, and have 60 Co. Civ. Proc, § 2685, subd. 8. Feb. 14, 1893. The former statute This section confines the right to peti- contained an express provision to that tion to "a creditor or person inter- eflfeet (2 R. S. 77, § 40). ested in the estate of a decedent ;" hut 65 Gottsberger v. Smith, 2 Bradf 86 this appears to be due to an inad- 66 Co. Civ. Proc, § 2726, as amended vertence. The proceedings to procure 1893, incorporating former § 2725. It the revocation are detailed in chapter is error to charge a temporary admin- ^^Y' P°**: istrator on his final accounting with !„ 9,°- S?'^' K'^"''-' ^ ^^^^- moneys which the executrix col'ected 62 Co. Civ. Proc, § 2691, subd. 4. and refused to pay over to him (Dee- 63 Id., §§ 2689, 2690; L. 1879, c. 406. gan v. Von Glahn, 75 Hun 39- 26 N „f ^"t".? °f,I'«Yi^' I'' Week. Dig. Y. Supp. 989.) For the proceedings 311; Matter of Eisner, 5 Dem. 383; to settle his account, see chapter on Matter of Hotchkiss, N. Y. Law J., Accountings, post ■ • 22 § 423. Tempoeaby Administeation. 338 the right to make such objections to the account as the circum- stances require. ^^ Where his letters are revoked, he may be called to account by his successor,^ who may also prosecute his official bond, on its assignment to him.®® Where he is also an executor of the will, the surrogate will not, upon the decree settling his ac- coiTuts, in the former capacity, insert a provision canceling his official bond.™ § 423. Compensation of temporary administrator. — The former statute '^ provided for payment of the expenses, but not of com- pensation for the services, of a temporary administrator ; but it was held that he was within the equity of the statute relating to executors and administrators, and entitled to the same commissions, which were to be based not simply on the money actually received and paid out, but upon the value of the whole estate received and passed over by him, to his successor.''^ The present Code seems clearly to contemplate the payment of the same commissions to him as to a permanent administrator ; and the settled practice is to regard the statutory commissions of executors and administrators as the measure of the remuneration of a temporary administrator.''* 67 Matter of Lane, N. Y. Surr.. MS. 71 L. 1837, c. 460, § 24. Dec. (1891) 388. In Matter of Hotch- 72 Green v. Sanders, 18 Hun, 308. kiss (N. Y. Law J., Feb. 17, 1893), 73 Green v. Sanders, 18 Hun, 308; contestant claimed an interest in the Matter of Duncan, 3 Eedf. 153; Mat- estate as next of kin, but her claim ter of Eisner, 5 Dem. 384; Matter of had been adjudged against her by the Campbell, N. Y, Surr., Dec. (1890) probate decree, from which she had 444. In Matter of Lane (N. Y. Law appealed. Held, no bar to her right J., Oct. 22, 1891), it was held that to appear and contest the accounting; section 2736 (now part of section but the trial of the objections was 2730, as amended 1893), providing stayed pending the appeal. for the apportionment of commis- 68 Co. Civ. Proc, § 2605. sions among two or more executors 69 Dayton v. Johnson, 69 N. Y. 419. and administrators, applied to tem- See the same case, as to the effects of porary administrators. " The ' com- reeitals in the bonds in an action pensation' mentioned in this section against the sureties. The sureties in evidently refers to, and has always the bond are liable for property be- been held to be, the usual statu- longing to the estate received by the tory commissions. Section 2738 [now temporary administrator before his incorporated in section 2730], eon- appointment, and as agent of a former sidered in connection with section administrator, or in any other capac- 2736, is relieved of any ambiguity ity. (Co. Civ. Proc, § 2596; Gotts- or uncertainty which it otherwise berger v. Taylor, 19 N. Y. 150.) might be claimed to present. The 70 Matter of Eisner, 5 Dem. 383. Co. ' compensation ' mentioned in section Civ. Proc, § 2731, — conferring upon 2738, in connection with a temporary the Surrogate's Court authority to de- administrator, is evidently the same termine a disputed claim by or against as that specified in section 2736. I an accounting party, — applies to tem- conclude that a temporary administra- porary administrators and includes tor is to be considered as an adminis- the right to adjudicate upon a claim trator within the meaning of section of the estate against a firm of which 2736 and is entitled only to such com- such temporary administrator is a pensation as can be awarded to an member. (lb.) executor or administrator." A tem- 339 Tempoeaey Administkation. § 423. An allowance to him of a gross sum for his services will not be reversed on that ground, if it appears not to exceed the amount of the statutory fees.'^* Where, however, permanent letters are sub- sequently issued to him, he is entitled to compensation, in one capacity only, at his election; except that where he has received compensation in one capacity, he is entitled to the excess, if any, of the compensation allowed by law above the sum which he has already received in the other capacity.^^ porary administrator is entitled to ^* Green v. Sanders, supra. The commissions on property specifically surrogate has no power in the order bequeathed which is received by him appointing a temporary administrator and delivered over in kind on the ter- to make an allowance to such admin- mination of his oflSce. (Estate of istrator to compensate him for ex- Egan, 7 Misc. 262; 27 N. Y. Supp. penses to be incurred in the course of 1009.) As to allowance of salary as the application for his appointment, manager of decedent's business, see (Matter of Bankard, 19 Week. Dig. Matter of Moriarity,- 27 Misc. 161; 452.) 58 N. Y. Supp. 380. 75 Co. Civ. Proc, § 2730, as amended 1893, consolidating former § 2738. CHAPTER XIV. REVOCATION OF AUTHORITY OF EXECUTORS, AD- MINISTRATORS, AND TESTAMENTARY TRUSTEES. TITLE FIRST. INCIDENTAL EEVOCATION OF LETTERS. § 424. Revocation of probate by action — As the authority to is- sue letters testamentary, or of administration, is vested solely in the Surrogates' Courts, those courts alone have the power to re- call and revoke such letters. But, indirectly, the letters may be revoked or rendered inoperative by the vacating of the decree upon which the letters were granted. We shall have occasion hereafter to speak of the efPect of surrogates' decrees, and the method in which they may be impeached in a collateral action.-' When it is said that equity will not interfere to set aside a will and its pro- bate for fraud, it is not meant that there is an absolute want of jurisdiction in a court of equity to set aside a probate and the will itself, but only that there is no occasion for the exercise of such jurisdiction, if the party aggrieved has an adequate remedy at law or in the court of probate.^ The new powers of Surrogates' 1 See e. XXI, post. in equity to set aside a will on the 2 De Bussierre v. Holladay ( 4 Abb. usual grounds, the complaint alleged N. C. Ill) was an action to set aside that in a probate proceeding the plain- a, probate as having been obtained by tiflf had interposed an answer, con- fraudulent contrivance and collusion, testing the validity of the will upon and by an imposition upon the court the same grounds, and that the pro- whieh granted it. At that time the ceeding was still pending, it was held Surrogate's Court which granted the that the action could not be main- probate had not power to open a de- tained, as the plaintiff, as soon as the cree on such grounds, and the remedy will was admitted to probate, had a by ejectment was not clear and ade- perfect remedy at law under Code, quate. It was held that the action § 2653a, for determining whether could be maintained, and that since the writing was the last will of the the transfer of the powers of the Court testatrix. of Chancery to the Supreme Court, it As to the reluctance of courts of could not be successfully urged, as an equity to interfere in such cases, see objection to maintaining an action, Brady v. McCosker, 1 N. Y. 214; that the remedy of the plaintiff was Clark v. Sawyer, 2 id. 498; Colton v. at law and not in equity. But in Wal- Ross, 2 Paige, 396 ; Booth v. Kitchen, lace V. Payne (9 App. Div. 34; 41 N. 7 Hun, 255, and cases cited. Y. Supp, 111), which was an action [340] 341 Revocation of Authokity, Etc. §§ 425, 426. Courts to open, vacate, and set aside their decrees for any suffi- cient cause furnish so adequate a remedy against fraud, error, and mistake, that there is less occasion now than ever to resort to other courts for relief against them. The power to revoke administra- tion, granted here, is confined to our own courts, and a court of another State can have no jurisdiction to revoke letters of admin- istration granted in this.* § 425. Revocation of probate on motion. — Among the incidental powers of Surrogates' Courts is the power " to open, vacate, modify, or set aside its decrees or orders," and to grant a new trial or hearing " for fraud, newly-discovered evidence, clerical error, or other sufficient cause ;" * and a decree revoking probate is expressly required to contain a revocation of the letters issued upon it, though it is obvious that the revocation of a decree of probate, or of a decree of administration in intestacy, will, of itself, effect a revoca- tion of any letters which may have been issued upon it. In gen- eral, it may be stated that Surrogates' Courts may vacate or modify their orders and decrees in like cases, and in the same manner, as other courts of record,® and in the exercise of the jurisdiction con- ferred by law, they may issue letters of various descriptions, to executors, administrators, and other' officers, all of which are re- vocable for the causes, -and* in the methods specified in the statutes relating thereto. § 426. Incidental recall of authority. — AH letters are subject to revocation in one way or another ; but the statute provides, in the case of two of them, to wit: the letters of executors and those of administrators, — a particular special proceeding to effect that pur- pose directly. Besides this direct method, the authority of the several kinds of appointees, as evidenced by the letters issued from the Surrogate's Court, may be recalled indirectly in some other proceeding instituted nominally for another purpose. Such a proceeding is one instituted by a creditor, or person interested in the estate, to compel an executor (where he has given a bond), or an administrator, to give a new bond in a larger penalty or with new or additional sureties ; in which the surrogate may, in a proper case, make an order granting such prayer and directing that, in default of obedience thereto, the letters be revoked; and if a bond is not approved and filed as required by the order, the 3 Chapman v. Fish, 6 Hill, 554. 5 See Bailey v. Hilton, 14 Hun, 3. * Co. Civ. Proc, § 2481, subd. 6. See Pettigrew v. Foshay, 12 Hun, 483 ; and also §§ 54, 276, ante. §§ 427, 428. Eevocation of Authority, Etc. 342 surrogate is required to make a decree removing the delinquent from oiSce and revoking the letters issued to him.® Again, the sureties in an executor's or administrator's bond, may present a petition praying to be released from responsibility on account of any future breach of the condition of the bond, and that the prin- cipal may be required to file a bond with new sureties, whereupon, unless a bond with new sureties, satisfactory to the surrogate, is duly filed, he is required to make a decree revoking the delinquent's letters.'' § 427. Eevocation where will proved, after letters. — It may hap- pen that, after letters of administration on the ground of intestacy have been granted, a will is admitted to probate and letters are issued thereupon; or that, after letters have been issued upon a will, the probate thereof is revoked, or a subsequent will is admitted to probate, and letters are issued thereupon. In either of such cases, the decree granting or revokrug probate must re- voke the former letters.* Where a decree declares a will void, and letters of administration are granted, but all proceedings on those letters are stayed pending an appeal, the letters should be revoked, in order to permit a grant of temporary administration for the protection of the personal property, until the appeal is decided.® § 428. Summary revocation for defaults in certain proceedings. — The Code^** requires the surrogate to make a decree revoking let- ters testamentary or of administration^^ issued from his court, without a petition or the issuing of a citation, for certain inexcus- able acts of misconduct on the part of the executor or adminis- trator, as, where he refuses to account, or evades service of process, or otherwise so acts as to render it manifestly unfit that he should longer remain in office, even for a brief period. The cases enumerated are: 1. Where the person, to whom the letters were issued, is not a resident of the State, or is absent there- 6 Co. Civ. Proc, § 2599. See c. XV, revoked upon an unproved allegation post. But a surrogate has no au- that a will exists, or that a will which thority, in proceedings for the vaca- had been executed has been lost or tion of a decree, on an accounting, on fraudulently destroyed. (Holland v. the ground of a false suggestion of Ferris, 2 Bradf. 334.) And see Bulk- fact, to revoke the letters of admin- ley v. Redmond, id. 281; Matter oi istration. (Matter of Patterson, 79 Cameron, 47 App. Div. 120; affd., 166 Hun, 371; 29 N. Y. Supp. 451; afifd., N. Y. 610. 146 N. Y. 327.) 10 Co. Civ. Proc, § 2691. 7 Co. Civ. Proc, § 2601. H The expression " letters of ad- 8 Co. Civ. Proc, § 2684. ministration," includes letters of tern- SNewhouse v. Gale, 1 Redf. 217. porary administration. (Co. Civ. liCtters of administration will not be Proc, § 2514, subd. 5.) 343 Revocation of Authority, Etc. § 429. from; and, upon being duly cited to account, neglects to appear upon the return of the citation, without showing a satisfactory- excuse therefor; and the surrogate has not suificient reason to believe that such an excuse can be made. 2. Where a citation, issued to such a person, in a case prescribed by law, cannot be personally served upon him, by reason of his having absconded or concealed himself. 3. Where, by reason of his default in returning an inventory, such a person has remained for thirty days committed to jail, under the surrogate's order, granted in proceedings^^ to compel him to return an inventory or a further inventory. 4. In the case of a temporary administrator, where an order has been made and served directing him to deposit money, ^^ or show cause why a warrant of attachment should not issue against him; and a warrant of attachment, issued there- upon, has been returned not served upon him. TITLE SECOND. DIRECT REVOCATION BY PROCEEDING OR ON RESIGNATION. ARTICLE EIRST. REVOCATION OF LETTERS OF EXECUTORS AND ADMINISTRATORS. § 429. Grounds of petition. — The section of the Code which defines the general jurisdiction of Surrogates' Courts confers on them authority " to grant and revoke letters testamentary and of administration, and to appoint a successor in place of a person whose letters have been revoked." ^* The power to revoke let- ters necessarily implies that they have previously been issued; hence vdiere a person acts as executor, without qualifying or re- ceiving letters, no court can remove him or accept his resigna- tion.-^^ A proceeding to revoke by a direct proceeding may be instituted by the representative himself, as where he wishes to resign, or by another who has a legal interest to procure his removal. The latter kind of proceeding is here first considered. Before stating the statutory causes for removal, it will be well to state the general principle, that Surrogates' Courts have no power to revoke letters except for the causes, and on the grounds, stated in the statute, no matter how gross a breach of duty the 12 See Co. Civ. Proc, § 2715; and wCo. Civ. Proc., § 2472, subd. 2-. c. XVI, post. See § 44, ante. 13 See Co. Civ. Proc, § 2679; and is Matter of Richardson, 8 Misc. % 419, ante. 140; 29 N. Y. Supp. 1079. §§ 430, 431. Kevocation of Authority, Etc. 344 representative may be guilty of." Another rule worth noticing is, that if the evidence tends to establish any one or more of the causes for removal, specified in the statute, the question of removal is one resting in the discretion of the surrogate ;^^ and while his decision, in favor of removal, is subject to review, on appeal to the General Term, it is not reviewable in the Court of Appeals, if there is any evidence to sustain it.^® § 430. Incompetency and disqualification The first of the causes enumerated is: "Where the executor or administrator was, when letters were issued to him, or has since become, incompe- tent, or disqualified by law to act as such; and the grounds of the objection did not exist, or the objection was not taken by the petitioner, or a person whom he represents, upon the hearing of the application for letters." ^^ The facts constituting incompe- tency — or disqualification, which appears to amount to the same thing — to administer, having been already detailed and discussed under another head,^ it vsrill be unnecessary to renew their con- sideration here. The foregoing rule enlarges the previous stat- ute by permitting revocation for a ground existing before ap- pointment, but not then made a basis of objection, instead of confining it to the supervening causes. § 431. Malfeasance, dishonesty, and general unfitness. — Other grounds enumerated are : " Where, by reason of his having wasted or improperly applied the money or other assets in his hands, or invested money in securities unauthorized by law, or otherwise improvidently managed or injured the property committed to his charge ; or by reason of other misconduct in the execution of his oifice, or dishonesty, drunkenness, improvidence, or want of un- derstanding; he is unfit for the due execution of his ofiice." ^^ An executor or testamentary trustee may now be removed for gross, negligence or bad faith in failing to sell real estate as empowered and directed by the will.^ Although the mere fact that an ex- 16 Emerson v. Bowers, 14 N. Y. 449 ; administration should not be revoked Wood V. Brown, 34 id. 337. These because, prior to the appointment, a eases were decided under the former renunciation of a right to administer statute, which was not so comprehen- had been executed, where it was with- sive in its enumeration of causes as drawn by permission of the court, the Code. (Matter of Treadwell, 37 Misc. 584; "Matter of Keinz, 88 Hun, 298; 34 75 N. Y. Supp. 1058.) N. Y. Supp. 339 ; sm6 nom. Matter of 21 Co. Civ. Proc, § 2685, subd. 2. Eettig, 68 St. Rep. 264. , See Matter of Treadwell, supra. 18 Matter of McGillivray, 138 N. Y. 22 Haight v. Brisbin, 100 N. Y. 219 ; 308. on former hearing, 96 id. 132. Com- 19 Co. Civ. Proc, § 2685, subd. 1. pare Matter of Moss, N. Y. Law J.,. 20 See §§ 303, 361, ante. Letters of Jan. 27, 1892. 345 Revocation of Authokity, Etc. § 431. ecutor, administrator, or trustee has, without lawful authority, borrowed funds intrusted to his charge, does not, ipso facto, call for his removal, nevertheless when his conduct has been such as to endanger the trust property, or to show a want of honesty, or of proper capacity, or of reasonable fidelity, he must be pro- nounced " unfit for the due execution of his office," and must accordingly be deprived of it.^ The representative's refusal to bring an action to set aside a fraudulent conveyance is not nec- essarily a ground for removal;^* nor is the mere delay of an execu- tor to convert real estate into personalty, when the same has increased in value.^ But where an executor or administrator fails to assert his decedent's title to property and connives at a suit to divest it,^ or wrongfully claims ownership of a large portion of the estate and insists upon receiving all benefits there- from,^'^ he is guilty of misconduct and should be removed. So, too, an executor will be removed on the application of his co- executor where he fails to do his part in the management of the estate, and there are constant dissensions between the executors, where it is evident that his continuance in office will prejudice the best interests of the estate.^* Although dishonesty is a ground of objection to appointment only in the case of an executor, it 23 Matter of Petrie, 5 Dem. 352. In ter of Hood, 104 N. Y. 103 ; Matter of Matter of Stanton (18 St. Rep. 807), Ferrigan, 42 App. Div. 1; 58 N. Y. the executrix was removed for a Supp. 920; affd., 160 N. Y. 689; wasteful and improvident manage- Matter of Hiekey, 34 Misc. 360; ment of the estate. In Denton v. San- 69 N. Y. Supp. 844. In Matter ford (39 Hun, 487), the court refused of Leavitt (28 Abb. N. C. 457), an to remove an executor on account of executor was not removed for retain- the fact that he had invested moneys ing in his business money belonging of the estate in the purchase of real to the estate, but was required to give estate situated in another State in bonds to secure the estate against loss, fulfillment of testator's agreement for where it appeared that the petitioners such purchase made in his lifetime, for his removal had assented to the although by reason of a defect in title retention of the money in the business, a loss was sustained by the estate; and its immediate withdrawal would where at the time of the purchase the embarrass the business and involve a land was apparently worth the amount loss to the estate. In Matter of Have- paid and the title apparently good, meyer (3 App. Div. 519), an exec- The taking title to such land in the utor and trustee was removed for de- individual names of the executors, will fiance of the directions of a will, and not justify their removal, where it was for making improper investments, done as an act of prudence and the 24 Matter of Moulton, 32 St. Eep. land was held for the benefit of the 631; 10 N. Y. Supp. 717. estate. In Matter of West (40 Hun, 25 Wilcox v. Quinby, 20 N. Y. Supp. 291), the administrator had resisted 5. See Haight v. Brisbin, supra. all attempts to inventory the property, 26 Matter of Jacob, 5 App. Div. 508 ; and had refused to produce a large 38 N. Y. Supp. 1083. portion of it for that purpose, and had 27 Matter of Gleason, 17 Misc. 510; treated the administrator first en- 41 N. Y. Supp. 418. titled in a disrespectful and unbecom- 28 Matter of Wheaton, 37 Misc. 184; ing manner. Held, " misconduct in 74 N. Y. Supp, 938. the execution of his ofiBce." See Mat- §§ 432, 433. Kevocation of Authority, Etc. 346 is made, by this subdivision, a reason for removal of an admin- istrator also.^^ There can be no doubt that the rule, in respect to grounds of objection to the appointment, should be the same as in respect to causes for revoking the letters of the represen- tative of a decedent. This subdivision practically supersedes a decision whereby a gross breach of duty was held not a cause for removing an executor.*" § 432. Willful violation, of law, etc. — He may also be removed " where he has willfully refused, or, without good cause, neg- lected, to obey any lawful direction of the surrogate contained in a decree or order; or any provision of law relating to the dis- charge of his duty." *^ § 433. False suggestion of fact. — " Where the grant of his let- ters was obtained by a false suggestion of a material fact," they may be revoked.^^ Where the consent of an administrator who is entitled to sole letters, had been obtained to the appointment of a coadministrator by false representations that there was no conflict of interest between them, when in fact, after the grant- ing of such letters, such coadministrator sets up an adverse claim to most of the property which was in the possession of the intes- tate at the time of her death, — this is obtaining a grant of letters " by a false suggestion of a material fact." *^ Independently of statute, the surrogate has power to revoke letters of adminis- tration, obtained upon a false suggestion of a matter of fact, and without due notice to the party rightfully entitled to admin- istration.^* The false suggestions need not be fraudulent, i. e., known to have been false, when made. It is enough that they were false, even though they were made by mistake.*^ 29 See § 307, OMte. consisted in a false affidavit of service 30 Emerson v. Bowers, 14 N. Y. 449. of citation — ■ which affidavit was not And see Wood v. Brown, 34 id. 337; made by the person to whom the let- Coggshall V. Green, 9 Hun, 471. ters were issued. Held, that the sur- 31 Co. Civ. Proc, § 2585, subd. 3. rogate had power to revoke, although The nonfiling of an inventory, if the the statute then specified, as a ground omission is satisfactorily explained, of revocation, only ' the false repre- will not, of itself, justify a removal, sentations made by the person to (Matter of George, N. Y. Law J., Jan. whom the letters were granted. See 16, 1890.) In Matter of Arkenburgh § 54, ante. (11 App. Div. 193; 42 N. Y. Supp. 35 Perley v. Sands, 3 Edw. 325; 965), an oral stipulation in open court Kerr v. Kerr, 41 N. Y. 272. In Oram to file an account was held equivalent v. Oram (3 Redf. 300), letters had to an order under this section. been granted to one claiming to be the 32 Co. Civ. Proc, § 2685, subd. 4. widow of the intestate, and who had 33 Matter of West, 40 Hun, 291; in fact been married to him before affd., Ill N. Y. 687. his death, in good faith supposing that 34 In Proctor v. Wanmaker ( 1 Barb, he had been divorced from his first Ch. 302 ) , the false representation wife. The surrogate, however, having 347 Revocation of Attthobity, Etc. § 434. § 434. Particular grounds against an executor It is obvious that, as an executor is not usually required to give a bond, like an administrator, certain grounds of objection to him are pertinent, which would not be in the case of an administrator. An appli- cation is^ therefore, allowed against an executor for the following, among other, causes : " Where his circumstances are such that they do not afford security to the creditors, or persons interested, for the due administration of the estate." ^^ The former statute read : " Where his circumstances are so precarious as not to afford adequate security for the due administration of the estate." What circumstances will be so considered, must, of course, depend upon the facts of each case as it arises. The surrogate must decide each case on its own features and circumstances.^^ The main point in every case is, whether there is a reasonable doubt that the trust fund is safe in the executor's hands, to be admin- istered as directed.^® It does not necessarily follow that the fund is not safe from the fact that the executor does not own property to the full value of the estate;^® but where the execu- tor's only property consisted of an unliquidated demand, and he was about to remove from the State, and the trust created by the will was to continue for many years, it was held a proper case in which to require him to give security.*" The fact that the executors are " men of inconsiderable means, not transacting business or having any place of business," does not show that their " circumstances are such that they do not afford adequate security for the due administration of the estate," within the meaning of the provision.*^ The allegation that an executor's circumstances are insufficient for the administration of the es- deoided that the divorce which had of letters of administration on the been obtained in Indiana was void for ground that the administratrix was want of jurisdiction, revoked the let- not the widow of the intestate, being ters, and granted administration to previously a divorced woman forbid- the first wife. In Matter of Hether- den to marry in the State of New ington ( 25 Week. Dig. 4 ) , the appli- York, she was permitted to prove a cation was made on the ground that ceremonial or nonceremonial marriage the letters were issued to one claim- to the intestate, without the State, ing to be a widow of the deceased, 36 Co. Civ. Proc, § 2685, subd. 5. whereas her marriage with deceased 37 See Shields v. Shields, 60 Barb, was void by reason of her having con- 56; Hovey v. McLean, 1 Dem. 396; tracted a previous marriage with an- Ballard v. Charlesworth, id. 501. other person still living. Held, that 38 Cotterell v. Brook, 1 Bradf. 148. the court might inquire into the 39 Mandeville v. Mandeville, 8 Paige, validity of Such first marriage for the 475. purpose of ascertaining whether it was «) Wood v. Wood, 4 Paige, 299. And absolutely void, and the marriage see Holmes v. Cock, 2 Barb. Ch. 426. with decedent, therefore, valid. In *i Postley v. Cheyne, 4 Dem. 492, Matter of Gerlach (29 Misc. 90), 494. which was a proceeding for revocation §§ 435-4:37. Revocation of Authoeity, Etc. 348 tate, is not enough to justify his removal;** nor is the fact of his insolvency.*^ It is not material to inquire whether the tes- tator was aware of the want of responsibility at the time of making the will.** § 435. Removal from State — The other grounds for revoking an executor's letters are : " Where he has removed or is about to remove from the State, and the case is not one where a non- resident executor would be entitled to letters without giving a bond; " and "where, by the terms of the will, his office was to cease upon a contingency, which has happened.** The provision with regard to the executor's removal from the State has no ap- plication to the case of one who was a nonresident when his letters were issued.*® § 436. Grounds against temporary administrator of absentee. — An application is allowed against a person appointed temporary ad- ministrator upon the estate of an absentee, according to what appears to be a correct construction of the Code, not only in the cases above mentioned as applying to administrators, but also, in addition thereto, " where it is shown that the absentee has re- turned; or that he is living and capable of returning and resum- ing the management of his affairs; or that an executor, or an administrator in chief, has been appointed upon his estate; or that a committee of his property has been appointed by a com- petent court of the State." ^'' A liberal construction is neces- sary, in case the application for revocation of letters is made by a person interested in the estate of an absentee who " has re- turned," or " is living," e. g., by the absentee himself, inasmuch as the opening clause of the section mentions only a person inter- ested in the estate of a decedent. § 437. By whom and how application made. — The application for revocation of letters testamentary or of administration, in the various cases mentioned, may be made by a creditor or person interested in the estate of a decedent, to the Surrogate's Court from which the letters were issued, upon a written petition duly verified, praying for a decree revoking the same, and that the 42 Grubb V. Hamilton, 2 Dem. 414. Eep. 373. And see Co. Civ. Proc, 43 Matter of Hart, 6 St. Rep. 535; § 2638; § 292, ante. Martin v. Duke, 5 Redf. 600. 46 Postley v. Cheyne, 4 Dem. 492 ; 44 Wood V. Wood, 4 Paige, 299; Matter of Prime, N. Y. Law J., Sep. Freeman v. Kellogg, 4 Redf. 218. 8, 1892. 45 Co. Civ. Proc, § 2685, subds. 6 47 Co. Civ. Proc, § 2685, subd. 8. and 7; Sohn'a Estate, 1 Civ. Proc 349 Revocation of Authority, Etc. § 438. executor or administrator may be cited to show cause why a decree should not be made accordingly.** The fact that an ac- tion is pending for his removal in the Supreme Court is no bar to such action by the surrogate.*^ A creditor of a firm of which the executor, as such, is a partner is not a creditor of the estate.^" Though, formerly, a prima facie valid claim against the estate, established a sufficient interest to authorize the court to pro- ceed on his application,*^ it is now settled that where the rep- resentative, whose removal is sought, denies that the petitioner is a creditor, the surrogate has not jurisdiction to try the issue. *^ An executor who applies for the revocation of letters granted to his coexecutor *^ is a " person interested," but the executor of a deceased coexecutor, not having any rights as against the sur- viving executor, cannot apply for the latter's removal.®* A debtor to the estate of a testator is not a person interested therein, entitling him to apply for the revocation of letters is- sued to the executor.^' A parent, as the natural guardian of a child beneficially interested, cannot make the application,^® nor can the widow of a son of decedent's husband by a former wife.*^ An executor, however, who is also a legatee, under an alleged will of a later date than that already admitted to probate, is such a person, pending proceedings on the probate of the paper propounded by him.®* § 438. The petition and citation — The petition must set forth the facts and circumstances, showing that the case is within the statute.®® Besides the allegations of interest or creditorship, it must specify the acts or omissions of the executor or adminis- trator, or other grounds, upon which the prayer for revocation of his letters is based. These will vary, according to the clause of the statute under which the applicant proceeds. Where an executor's removal is asked for on the ground that his circum- stances are so precarious as not to afford adequate security for the due administration of the estate, the petition should set forth 48 Co. Civ. Proc, § 2685. 53 Hassey v. Keller, 1 Dem. 577. «Hood V. Hood, 2 Dem. 583; cit- 64 Shook v. Shook, 19 Barb. 653; ing Wood V. Brown, 34 N. Y. 337; Fosdick v. Delafield, 2 Eedf. 392. Quackenboss v. Southwick, 41 id. 117. sSDrexel v. Berney, 1 Dem. 163; 3 50 Matter of Stern, 29 St. Rep. 216; Civ. Proc. Eep. 122. 9 N. Y. Supp. 445. 56 Quin v. Hill, 6 Dem. 39. 51 Cotterell v. Brock, 1 Bradf. 148. 67 Stapler v. HoiJman, 1 Dem. 63. See Co. Civ; Proc, § 2514, subd. 11, 58 Cunningham v. Souza, 1 Eedf. and § 96, ante. 462. 52 Matter of Wheeler, 46 Hun, 64; 59 Co. Civ. Proc, § 2686. Estate of Gillingham, 10 St. Rep. 864; Susz V. Forst, 4 Dem. 346. § 439. Revocation of Authokity, Etc. 350 particulars as to the situation and value of the estate, and the pecuniary circumstances of th« executor, so as to make a prima facie case of doubt whether the estate is safe in his hands; an allegation following the words of the statute, and verified upon information and belief merely, is insufficient.^ The proceeduig contemplated by this statute is a separate proceeding, asking for no other relief. Hence, a creditor's application to compel an administrator to file an intermediate account should not in- clude an application for a revooation of his letters,®^ though, on appearance and consent, an order of removal may be made.®^ The Code does not provide, as it does in most cases, that a citation shall issue upon the presentation of the petition, but requires, in the first instance, proof by affidavit or oral testimony, satis- factory to the surrogate, of the truth of the allegations contained in the petition. If the surrogate is satisfied, he must issue a citation according to the prayer of the petition; except that where the petitioner's case is based on the alleged precarious circum- stances of the executor, and the latter has given a bond to obvi- ate that objection, before the issuing of letters to him, the sur- rogate may, in his discretion, entertain or decline to entertain the application.** Except in the cases where the power of re- moval may be summarily exercised, a surrogate has no jurisdic- tion to revoke letters upon an ex parte application, and if he pro- ceeds to do so, he may be restrained by writ of prohibition.** It is not enough to serve the citation upon the executor only, as he is not " united in interest " with the legatees within the mean- ing of the Code, section 2517.*^ § 439. Proceedings upon the hearing. — The executor should file a verified answer to the allegations of the petition, if he desires 60 Colegrove v. Horton, 11 Paige, Where the acting surrogate, in a 261; Atkinson v. Striker, 2 Dem. 261; proceeding to remove administrators Moorhouse v. Hutchinson, id. 429. on the charge of conspiring to swindle 61 Matter of Meyers, N. Y. Law J., the estate, dismissed the charge as Feb. 21, 1893; Matter of Patterson, to conspiracy, but ordered that the 79 Hun, 371; 29 N. Y. Supp. 451; petitioner should have the right to affd., 146 N. Y. 327. make an eoo parte application to the 62 Matter of Hernandez, N. Y. Law court for the immediate removal of J., Nov. 25, 1892. A successor, how- the administrators, if they should ever, can only be appointed on a new disregard the provisions of the de- application on notice to all parties in- cree requiring them to take certain terested. (lb.) measures in another action, and apply 63 Co. Civ. Proc., § 2686. See Peo- for the appointment of petitioner as pie V. Hartman, 2 Sweeny, 576; Ste- administratrix, — Held, that such order vens V. Stevens, 3 Eedf. 507. was void. (Matter of Engelbrecht, 15 6* People ex rel. Sprague v. Fitz- App. Div. 541; 44 N. Y. Supp. 551.) gerald, 15 App. Div. 539; 44 N. Y. 65 Fountain v. Carter, 2 Dem. 313 j Supp. 556; affd., 156 N. Y. 689. § 70, mte. 351 Revocation of Atjthoeity, Etc. § 440. to contest the application. The burden of proof then rests upon the petitioner;^" the lines of evidence have been indicated above. The validity of the complainant's demand, and the plea of lira- itations, should not be tried upon the application.*^ To justify the removal of an executor, proof of his incapacity should be very strong.*® § 440. Dismissing proceedings, notwithstanding proof Upon the return of the citation, and, of course, after the introduction of the evidence, the surrogate may, in his discretion, although an objection is established to his satisfaction, dismiss the proceed- ings upon such terms, as to costs, as justice requires, and alloM' the letters to remain unrevoked, in either of the following cases: 1. AVhere the executor or administrator has disobeyed a direc- tion of the law or of the surrogate, as to the discharge of his du- ties ; if he obeys it and makes suitable amends to the injured per- sons. 2. Where the executor's or administrator's letters were obtained by a false suggestion of fact; if they ought to have is- sued notwithstanding. 3. Where the proceedings are against an executor, and his circumstances afford inadequate security; if, within a reasonable time, not exceeding five days, he gives a bond such as he would have been required to give to procure let- ters, in case a like objection, made before they were issued, had been sustained.** Such a bond must be the same as would be ex- acted of an administrator upon the estate of an intestate, that is, not less than twice the value of the personal estate;™ subject, however, to the qualification that, in fixing the penalty thereof, the surrogate must take into consideration the value of the real property which may come to the hands of the executor by virtue of any provision contained in the will.''^ In such a case, as in all others, where the surrogate or the statute requires a bond of an executor, the surrogate may direct securities to be deposited with him to reduce the penalty of the bond.^^ The sureties in a bond given by an executor under the foregoing provision, cannot limit their liability to deficiencies or defalcations of the executor, oc- curring g,fter the giving of the bond.'^^ «6 Cotterell v. Brock, 1 Bradf. 148. Kasson, 46 App. Div. 348 ; 61 N. Y. 8T Matter of Wheeler, 46 Hun, 64; Supp. 569. Estate of Gillingham, 10 St. Rep. 864. 70 See Co. Civ. Proc, § 2667 ; also 68 Matter of Johnson, 15 St. Rep. c. XV, post. 752; Matter of Wood, 70 Hun, 230; 71 Co. Civ. Proc., § 2645. 24 N. Y. Supp. 64. 72 Co. Civ. Proc, § 2595. 69 Co. Civ. Proc, § 2687 ; Matter of 73 So held, under the Revised Stat- Leavitt, 28 Abb. N. C. 457; Matter of utes, in Scofield v. Churchill (72N. Y. 565). It has been held that, where §§ 441, 442. Eevocation of Authokity, Etc. 352 § 441. Decree, where proceedings not dismissed "Where the ob- jections of the creditor, or person interested, or any of them, are established to the surrogate's satisfaction, and he does not dis- miss the proceedings as above mentioned, he must make a decree revoking the letters issued to the person complained of.'^* The decree must be recorded.''^ The costs of the application, if granted, should, as a general rule, be charged on the fund;'^* but, if denied, ought to be paid by the petitioner personally." Pend- ing an appeal from the decree, the court will not appoint a tem- porary administrator, unless in a peculiar case,''® as an appeal does not stay the execution of such a decree.™ § 442. Eevocation upon resignation. — The statute has changed the common-law rule forbidding the resignation of an executor or administrator who has once assumed the duties of the office, and now he has the right, upon reasonable cause shown, to re- sign his trust, and the surrogate is empowered to accept it, and to discharge him from the further execution thereof.*" It is provided that " an executor or administrator may, at any time, present to the Surrogate's Court a written petition, duly verified, praying that his account may be judicially settled; that a decree may thereupon be naade, revoking his letters, and discharging him accordingly.*^ It does not follow that the surrogate is bound to entertain the petition. On the contrary, he may, in his dis- cretion, decline to entertain the application.*^ Thus, the court the executor is empowered to sell the '^s Matter of Dunn, 3 Law Bui. 65. real property, the security required of See generally as to the power of the him should be for double the amount surrogate pending an appeal, Matter of the proceeds which may come into of Angevine, 1 Tuck. 245; Vreeden- his hands for the benefit of others, burgh v. Calf, 9 Paige, 128; Matter unless they are very large, in which of Hancock, 27 Hun, 575. case security to a limited amount be- T9 Co. Civ. Proc, § 2583. yond the fund should be deemed suffi- 80 For the former rule as to admin- cient. (Holmes v. Cock, 2 Barb. Ch. istrators, see Flinn v. Chase, 4 Den. 426.) So, where a clear vested in- 85; Matter of Dyer, 5 Paige, 534. In ■ terest in a part or all of the fund is Matter of Curtiss (9 App. Div. 285), shown to exist in the trustee, security it is said that an executor cannot re- will be required only for the residue, sign; he must apply to have his let- (Cotterell v. Brock, 1 Bradf. 148.) ters revoked, but this would seem to 74 Co. Civ. Proc, § 2687. Notwith- be a mere refinement of expression, standing the reversal of the surro- As to resignation by a testamentary gate's decree admitting a will to pro- trustee, see § 450, post. bate, the executor remains such, and 81 Co. Civ. Proc, §§ 2689, 2690. is entitled to possession of the prop- These sections of the Code superseded, erty until his letters are revoked by so far as executors and administrators the surrogate. are concerned, the provisions of L. 75 00. Civ. Proc, § 2498, subd. 5; 1879, c. 406, although that act was § 2499. not expressly repealed until 1893. 76 Holmes v. Cock, 2 Barb. Ch. 426. 82 Co. Civ. Proc, § 2689, last sen- 77 Shook V. Shook, 19 Barb. 653. tence. 353 Eevocation of Authoeity, Etc. §§ 443, 444. will not revoke an executor's letters on his own request, upon allegations that he has interests, as surviving partner of the decedent, antagonistic to his duties as executor, necessitating re- sort to another tribunal where the estate should be represented by a disinherited person, the surrogate having ample power to adjust the equities of the case.^* § 443. The petition and order If the surrogate decides to en- tertain the application, " the proceedings must be, in all respects, the same as upon a petition for a judicial settlement of the peti- tioner's account; except that, upon the hearing, the surrogate must first determine whether sufficient reasons exist for grant- ing the prayer of the petition. If he determines that they ex- ist, he must make an order accordingly, and allowing the petitioner to account, for the purpose of being discharged." ^ The petition should, therefore, set forth " the facts upon which the application is founded," that is, some reason for the desire of the executor or administrator to be relieved, though, gener- ally, we should think that a statement of such causes as ill health, contemplated absence from the State, want of harmony between coexecutors or administrators, or between the represen- tatives and the beneficiaries, and the like, would be held to be sufficient. In all other respects, the petition " must conform to a petition, praying for a judicial settlement of the account of an executor or administrator." ®° It should recite the names of the same persons, who are required to be cited upon an ordi- nary settlement of an executor's or administrator's account. Ci- tation should be served upon such persons in the same manner as in an ordinary accounting. The petitioning executor or ad- ministrator, having fully accounted and paid over all money which is found to be due from him to the estate, and delivered over all books, papers, and other property of the estate in his hands, either into the Surrogate's Court, or in such manner as the sur- rogate directs, is entitled to a decree, revoking his letters and discharging him accordingly.*® § 444. Accounting on revocation of letters Upon the revoca- tion of the letters, the Surrogate's Court may compel a judicial settlement of the accounts of the executor, administrator, or tes- 83 Becker v. Lawton, 4 Dem. 341 ; 84 Co. Civ. Proc, § 2690. citing Matter of Saltus, 3 Abb. Ct. 85 Co. Gov. Proc, § 2689. App. Dee. 243 ; Marre v. Ginochio, 2 86 Co. Civ. Proc., § 2690. See Mat- Bradf. 165; Matter of Stouvenell, 1 ter of Bernstein, 3 Bedf. 20. Tuck. 241. 23 § 445. REvocATioiir of Authoeity, Etc. 354 tamentary trustee, as the case may be.*'^ In its discretion, the court may, by its decree of revocation, include an order requir- ing the person, whose letters are revoked, to account for all money and other property in his hands, and to pay and deliver the same 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 pro- ceeding for that purpose, then pending or thereafter to be brought.®* The Surrogate's Court has the same jurisdiction, upon the petition of the successor, or of a remaining executor, ad- ministrator, or trustee, to compel the person, whose letters have been revoked, to account for, or deliver over money or other property, and to settle his account, which it would have upon the petition of a creditor or person interested in the estate, if the term of office, conferred by the letters, had expired by its own limitation.®^ The surrogate has no power to compel the committee of a lunatic trustee, who has been removed, to ac- count for its ward's administration as executor and trustee and deliver up the property of the trust to his cotrustee or to his successor. Recourse should be had to the tribunal which ap- pointed the committee.®" § 445. Appointment and powers of successor. — The Surrogate's Court, making the decree of revocation, has, except in a case where it is otherwise specially prescribed by law, the same power to appoint a successor to the person whose powers have ceased as if the letters had not been issued. ^^ And where letters of all the executors or all the administrators, to whom letters have been issued, are revoked as to all of them, the surrogate is ex- pressly required to grant letters of administration to one or more persons, as their successors, in like manner as if the former let- 87 Co. Civ. Proc, §§ 2726, as 90 Matter of Fisher, N. Y. Law J., amended 1893, 2807. May 20, 1891. " Sections 2345-2348 88 Co. Civ. Proc., § 2603. But a de- of the Code provide a way to procure eree which discharges the representa- a conveyance of real estate held as tive should not direct him to retain trustee by one who has become a luna- certain assets pending a litigation tic; and section 2339 seems to confer concerning them. (Matter of 01m- exclusive jurisdiction over the com- Stead, 24 App. Div. 190; 49 N. Y. mittee upon the court appointing it. Supp. 104.) I regard the omission in section 2606 89 Co. Civ. Proc, § 2605. See Dun- of a provision for calling such a com- ford V. Weaver, 21 Hun, 349; Casoni mittee to account in the same manner V. Jerome, 58 N. Y. 315; Matter of as the representative of a deceased Seitz, 16 Misc. 522; 40 N. Y. Supp. executor or administrator as signifi- 206; affd., sui nom. Matter of Man- cant." (Per Eansom, S., lb.) hardt, 17 App. Div. 1. 9i Co. Civ. Proc, § 2605. 355 EEvocATioisr of Authority, Etc. §§ 446-448. ters had not been issued. ^^ The appointment of such a successor to an executor is considered under the head of administration with the will annexed; that of a successor to an administrator, under the head of administration de bonis nonj and that of a successor to a testamentary trustee, under the head of letters testamentary.®^ § 446. Effect on powers of executor, etc., as trustee — " Where an executor or administrator is also a testamentary trustee, a decree, revoking his letters, does not affect his power or authority as testamentary trustee," except as specially provided in the Code in relation to the latter officer.®* § 447. Right to reappointment. — The removal of an adminis- trator, for failure to furnish sureties, does not disqualify the person removed from being reappointed; therefore he is entitled to notice of an application for letters made by one having a right inferior to his.®® But if another person is thereafter duly appointed, his preference is lost.®® § 448. Cessation of powers — Upon the entry of a decree re- voking letters issued to an executor or administrator, his powers cease. ®^ An appeal from the decree does not stay its execution.®^ But the revocation does not affect the validity of any act, vrithin the powers conferred by law upon the executor or administrator, done by him before the service of the citation, where the other party acted in good faith; or done after the service of the cita- tion, 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, permitted him to do the same, notwithstanding the pendency of the special proceedings against him; and he is not liable for such an act done in good faith.®® This is substantially the rule at common 92 Co. Civ. Proc, § 2693. An ad- is also a testamentary trustee, may be ministrator with the will annexed removed in both capacities by one should not be appointed upon the decree. resignation of the executors and trus- 95 Barber v. Converse, 1 Eedf. 330. tees, where the amount of the resid- 93 Matter of Williams, 18 Abb. Pr. uary estate has been ascertained for 350. There is no provision of law au- the purposes of the trust. (Matter thorizing the reissue of letters to one of Curtiss, 15 Misc. 545; 37 N. Y. whose letters have been revoked be- Supp. 586; affd., 9 App. Div. 285.) cause he was adjudged insane, and who 93 See ante, §§ 322, 326, 368. has since become competent, and been 94 Co. Civ. Proc, § 2688; supersed- discharged from his committee. (Mat- ing Matter of Grossman, 20 How. Pr. ter of Dearing, 4 Dem. 81.) 350,. and confirming Matter of Bull, 45 97 Co. Civ. Proc, § 2603. Barb. 334; 31 How. Pr. 69. See Co. 98 Co. Civ. Proc, § 2583. Civ. Proc, § 2819, for the cases and 99 Co. Civ. Proc, § 2603. This pro- manner in which a representative, who vision is manifestly framed in refer- § 449. Eevocation of AuthoeitYj Etc. 356 law, though as to the effect of a revocation of letters on the intermediate acts of the former representative, a distinction is made betvi^een grants of letters which are void and those which are merely voidable. But whether the probate or letters of administration be void or voidable, if the grant be by a court of competent jurisdiction, a lona fide payment to the executor or administrator, of a debt due to the estate, will be a legal discharge to the debtor.-^ But the person to whom any payment of money or delivery of property is made, whether as husband, wife, next of kin, or legatee of the decedent, is nevertheless liable to re- spond therefor, to the proper person, upon the revocation of the letters, whether the revocation is made because a supposed de- cedent is living, or because a will is discovered after administra- tion granted in a case of supposed intestacy, or which revokes a prior will upon which the letters in question were granted.^ AETICLE SECOND. EEVOCATIOIT OF ATTTHOEITY OF TESTAMENTARY TRUSTEES. § 449. Surrogate's jurisdiction — In speaking, on a previous page, of the issue of letters testamentary to executors, who are also, by the terms of the will, trustees of the estate or any part of it, for a particular purpose, we pointed out the distinction between the functions of the two offices of executorship and trusteeship, and stated, incidentally, that where the offices were intended by the testator to be essentially distinct, whether held by the same person, or by different persons, the Surrogate's Court had no authority to issue letters of trusteeship, separately from letters testamentary, except that, in the case of the death, resignation, or removal of a testamentary trustee, the court had enee to a decree in a special proceed- that "when he shall have paid over the ing adverse to the executor or admin- sum " " found due from him as afore- istrator, commenced for the purpose of said," to his successor, his resignation procuring a revocation, and in which be accepted and he be discharged. — a citation issued; yet it has appeared. Held, that this did not deprive him of in the present chapter, that a decree the right to the possession of the of revocation may be issued under securities of the estate, and he could many different circumstances. But the maintain an action therefor against a provision cited expressly applies to bank with which he had deposited any revocation effected by " a decree them before the decree was rendered, made as prescribed in this chapter " (Van Buren v. First Nat. Bank of (c. 18 of the Code). In a decree en- Cooperstown, 53 App. Div. 80; 65 N. tered upon an executor's petition to Y. Supp. 703.) resign, charging him with a balance, 1 Wms. on Exrs. (6th Am. ed.) 659. and without directing him to deliver 2 Co. Civ. Proc, § 2604. it to his successor, it was provided 357 Bevocatiojst of Atjthoeity, Etc. § 450. power to appoint " a successor " to such trustee.^ Unlike a person named as executor, a testamentary trustee, having renounced, and letters having issued to others, cannot, on his subsequent retraction, be restored as trustee.* The jurisdiction of the Sur- rogate's Court, in regard to testamentary trustees, is limited to the cases of " trust created by the will of a resident of the State, or relating to real property situated within the State," and this without regard either to the residence of the trustee or the date of the will.^ It has power to accept the resignation of such a testamentary trustee, and, in a proper case, to require him to give security in the same cases as an executor may be required to do; also to remove him from office upon substantially the same grounds as will warrant the removal of an executor; and in case of his resignation, removal, death, or lunacy, to ap- point a successor. § 450. When trustee is also executor, etc. — It is expressly pro- vided, however, that where the same person is a testamentary trustee, and also the executor of the will, or an administrator upon the same estate, proceedings taken by or against him, for his resignation, or removal, or to require him to give security, do not affect him as executor or administrator, or the creditors of, or persons interested in, the general estate,^ except in one of the foUovrang cases: 1. " Where he presents a petition pray- ing for the revocation of his letters, he may also, in the same petition, set forth the facts, upon showing which he would be allowed to resign as testamentary trustee; and may thereupon pray for a decree allowing him so to resign, and for a citation accordingly. 2. Where a person presents a petition praying for the revocation of letters issued to an executor or administrator; s Where a trustee, named in , a will, trustees will be considered in chapter refuses or neglects to accept the trust, XVII. For the old rule as to inability and qualify as trustee, for a period of of a trustee to resign after having twenty years, he must be deemed to undertaken the trust, see Cruger v. have renounced the trust, and a Halliday, 11 Paige, 314; Wood v. vacancy is thereby created which may Wood, 5 id. 596; Craig v. Craig, be filled by the court. (Matter of 3 Barb. Ch. 76; Re Wadsworth, 2 id. Robinson, 37 N. Y. 261; which was 381; Matter of Eobinson, 37 N. Y. the case of an appointment by the 261; Matter of Bernstein, 3 Redf. 20. Supreme Court.) And see Ross v. 6 Co. Civ. Proc, § 2819, which Roberts, 2 Hun, 90; affd., 63 N. Y. adopts the rule prevailing before the 652; Dunning v. Ocean Nat. Bank, 6 Code. See Wood v. Brown, 34 N. Y. Lans. 296; affd., 61 N. Y. 497; Green 339; Leggett v. Hunter, 19 id. 445; V. Green, 4 Redf. 357. 25 Barb. 81; Craig v. Craig, 3 Barb. * See § 321, ante. Ch. 76 ; Matter of Wadsworth, 2 id. 5 Co. Civ. Proc, § 2820. The gen- 381. eral duties and powers of testamentary § 451. REvocATioiir op Attthoeity, Etc. 358 and any of the facts set forth in the petition are made, by the provisions of this title, sufficient to entitle the same person to present a petition praying for the removal of a testamentary trustee; the petitioner may pray for a decree removing the per- son complained of in both capacities, and for a citation accord- ingly." In either case, proceedings for the resignation or removal of the testamentary trustee, and for the judicial settle- ment of his account, may be taken in connection with, or sep- arately from, the like proceedings upon the petition for the revo- cation of the letters, as the surrogate directs. § 451. Petition for leave to resign — A testamentary trustee may, at any time, apply to the Surrogate's Court for leave to resign his trust. The application must be by the verified petition of the trustee. It is always a condition of the acceptance of such resignation that his accounts be first judicially settled and that he pay over all money belonging to the trust and deliver all books, papers, and other property of the trust in his hands, either into the Surrogate's Court, or as the surrogate directs. Upon such petition, an order to show cause may be granted, directed to all persons who are entitled, absolutely or contin- gently, by the terms of the will or by operation of law, to share in the funds or estate, or the proceeds of any property held by the trustee.'' The petition must set forth the facts upon which the application is founded, conforming to the petition of an executor for a judicial settlement of his accounts, and should state some reasons, such as ill health, contemplated absence from the State, disagreement with cotrustee, dissatisfaction of the cestui que trust, or the like. The fact that the trustee is " too busy with his own matters " to continue in the service, is not a " sufficient reason " for permitting him to resign, especially where the beneficiaries of the trust are opposed to such a course.* The surrogate has a discretion to entertain or to decline to entertain the petition,® and should require proof of the allegations of the 7 Co. Civ. Proc, § 2814. sign. A provision in a will for the 8 Baier v. Baier, 4 Dem. 162. In exigency of a resignation of an execu- Tilden v. Fiske (4 id. 357), an exec- tor may be considered in determining utor and testamentary trustee who the propriety of allowing such resigna- had been engaged for sixteen years in tion. the execution of a trust, the admin- 9 Co. Civ. Proc., § 2814. In Matter istration of which was nearly com- of Foster (7 Hun, 129), the trustee pleted, and who intended to make was relieved from his trust, upon his changes in his «manner of life which own petition, by an order of the Su- would involve prolonged absence from preme Court; but the order was the United States, was allowed to re- opened, on the application of the 359 Revocation of Attthoeitt, Etc. § 452. petition, wliere they are put in issue. ■"^ If the application is entertained, the surrogate may impose reasonable conditions upon granting it, as, for example, that the trustee waive all right to commissions.^^ If he determines that sufficient reasons exist there- for, he may allow the trustee to account; and having accounted, and paid and delivered over the fund, and the books and papers of the trust, a decree will be granted accepting the resignation, and discharging him accordingly.-'^ § 452. Eequiring trustee to give security. — As in the case of executors, testamentary trustees may be required to furnish a bond for the faithful performance of their duties. In general, where the executor, as such, is also trustee, his bond as executor is security for the faithful performance of his duty as trustee; but where the will contemplates that the two offices, though held by the same person, are to be distinct and separate, then, it is said, the executor's bond is not security for the trustee.''* In such a case, or where the trustee is a person other than the executor, any person, beneficially interested in the execution of the trust, may present to the Surrogate's Court a verified peti- tion " setting forth, either upon his knowledge, or upon his in- formation and belief, any fact, respecting a testamentary trustee, the existence of which, if it was interposed as an objection to granting letters testamentary to a person named as executor in a will, would make it necessary for such a person to give security, in order to entitle himself to letters." " The petition shoiild pray for a decree, directing the testamentary trustee to give security for the performance of his trust; and that he may be cestui que trust, upon allegations of 12 See ante, § 444. improvident and Improper invest- 13 See § 320, a/nte. ments, in respect of v^hich she claimed 14 Co. Civ. Proc, § 2815. The court an accounting, and a reference was is not confined to a proceeding insti- ordered, pending which the trustee tuted by a petition filed under this died. The court thereupon granted an section, but may make an order to order bringing in the representatives such effect, where objection is duly of the trustee as parties to the pro- taken, on a motion to open a decree ceeding, which order was sustained by rendered upon an accounting, and the General Term, holding that the modify it by delivering property to trustee's proceeding was not purely a the applicant who occupies the posi- personal one, but such as directly af- tion of trustee under a will. (Kelsey feoted his estate in the hands of his v. Van Camp, 3 Dem. 530.) An ap- representatives. plication to compel a trustee, of ample 10 Matter of Cutting, 49 App. Div. means, against whom no charge of 388; 63 N. Y. Supp. 246. misconduct is made, and who has re- 11 Matter of Curtiss, 15 Misc. 545 ; linquished his own business eo as to de- affd., on opinion below, 9 App. Div. vote his entire attention to the estate, 285. See Matter of Allen, 96 N. Y. should be denied. (Matter of Weil, 327. 49 App. Div. 52; 63 N. Y. Supp. 688.) § 453. Eevocatioit of Authority, Etc. 360 cited to show cause why such a decree should not be made. Upon the presentation of the petition, a citation will issue. " Upon the return of the citation, a decree, requiring the testamentary trustee to give such security, may be made, in a case where a per- son so named as executor can entitle himself to letters testamen- tary only by giving a bond; but not otherwise." ^^ The security to be given must be a bond to the same effect, and in the same form, as an executor's bond. All the provisions of the Code, applicable to the bond of an executor, or to the rights, duties, and liabilities of the parties thereto, including the release of the sureties, and the giving of a new bond, apply to the bond -so given, and to the parties thereto." ^® § 453. Grounds for removal of trustee. — The Surrogate's Court has jurisdiction, likewise, to remove a testamentary trustee, upon the petition of any person beneficially interested in the execu- tion of the trust, in the following cases :^^ 1. Where, if he was named in the will as executor, letters testamentary would not be issued to him, by reason of his personal disqualification or incompetency. 2. Where, by reason of his having wasted or im- properly applied the money or other property in his charge, or invested money in securities unauthorized by law, or otherwise improvidently managed or injured the property committed to his charge, or by reason of other misconduct in the execution of his trust, or dishonesty, drunkenness, improvidence, or want of understanding, he is unfit for the due execution of his trust. 3. Where he has failed to give a bond, as required by a decree, made as prescribed in the last two sections [sections 2815, 2816] ; or has willfully refused, or without good cause neglected, to obey a direction of the surrogate, contained in any other decree, or in an order, made as prescribed in this title; or any provision of law, relating to the discharge of his duty." The removal may be made upon the petition of a single beneficiary, but the surrogate may in his discretion require notice to other parties in interest, in order that they may be heard in respect to the se- 15 Co. Civ. Proc, § 2815. c. 482, prior to the passage of which, 16 Id., § 2816. See e. XV, post. surrogates, generally, had no power to 17 Co. Civ. Proc, § 2817. See Mat- remove a testamentary trustee. (Bet- ter of Morgan, 66 N. Y. 618; Bronson zell v. Barber, 6 Hun, 535.) That act, V. Bronson, 48 How. Pr. 481 ; Matter however, conferred such power, even of Wadsworth, 2 Barb. Ch. 381; Mat- where the title to real estate vests in ter of McKeon, 37 Misc. 658; Matter the trustee by the terms of the will, of Mallon, 38 id. 27. The foregoing (Clapp v. Brown, 4 Eedf. 200.) section revises a provision of L. 1871, 361 Revocation of Authority, Etc. § 453. lection of a new trustee and the propriety of exacting a bond.^^ It is better practice, if not essential, to have a citation in all cases, to be served at least upon the trustee whose removal is sought.^® When it appears that efforts to serve it would be futile, the court will grant the relief immediately after the issuance of the citation.^" The authority thus conferred upon Surrogates' Courts, in respect to the removal of a testamentary trustee, is not so broad as that possessed by the Supreme Court, which may make a removal where " for any cause " the incumbent " shall be deemed an unsuitable person to execute the trust." ^ But the surrogate may remove a testamentary trustee for the same causes for which executors are removable,^^ which have already been detailed. It is only necessary here to cite some cases which are particularly applicable to testamentary trustees. A trustee who delegates to another the active duties of the trust, allow- ing his partner to manage the estate for his own benefit, taking second mortgages, converting good securities, and lending the proceeds in worthless or inadequate mortgages, and exposing the funds to risks of loss fOr his own profit, is not only improvident and incompetent, but dishonest, for which he is liable to removal by the surrogate.^^ It is a good ground for removing a testa- is Lane v. Lewis, 4 Dem. 468 ; citing 234. See Matter of Roosevelt, 5 Eedf . Matter of Whitehead, 3 id. 227; 601. One of two executors had re- lompkins V. Moseman, 5 Eedf. 403; fused to join in a deed of land di- People V. Norton, 9 N. Y. 176 ; Mil- rected to be sold and the proceeds dis- bank v. Crane, 25 How. Pr. 193 ; Mat- tributed. Held, that the power to sell ter of Stuyvesant, 3 Edw. Ch. 299; and distribute was so connected with Matter of Jones, 4 Sandf. Ch. 615; that of an executor that no separate Matter of Robinson, 37 N. Y. 261. proceeding could be brought to remove But compare Russak v. Tobias, 12 Civ. him as trustee, but that his action had Proo. Rep. 390; Matter of Reinisch, been so flagrant that in this case the 20 App. Div. 416; 46 N. Y. Supp. 902; petition should be granted. (Oliver Matter of Welch, 20 App. Div. 412; v. Frisbie, 3 Dem. 22.) The court 46 N. y. Supp. 689; affd., 154 N. Y. should not remove a testamentary 774. trustee on account of ill-feeling to- la Hamilton v. Faber, 33 Misc. 64. ward him on the part of a cotrus- 20 Matter of Haussman, N. Y. Law tee, engendered by his making a J., May 9, 1891. lawful claim for commissions. (Rus- 21 1 R. S. 730, § 70; L. 1896, c. 547, sak v. Tobias, 12 Civ. Proc. Rep. 390.) § 92. See Quackenboss v. Southwick, As to the essentials of a, prima facie 41 N. Y. 117; Blake v. Sands, 3 Redf. case justifying the removal of a trus- 168; Trask v. Sturges, 31 Misc. 195; tee, see Ferris v. Ferris, 2 Dem. 336. affd., 56 App. Div. 625 ; revd., on Where the circumstances of one of two other points, 170 N. Y. 482; Matter testamentary trustees are such as not of Hoysradt, 20 Misc. 265; Disbrowv. to afford adequate security for the Disbrow, 46 App. Div. Ill; affd., 167 proper discharge of his duties, he can- N. Y. 606. not be relieved from furnishing a 22 Matter of Cady, 36 Hun, 122; bond merely by establishing that his affd., 103 N. Y. 678. cotrustee is solvent and responsible. 23 Savage v. Gould, 60 How. Pr. (Matter of Sears, 5 Dem. 497.) § 453. Eevocatiost of Authority, Etc. 362 mentary trustee that he is a nonresident alien, upon which ground he was refused letters testamentary, although he had never acted as such, nor signified his acceptance of the office.^ But in or- der to justify the removal of a testamentary trustee, upon the ground that, by an improper application of trust moneys or an investment in securities unauthorized by law, he has demon- strated his unfitness for the due execution of his trust, it must appear that his acts have been such as to endanger the trust property, or to show a want of honesty, or of proper capacity, or of reasonable fidelity. ^^ Thus, the investment of trust funds in securities unauthorized by law is not, of itself, ground for the removal of the trustee, where the trust fund is not endangered and want of honesty or capacity is not shown.^® On general principles, an application to remove a trustee, upon the ground that he has converted a portion of the trust property to his own use, will not be defeated by proof that he has made a set- tlement with those of the beneficiaries whose property he had converted, and that the residue of the trust property is then in possession of and properly invested by his cotrustees.^' Where, however, the cestui que trust has, for more than twenty years, acquiesced in the trustee's retention of the trust fund in the investments in which it came into his hands, though unques- tionably in violation of his duty, and has received interest thereon in excess of what would have been realized from investment se- curities, it cannot be said that the trustee has been improvident or is unfit for the execution of his trust.**^ But whatever may be the ground urged for the trustee's removal, he is entitled in every case to have the issues raised by his answer determined upon common-law evidence.^* 2* Lane v. Lewis, 4 Dem. 468; s. c. Supp. 327.) So the omission to charge as Estate of Brick, 9 Civ. Proc. Rep. herself with rents collected after the 397. Compare Farmers' Loan & Trust death of her father when she knew Co. V. Hughes, 11 Hun, 130. that they constituted assets of his 25 Morgan v. Morgan, 3 Dem. 612; estate, of which she was executrix, is Dow V. Dow, 45 St. Eep. 5 ; 18 N. Y. carelessness and inattention sufficient Supp. 222. to warrant her removal. The fact of 26 Matter of O'Hara, 62 Hun, 531; her good faith and honesty is not 17 N. Y. Supp. 91; Elias v. Schweyer, enough to prevent her removal. (lb.) 13 App. Div. 336 ; 43 N. Y. Supp. 55. See Wilcox v. Quinby, 42 St. Eep. 159 ; Evidence that a trustee had omitted 16 N. Y. Supp. 699. to charge herself with rents collected, 27 Matter of Wiggins, 29 Hun, 271. with an intent to conceal them from 28 Matter of Seymour, N. Y. Law those interested and to convert them J., June 5, 1891. to her own use is dishonesty, suffi- 29 Matter of Scott, 49 App. Div. cient to warrant her removal. (Mat- 130; 62 N. Y. Supp. 1059. ter of Smith, 26 St. Eep. 235; 7 N. Y. 363 Revocatioit of Authobity, Etc. § 454. § 454. Appointment of successor — " When a sole testamentary trustee dies or becomes a lunatic, or is by a decree of the Sur- rogate's Court removed or allowed to resign, and the trust has not been fully executed, the same court may appoint his suc- cessor, unless such an appointment would contravene the express terms of the will. When one of two or more testamentary trus- tees dies or becomes a lunatic, or is, by decree of the Surrogate's Court, removed or allowed to resign, a successor shall not be appointed, except where such appointment is necessary in order to comply with the express terms of the will, or unless the same court, or the Supreme Court, shall be of the opinion that the appoint- ment of a successor would be for the benefit of the cestui que trust. Unless and until a successor is appointed, the remaining trustee or trustees may proceed and execute the trust as fully as if such trustee or trustees had not died, become lunatic, been removed or resigned." ^^ It is not in every such case that a suc- cessor will be appointed, for where no duties remain to be per- formed, except to make certain payments, there is no need of a new trustee as the executor of the deceased trustee may be required to make them.^^ The power to appoint a successor is not confined to the case of a single or sole trustee, but the court may appoint one or more successors to several trustees who have resigned.^^ It is the better practice not to appoint the successor until the completion of the accounting of the present trustee and an order entered directing the turning over of the estate; otherwise, some difficulty may be encountered in fixing the pen- alty of the new trustee's bond.^* But, as a matter of jurisdic- tion, the surrogate has the power to make such appointment even before the entry of the order discharging the predecessor.^* It should also be noted that when a person, who is also executor and trustee, resigns his authority as trustee, and his resignation is accepted, this does not affect the exercise of his function as executor. His powers in the latter capacity, including a power 30 Co. Civ. Proc, § 2818. An exec- cesser, see People ex rel. Collins v. Titer required by the terms of the will Donohue, 70 Hun, 317; Losey v. Han- to pay the income of a fund semi- ley, 147 N. Y. 560. annually to a beneficiary during his 31 Boyer v. Decker, 5 App. Div. 623; life is a testamentary trustee; upon 40 N. Y. Supp. 469. his death the appointment of a sue- 32 Royce v. Adams, 123 N. Y. 402 ; cessor is necessary, and the surrogate 33 St. Rep. 622. may make it under Code Civ. Proc, 33 See Matter of McWhaley, N. Y. § 2818. (Matter of Heoht, 71 Hun, Law J., April 8, 1892. 62; 24 N. Y. Supp. 540.) As to the 34 Conant v. Wright, 22 App. Div. appointment of the beneficiary as sue- 216; 48 N. Y. Supp. 422. § 455. Revocation of Authority, Etc. 364 in trust to sell real estate, remain in him, and are not vested in the new trustee appointed in his place.^^ § 455. ftualiflcation of successor — Where a decree removing a trustee, or discharging him on his resignation, does not name his successor, or the person designated therein does not qualify, the successor must be appointed and must qualify in the manner prescribed for the appointment and qualification of an adminis- trator with the will annexed. ^^ »5 Greenland v. Waddell, 116 N. Y. Tompkins v. Moseman, 5 Redf. 402; 234. Lane v. Lewis, 4 Dem. 468; Matter of 36 Co. Civ. Proc, § 2818, as amended Whitehead, 3 id. 227; 1 How. Pr. (N. 1884. He must give a hond. (Russak S.) 90.) V. Tobias, 12 Civ. Proc, Kep. 390; CHAPTER XV. OFFICIAL BONDS OF OFFICERS SUBJECT TO THE SURROGATE'S JURISDICTION; RIGHTS AND LIA- BILITIES OF SURETIES. TITLE FIEST. GENERAL PEOVISIOWS EELATING TO OEPICIAL BONDS. § 456. General requisites of official bonds We have already given the statute which requires a surrogate, after his election or appointment, to make and file a bond.-^ The Surrogate's Court, in the exercise of the jurisdiction conferred upon it by statute, may compel the filing of an ofiicial bond by any of several descrip- tions of ofiicers, including executors, administrators, guardians, and other trustees, and may exercise certain supervisory powers in respect to the security so to be given. The statutory regula- tions, with regard to the bonds of all or most of such officers, are given here; those not generally applicable are separately consid- ered.^ Every official bond, given as prescribed in the Code, must be acknowledged or proved, and certified, in like manner as a deed to be recorded.^ The clerk of the Surrogate's Court has the power to take acknowledgment or proof of the execution of any bond to be filed in the court of which he is clerk.* A bond re- 1 See ante, § 28. 2 It may be remarked here that the provisions of the present Code relat- ing to the bonds of executors, admin- istrators, etc., and the rights and lia- bilities of sureties, apply to repre- sentatives, guardians, etc., to whom letters were issued before or after the 1st of September, 1880, but the Code does not afEeet the liabilities of the sureties in the bond executed before this date. (Co. Civ. Pro., § 2610.) The change wrought by Co. Civ. Proc, § 2606, in reference to the method of establishing a devastavit, in wn action upon the bond of a deceased admin- istrator, merely affects the remedy, not the liability, and so is not within the exception contained in section 2610. Accordingly, section 2606 is applicable to a case where the bond was given before its enactment, and, therefore, a decree against an admin- istrator of the deceased administrator, rendered upon his accounting, had the same effect " as if an execution issued upon a surrogate's decree against the property of decedent had been returned unsatisfied during decedent's lifetime." (Potter v. Ogden, 136 N. Y. 384.) 3 Co. Civ. Proc, § 810; id., § 2500, as amended 1893. 4 Co. Civ. Proc., § 2509, subd. 5. [365] § 4:57. Official Bonds, Etc. 366 quired to be given by or in behalf of a person does not necessitate his joining with the sureties in the execution thereof, unless the statute requires him to execute the same. The execution thereof by one surety is sufficient, although the word " sureties " is used, unless the provision expressly requires two or more sureties, and a bond executed by any surety or fidelity company, authorized by law to transact business, is equivalent to an execution by two sureties.^ § 457. Number and qualifications of sureties. — A bond, executed by a surety or sureties, as prescribed in the Code, must, where two or more persons execute it, be joint and several in form; and, un- less otherwise expressly prescribed, it must be accompanied with the affidavit of each surety, subjoined thereto, to the effect that he is a resident of, and a householder or a freeholder within, the State, and is worth the penalty of the bond, over all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution.® Where the penalty of the bond is five thousand dollars or up- wards, the surrogate may in his discretion allow the sum, in which a surety is required to justify, to be made up by the justification of two or more sureties, each in a smaller sum, but, in that case, a surety cannot justify in a sum less than five thousand dollars ; and where two or more sureties are required by law to justify, the same person cannot so contribute to make up the sum for more than one of them.^ Each surety should justify in the required penalty, that is, the penalty must be twice made up, either (1) by two persons, each fully qualified, or (2) by one such person and two or more persons else, unitedly sufficient, or (3) by two distinct sets of persons, each set being unitedly worth the full penalty.® 5 Co. Civ. Proc, § 811, as amended that case a testamentary trustee, hav- 1895 (L. 1895, c. 510). ing been required to give security by a e Co. Civ. Proc, § 812. As to a bond in a penalty of $95,000, with two husband's being surety on his wife's sureties, one of whom justified in a bond and vice versa, see Matter of sum greater than the penalty, while Grove, 13 Civ. Proc. Rep. 267; Mat- the other fell far short of the statu- ter of MeMaster, 12 id. 177. tory standard, it was contended that 7 Co. Civ. Proc, § 813, as amended the deficiency in the justification of 1885. Before the amendment of 1885. one was supplied by the excess in that the penalty of the bond was required of the other. Held, that the bond was to be $20,000, to authorize it to be insufficient, and that the second surety made up by the justification of two or should be replaced by one capable of more sureties. See Matter of Thomp- justifying in $95,000, or by two or son, 6 Dem. 56; 19 St. Rep. 900; Mat- more, each worth at least $10,000, and ter of Hart, 2 Redf. 156. capable together of justifying in STrask V. Annett, 1 Dem. 171. In $95,000. In New York county a special 367 Official Bonds, Etc. §§ 458-460. § 458. Bond by a surety company.- — It is now provided that the execution of any bond required by the Code to be given may be executed by any fidelity or surety company authorized by the laws of this State to transact business. Its execution of such bond is equivalent to the execution of the bond by two sureties, pro- vided the same is approved by a judge of the court in which such bond is given; and such company, if excepted to, shall justify through its officers or attorney in the manner required by law. Any such company may execute such bond as surety, by the hand of its officers, or attorney, duly authorized thereto by resolu- tion of its board of directors, a certified copy of which resolution under the seal of said company shall be filed with each bond or undertaking.^ § 459. Bonns to sureties. — It was held, before 1892, that a fee paid by a representative to a surety company as a consideration for becoming his surety, was not a necessary or reasonable ex- pense, which would be allowed him on his accounting;^" but, now, he " may include, as part of his lawful expenses, such reasonable sum, not exceeding 1 per cent, per annum upon the amount of such bond paid his sureties thereon, as such court or judge allows." " § 460. Deposit of securities to reduce penalty of bond In ac- cordance witE a practice which prevailed to some extent before the Code, of reducing the penalty of.a bond by a deposit of securities, or the funds belonging to the estate, in a trust company, to the credit of the proceeding, to be withdrawn only upon the order of the court, the Code ^" now prescribes that where a bond, or new sureties to a bond, are *' required by a surrogate from an executor, administrator, guardian, or other trustee, if the value of the estate or fund is so great that the surrogate deems it inexpedient to re- quire security in the full amount prescribed by law, he may direct that any securities for the payment of money, belonging to the estate or fund, be deposited with him, to be delivered to the county treasurer, or be deposited, subject to the order of the trustee, countersigned by the surrogate, with a trust company duly author- ized by law to receive the same. After such a deposit has been rule (No. 17, March, 1888) is adopted lo Jenkins v. Shaffer, 6 Dem. 59. for the examination of sureties in an n Co. Civ. Proc, § 3320, as amended ofBcial bond coming within the cog- 1892. See Matter of Gill, 21 Misc. nizance of the surrogate. 281. 9 Co. Civ. Proc., § 811, as amended 12 Co. Civ. Proc, § 2595, as amended 1886. 1885. See Rule 15, N. Y. Sum Ct. §§ 461, 462. Official Bonds, Etc. 368 made, the surrogate may fix the amount of the bond, with respect to the value of the remainder only of the estate or fund. A security thus deposited shall not be withdrawn from the custody of the county treasurer or trust company, and no person, other than the county treasurer or the proper officer of the trust company, shall receive or collect any of the principal or interest secured thereby, without the special order of the surrogate, en- tered in the appropriate book. Such an order can be made in favor of the trustee appointed, only where an additional bond has been given by him, or upon proof that the estate or fund has been so reduced, by payments or otherwise, that the penalty of the bond originally given will be sufficient in amount to satisfy the pro- visions of law relating to the penalty thereof, if the security so withdrawn is also reckoned in the estate or fund." § 461. Approval and filing of bond. — The bond is, in every case, subject to the approval of the surrogate, to be indicated by his indorsement thereupon, to that effect, ^^ and must be ffled with the surrogate or the clerk of his court.^* Every bond filed in his office must be carefully preserved by him and delivered to his successor when his term expires.-'^ § 462. Petition, by person interested, for new bond or new sureties. — Any person, interested in the estate or fund, may present to the Surrogate's Court a written petition, duly verified, setting forth that a surety in any bond, taken as prescribed in the eighteenth chapter of the Code, " is insufficient, or has removed, or is about to remove, from the State, or that the bond is inadequate in amount, and praying that the principal in the bond may be re- quired to give a new bond, in a larger penalty, or new or additional sureties as the case requires; or, in default thereof, that he may be removed from his office, and that letters issued to him may be revoked. Where the bond so taken is that of a guardian, the peti- tion may also be presented by any relative of the infant. When the bond is that of an executor or administrator, the petition may also be presented by any creditor of the decedent. If it appears to the surrogate that there is reason to believe that the allegations of the petition are true, he must cite the principal in the bond to show cause why the prayer of the petition should not be granted."^® 13 Co. Civ. Proc, § 812. 15 Co. Civ. Proc, § 2500. 14 Co. Civ. Proc, § 816. But failure le Co. Civ. Proc., § 2597. Service of to file it is no defense to the sureties the citation out of the State, on a in an action thereon. (Haywood v. nonresident principal, is good. (Ste- Townsend, 4 App. Div. 246; 38 N. Y. vens v. Stevens, 3 Redf. 507.) A Supp. 517.) surety's dying is not removing from 369 Official Bonds, Etc. §§463,464. The only persons who can apply are, either those interested in the estate or fund, under this section, or one or more of the sureties, under section 2600; the principal cannot apply for an order re- leasing one of the sureties." § 463. Order granting or denying application. — Upon the return of such a citation, " the surrogate must hear the allegations and proofs of the parties; and if the objections, or any of them, are found to be valid, he must make an order, requiring the principal in the bond to give new or additional sureties, or a new bond in a larger penalty, as the case requires, within such a reasonable time, not exceeding five days, as the surrogate fixes ; and directing that, in default thereof, his letters be revoked." ^* " If a bond with new or additional sureties, or in a larger pen- alty, is approved and filed in the surrogate's office, as required by such an order, the surrogate must make a decree dismissing the proceedings upon such terms, as to costs, as justice requires ; other- wise, he must make a decree, removing the delinquent from office, and revoking the letters issued to him." ^^ § 464. Petition by sureties to be released Any or all of the sureties in any bond, taken as prescribed in the eighteenth chapter of the Code, " may present a petition to the Surrogate's Court, praying to be released from responsibility, on account of any future breach of the condition of the bond; and that the principal in the bond be required to give new sureties and to render and settle his account, and that a citation issue to said principal to attend on such application. The surrogate must thereupon issue a citation accordingly." ^° the State, within the meaning of this able to, the Supreme Court, * * • section. The statute makes no pro- or to a County Court," was authorized vision for the renewal of the bond on to apply to those courts, to be relieved, the death of a surety. ( Stevens v. etc., and the course and method of the Stevens, 2 Dem. 469.) proceeding were prescribed. By L. 17 Matter of Haug, N. Y. Law J., 1892, c. 568, the substance of this stat- Feb. 26, 1892. ute was tacked on to Co. Civ. Proc, 18 Co. Civ. Proc, § 2598. § 8i2, as an amendment thereof; but 18 Co. Civ. Proc, § 2599. A bond, the remedy is given to " the surety or reciting the former bond and executed sureties, or the representatives of any by the single new surety, is in proper surety or sureties upon the bond of form. (Matter of Patullo, 1 Tuck, any trustee, committee, guardian, as- 140.) signee, receiver, or executor," to peti- 20 Co. Civ. Proc, § 2600, as amended tion " the court that appointed him, 1901 (L. 1901, c. 524). As to appli- or that approved or accepted such cability of this section to a bond given iond," etc. We do not think this see- in 1878, see Shook v. Goddard, 2 Dem. tion of the Code applies to the case of 201. By L. 1881, c. 654, "the surety bonds taken and approved by a Sur- er sureties of any trustee, committee, rogate's Court; a special remedy for or guardian appointed by, or account- the relief of sureties on such bonds 24 § 465. Official Bonds, Etc. 370 It will be noted that this provision is only applicable to such bonds as are " prescribed " by the eighteenth chapter; consequently a surety in a bond not so prescribed — e. g., a bond given by a life tenant to secure the preservation of the fund and its distribu- tion among the remaindermen, required by the court under its incidental power to protect those ultimately entitled to the fund — cannot avail himself of this means to secure a release. ^^ The fact that the surety and his relatives are indebted to the estate, and that his object in making the application is to procure the administration to be transferred to a person who will refrain from enforcing payment of such debts by him and them, are not grounds for refusing the application.^^ It is improper to combine a petition of a surety to be released, with a petition of the next of kin for a new bond or removal. The practice in the two cases is different.^^ § 465. Releasing sureties on filing new bond Upon the return of such a citation, " if the principal in the bond does not file a new bond in the usual form, with new sureties to the satisfaction of the surrogate, the surrogate must make an order requiring said prin- cipal to file such new bond within such reasonable time not exceed- ing five days as the surrogate fixes. Should the principal file such new bond upon the return of such citation or within the time fijced by such order, the surrogate must thereupon make a decree, releas- ing the petitioner from liability upon the bond for any subsequent act or default of the principal, and requiring the principal to ren- der and settle his account to and including the date of such decree and to file such account within a time fixed, not exceeding twenty days from such date; otherwise he must make a decree, revoking the delinquent's letters." ^ being furnished by section 2600, above. Rep. 579. The right of a surety upon Special provision is likewise made for the bond of an administrator in pro- the enforcement of their liability, no ceedings to sell real estate for the pay- other than which can be pursued, ment of debts, was questioned in Mat- Hence section 814 has no application ter of McCormick, 25 Misc. 136. to an executor's bond. (Haight v. 22 Lewis v. Watson, 3 Eedf. 43. Nor Brisbin, 100 N. Y. 219.) can a guardian of an infant interested 21 Matter of Hein, N. Y. Law J., in the estate, object to the release of May 27, 1892. /* seems, that the re- sureties on the administrator's bond, maindermen have the right to apply on the ground of an error overcharg- to a court of equity to compel the life ing him on the accounting, where he tenant to give security for the safety has received more than the amount of of the proceeds of the sale of realty such overcharge in excess of what was in the hands of such life tenant, and due to his ward. (Altman v. Wile, for its forthcoming at the proper 141 N. Y. 574; 60 St. Rep. 324.) time. (Matter of Blauvelt, 131 N. Y. 23Bick v. Murphy, 2 Dem. 251. 249 ; 43 St. Rep. 285. ) Compare Mat- 24 Co. Civ. Proc, § 2601, as amended ter of Shipman, 53 Hun, 511; Matter 1901 (L. 1901, e. 524). of McDougall, 141 N. Y. 21; 56 St. 371 Official, Bonbs, Etc. §466. § 466. Extent of liability on bond. — " A person to whom letters are issued is liable for money or other personal property of the estate, which -was in his hands, or under his control, when his let- ters were issued; in whatever capacity it was received by him, or came under his control. Where it was received by him, or came under his control, by virtue of letters previously issued to him, in the same or another capacity, an action to recover the money, or damages for failure to deliver the property, may be maintained upon both official bonds; but, as between the sureties upon the official bond given upon the prior letters, and those upon the official bond given upon the subsequent letters, the latter are liable over the former." ^® The sureties remain liable until they can show payment by their principal to the parties legally entitled to receive the assets. Hence when the sole defense to an action upon an administrator's bond is a technical and constructive transfer of liability from him- self, as such, to himself, as guardian, this must be clearly estab- lished, so as to leave no doubt of the liability of the sureties upon his bond as guardian.^® 25 Co. Civ. Proc, § 2596. See id., § 2593; ante, § 324. This is an adop- tion of the rule established by Gotts- berger v. Taylor (19 N. Y. 150), that the sureties of a special administrator were liable for money belonging to the estate, received by him before his ap- pointment, and as the agent of a previous administrator to whom he succeeded. See also, Williams v. Kiernan, 25 Hun, 355; Haines v. Meyer, id. 414; Trust & Deposit Co. V. Pratt, id. 23 ; Hood v. Hood, 85 N. Y. 561, cases under the Revised Stat- utes. In Scofield v. Churchill (72 N. Y. 565), the bond was conditioned, among other things, that the executor should " obey all orders of the surro- gate touching the administration of the estate committed to him." Held, that the sureties could not limit their liability to deficiencies or defalcations of the executors occurring after the giving of the bond. The surety, how- ever, was held, where the condition of the bond was that the representa- tive shall account for all moneys " that shall come into his hands." (Thomson v. American Surety Co., 170 N. Y. 109.) Where the adminis- trator personally owed his intestate, but was not able to pay, such debts are not, as to his bondsmen, assets of the estate for which they would be liable, nor are such sureties bound by recitals in a decree, on such admin- istrator's accounting, that he should have accounted for such debts and was able to pay them. (Keegan v. Smith, 33 Misc. 74; 67 N. Y. Supp. 281; affd., 60 App. Div. 168.) Where the evi- dence did not show that interest had been received by a trustee, and the substituted trustee was authorized, by the order appointing him, to receive the principal only of the fund, — Held, that he could not recover interest from the surety on the trustee's bond from the date of the former trustee's appointment. (People ex rel. Collins v. Donohue, 70 Hun, 317; 24 N. Y. Supp. 437.) 2S Potter v. Ogden, 136 N. Y. 384. Upon due proof being made that, upon the settlement of the accounts of defendant's principal, an amount of money remained in his hands which he had failed to pay over, the burden is upon the defendant to show that this has been paid over. The pre- sumption is that it has not been paid, and, to escape liability, the presump- tion must be rebutted by proof that it has been. (Dayton v. Johnson, 69 N. § 467. Official Bonds, Etc. 372 The sureties on the bond of co-principals will become liable for the joint acts of the principals, as well as for the individual defaults of each; the bond being considered as if each principal had exe- cuted a separate bond, with the same sureties.^^ § 467. Eemedies available on the bond. — Three successive sec- tions of the Code (§§ 2607, 2608, 2609) provide for three classes of actions upon the official bonds of representatives, guardians, and testamentary trustees. The remedies given are distinct, and are governed, in some respects, by different rules. The first is an action provided for by section 2607, which may be maintained upon the bond, by and in the name of any person in whose favor the decree was made,^* provided an execution issued upon a surrogate's decree has been returned, wholly or partly unsatisfied. The second is an action provided for by section 2608, which may be maintained by the successor of an executor, administrator, or guardian, whose letters have been revoked; in which action "he may recover any money, or the full value of any other property, received by the principal in the bond, and not duly administered by him; and to the full extent of any injury sustained by the estate of the decedent or of the infant, as the case may be, by any act or omission of the principal." ^ It is not made a condition of such right of action that an execu- tion, issued against the principal, on a surrogate's decree, should be first returned, wholly or in part unsatisfied.^" The third remedy is an action under section 2609 " by any per- son aggrieved," where the principal's letters have been revoked, but no successor has been appointed. Such an action can only be maintained " upon obtaining an order from the surrogate grant- ing him leave to do so." It is, likewise, not a condition of main- Y. 419.) Compare Matter of Noll, an action is regarded as part of the 10 App. Div. 356 ; 41 N. Y. Supp. 765 ; estate in the hands of the plaintiff, affd. 154 N. Y. 765. and must be distributed or otherwise ZTNanz v. Oakley, 120 N. Y. 84; 30 disposed of accordingly; except that, St. Rep. 885. An administrator may, a recovery for an act or omission re- therefore, bring action against sure- specting a right of action, or other ties on the joint bond of himself and property, appropriated by law for the a defaulting coadministrator, in his benefit of the husband, wife, family, representative capacity. (Sperb v. or next of kin of a decedent, or dls- McCoun, 110 N. Y. 605.) posed of by a will for the benefit of 28 See Prentiss v. Weatherly, 68 any person, is for the benefit of the Hun, 114; 22 N. Y. Supp. 680; affd., person or persons so entitled thereto." 144 N.-Y. 707. See Allen v. Kelly, (Co. Civ. Proc, § 2608.) 171 id. 1. 30 Co. Civ. Proc, § 2606; Hood v. 29 Flanagan v. Fidelity, etc., Co., 32 Hayward, 124 N. Y. 1 ; 26 Abb. N. C. Misc. 424; Dunne v. American Surety 271; Van Zandt v. Grant, 67 App. Co., 43 App. Div. 91; 59 N. Y. Supp. Div. 70; 73" N. Y. Supp. 600. 429. " The money recovered in such 373 Official Bonds, Etc. §468. taining such an action, that an execution should have been issued on a surrogate's decree and been returned unsatisfied. As in the action by the successor of a removed representative or guardian, the plaintiff in this action " may recover any money, or the full value of any other property, received by the principal in the bond, and not duly administered by him, and to the full extent of any injury sustained by the estate of the decedent, by any act or omis- sion of the principal;" and the money recovered "must be paid by the sheriff or other officer who collects it, into the Surrogate's Court; and the surrogate must distribute it to the creditors or other persons entitled thereto." ^^ § 468. Condition of surety's liability. — But -whichever of these remedies is sought to be availed of, the rule is settled, with few exceptions, that the default of the principal must be established in a proper proceeding against him, in the Surrogate's Court, be- fore the sureties on his bond can be prosecuted, and that, as the statutes have prescribed the steps necessary to be taken, the right of action against the sureties only arises upon compliance with those requirements. ISTo action at law can be maintained on the bond, save in case of the principal's disobedience of some order of the surrogate; nor can the requirement of the statute be disre- garded, even in an equitable action, where the statutory remedies can be pursued.*^ But the order disobeyed must have been one touching the ad- ministration of the estate, under which the principal was obligated to pay a certain sum of money or the like to a party. A mere order imposing a fine, as for a contempt, upon an administrator for not appearing when cited, in a nroceeding to compel his accounting, is not such an order.^'' 31 Co. Civ. Proc, § 2609. The pro- pie v. Corlies, 1 Sandf. 228 ; Annett ceedings for such a distribution are v. Kerr, 28 How. Pr. 324. Compare the same as prescribed for the distri- Scharmann v. Schoell, 23 App. Div. bution of the proceeds of a sale of 398; 48 N. Y. Supp. 306; also s. c, real property of a decedent, for the 38 App. Div. 528; 56 N". Y. Supp. 498; payment of hia debts or funeral ex- Otto v. Van Riper, 164 N. Y. 536 penses. (lb.) This section has no (where previous accounting was im- application to an action brought by a possible) ; Bischoflf v. Engel, 10 App. guardian on the administrator's bond. Div. 240; 41 N, Y. Supp. 815; Yates (Prentiss v. Weatherly, 68 Hun, 114; v. Thomas, 35 Misc. 552; 71 N. Y. affd., 144 N. Y. 707.) Supp. 1113. The right of action does 32 Hood V. Hood, 85 N. Y. 561 ; not accrue until failure to pay in the Haight V. Brisbin, 100 id. 219; manner and at the time directed by Perkins v. Stimmel, 114 id. 359. the decree. (Betts v. Avery, 46 App. See Stilwell v. Mills, 19 Johns. 304; Div. 342; 61 N. Y. Supp. 525.) People v. Barnes, 12 Wend. 492 ; Sails- 33 Loop v. Northup, 59 Hun, 75 ; bury v. Van Hoesen, 3 Hill, 77; Pec- 35 St. Rep. 522. So an executor's § 469. Official Bonds^ Etc. 374 It is, however, a general rule that all final decrees of a surro- gate adjudging moneys of the estate in the hands of a representa- tive or guardian, due and payable to parties entitled, run against him personally and de honis propriis. All that is necessary in order to hold the sureties upon his bond, is that the proceedings show that the judgment was rendered for an official default.^* It is only in regard to the third class of actions, above referred to, that the srurrogate's leave is made a condition of the right to sue on the bond.^^ The provision of the former statute providing for an assignment of the bond by an order of the surrogate for the purpose of being prosecuted, is omitted from the present statute.^^ § 469. Defenses of sureties — The statute declares that an action against the sureties is not barred, suspended, or otherwise affected by the levy, upon the principal's property, of an execution, or by his imprisonment in contempt proceedings under a surrogate's decree rendered against him by reason of the default.^^ The ignorance of the sureties, when they executed the bond, of the real nature of the administration, is not available as a defense in an action upon the bond; nor is the fact that they were misled or deceived by those at whose request they executed it, as against one who was in no way connected with the deception; nor will an unauthorized insertion, in the recital of the bond, by the clerk, after its execution, of words descriptive of the office of the prin- cipal obligor, change the legal force and character of the bond, so as to relieve the obligors from liability under it, as originally executed.^^ sureties are not liable for his failure, 66 Barb. 336; Thayer v. Clark, 48 through inability, to pay over the Barb. 243; affd., 4 Abb. Ct. App. Dec. amount of his debt due to the testator, 391; Field v. Van Cott, 15 Abb. Pr. as so much money in hia hands. (N. S.) 349; Matter of Van Eps, 56 (Baucus V. Barr, 45 Hun, 582.) N. Y. 599; People v. Struller, 16 Hun, 34 Power V. Speckman, 126 N. '£. 234; Bramley v. Forman, 15 id. 144; 354; 37 St. Eep. 474. Liability of People v. Falconer, 2 Sandf. 81; Peo- sureties for costs in a decree (Phillips pie v. Downing, 4 id. 189; People v. V. Liebmann, 10 App. Div. 128 ; 41 Barnes, 12 Wend. 492. N. Y. Supp. 1020; Matter of Gall, 42 37 Co. Civ. Proc, § 2555, last clause. App. Div. 255; 59 N. Y. Supp. 254) ; 38 Casoni v. Jerome, 58 N. Y. 315. for allowance to special guardian In Brewster v. Balch (41 N. Y. Supr. (Beckett v. Place, 12 Misc. 323; 33 63), upon the appointment of C. as N. Y. Supp. 634 ) . administratrix, and D. as administra- 35 Scofleld V. Adriance, 1 Dem. 196 ; tor, of the estate of an intestate, they 3 Civ. Proc. Eep. 323; Hood v. Hay- having executed a bond, with two ward, supra. ' sureties, conditioned that " the above 36 For some cases under the former bounden C. and D. shall faithfully statute, see Gerould v. Wilson, 16 Hun, execute the trust reposed in her, as 530; affd., 81 N. Y. 573; Baggott v. administratrix and administrator of Boulger, 2 Duer, 160 ; Cridler v. Curry, all and singular the goods," etc., of 375 Official Bonds, Etc. § 469. In the absence of fraud or collusion between the plaintiff and the principal, the decree of the surrogate is conclusive in the action upon the sureties in the bond. By their contract they have made themselves privy to the proceedings against their principal, and when he is concluded, they, in the absence of fraud or collu- sion, are concluded also,^^ even though they may not have been made parties thereto.*'' The sureties are estopped even from denying the jurisdiction of the surrogate to render the decree, for the disobedience of which the action on the bond is brought." The appointment, letters, and oath of the principal may, of course, be proved by the record; but, irrespectively of this, they may be proved by a recital in the bond, of an intent to apply for letters, with evidence that the principal acted as if he had been appointed and had qualified.*^ If judgment is recovered in the action, upon payment of the judgment by one of the sureties, he becomes subrogated to the decree, and has the right to have the same assigned to himself, or to some other person designated by him ; and, upon such assign- ment, may enforce the decree against the principal;*^ and may also compel a contribution by his co-surety.** the decedent, " and obey all orders of tate, and reserve recourse against the the surrogate, touching the adminis- estate thereon, or allow the sureties tration of the estate committed to on the administrator's bond to set it her," the sureties were held liable for up against their liability. (Matter a breach of the condition of the bond of Lawson, 42 App. Div. 377 ; 59 N. Y. by D. Supp. 152.) 39 Scofield V. Churchill, 72 N. Y. 40 McMahon v. Smith, 24 App. Div. 565; Casoni v. Jerome, 58 id. 315, 25; 49 N. Y. Supp. 93; Eberle v. 322; Thayer v. Clark, 4 Abb. Ct. App. Schilling, 32 Misc. 195; 65 N. Y. Supp. Dec. 391; Harrison v. Clark, 87 N. Y. 728. 572; Beams v. Gould, 8 Daly, 384; 41 Field v. Van Cott, 15 Abb. Pr. 77 N. Y. 455; Johnston v. Smith, 25 (N. S.) 349. But compare Browning Hun, 171; Martin v. Hann, 32 App. v. Vanderhoven, 4 Abb. N. C. 166; Div. 602; 53 N. Y. Supp. 186; McMa- Mahoney v. Gunter, 10 Abb. Pr. 431; hon V. Smith, 24 App. Div. 25; 49 Behrle v. Sherman, 10 Bosw. 292; N. Y. Supp. 93; Eberle v. Schilling, Brewster v. Balch, 41 N. Y. Supr. 63. 32 Misc. 195; aflfg. Same v. Bryant, 42 Dayton v. Johnson, 69 N. Y. 419. 31 id. 814; Keegen v. Smith, 60 App. Compare People v. Haseall, 22 id. 188; Div. 168; 70 N. Y. Supp. 260. See Rowe v. Parsons, 6 Hun, 338; Gerould Douglass V. Howland, 24 Wend. 35 ; v. Wilson, 16 id. 530. Jackson v. Griswold, 4 Hill, 522; An- 43 Townsend v. Whitney, 75 N. Y. nett V. Terry, 35 N. Y. 256 ; Douglass 425. v. Ferris, 138 id. 192. The decree 44 And where the co-surety is de- on a judicial settlement of the account ceased, his representatives may be of a deceased administrator, in favor compelled to contribute. See Cornes of the administrator de bonis non, v. Wilkin, 14 Hun, 428 ; affd., 79 N. Y, should take cognizance of a note made 129 ; Boyle v, St. John, 28 Hun, 454, in favor of the former, by the intes- § 470. Official Eonds, Etc. 376 TITLF SECOND. PAETICULAE CLASSES OF BONDS. §470. Bond of administrator. — A person appointed an adminis- trator must, before letters are issued to him, " execute to the people of the State, and file with the surrogate, the joint and several bond of himself and two or more sureties, in a penalty, fixed by the surrogate,*^ not less than twice the value of the personal property of which the decedent died possessed, and of the probable amount to be recovered by reason of any right of action, granted to an executor or administrator, by special provision of law. The sum, to be fixed as the amount of the penalty, must be ascertained by the surrogate, by the examination, upon oath, of the applicant for the decree granting letters, or any other person, or otherwise, as the surrogate thinks proper.*® The bond must be conditioned that the administrator will faithfully discharge the trust reposed in him as such, and obey all lawful decrees and orders of the Surro- gate's Court, touching the administration of the estate committed to him." *^ The provision prescribing the minimum penalty, twice the value of the decedent's personal property, embraces property personally possessed, as well as choses in action, and all other property to the actual possession of which the decedent was entitled as the legal owner thereof; but cannot be intended to cover any property of which he, in his lifetime, had divested himself of the legal title, whether the transfer was procured by fraud or otherwise.*^ 45 In Matter of Fattosini ( 33 Misc. two of four obligors therein. It is 18; 67 N. Y. Supp. 1119), the surro- no longer necessary to bring the action gate of Westchester county dispensed against either one or all. (Cridler v. with a bond upon granting letters of Curry, 66 Barb. 336.) The sureties administration to the consul-general, upon an administrator's bond only in- upon the property of an alien intes- sure his faithful management of the tate; but the precedent was not fol- personal effects of the intestate, and lowed in Matter of Logiorato, 34 Misc. their liability cannot be extended to 31 (N. Y. Surr.). In Matter of Lo- his acts in reference to a fund which brasciano (38 Misc. 415), the former in law is to be deemed real property, surrogate adhered to his previous rul- (Matter of Woodworth, 5 Dem. 156.) ing, in a, well-considered opinion. The penalty of the bond may be in- 46 The amount of an administrator's creased by the surrogate so as to in- bond is to be fixed not with regard to elude property not embraced in the the debts of the estate but the value inventory, but which is claimed to of the personalty. (Matter of Govan, belong to the estate. (Matter of Goun- 2 Misc. 291; 23 N. Y. Supp. 766.) dry, 57 App. Div. 232; 68 N. Y. Supp. 47 Co. Civ. Proc., § 2664, as amended 155.) See also Berkeley v. Kennedy, 1893, being former § 2667. The ad- 62 App. Div. 609; 70 N. Y. Supp. 762. ministrator's bond being joint and sev- 48 Peek v. Peck, 3 Dem. 548. eral, an action thereon will lie against 377 Official Bonds, Etc. §§471-473. § 471. Modified security on limited letters " Where a right of action is granted to an executor or administrator by special pro- vision of law,*^ if it appears to be impracticable to give a bond sufficient to cover the probable amount to be recovered, the sur- rogate may, in his discretion, accept modified security and issue letters limited to the prosecution of such action, but restraining the executor or administrator from a compromise of the action and the enforcement of any judgment recovered thereiif, until the further order of the surrogate on additional further satisfac- tory security." '^ § 472. Modified security on consent of next of kin. — " In cases where all the next of kin to the intestate consent, the penalty of the bond need not exceed double the amount of the claims of creditors against the estate presented to the surrogate, pursuant to a notice to be published twice a week for four weeks in the official State paper, and in two newspapers published in the city of !N"ew York, and once a week for four weeks in two newspapers published in the county where the intestate usually resided, and in the county where he died, reciting an intention to apply for letters under this provision, and notifying creditors to present their claims to the surrogate on or before a day to be fixed in such notice, which shall be at least thirty days after the first publica- tion thereof; but no bond so given shall be for a less sum than five thousand dollars; and such bond may be increased by order of the surrogate for cause shown. Pending such application, no temporary administrator shall be appointed, except on petition of such next of kin." *^ § 473. Bond of executor. — Unlike an administrator, an executor is not, in general, required to give bonds, unless the will so direct?,^^ — ^the maxim being that whom the testator trusted the court may trust also. But there are certain exceptions to the rule. Thus, a person named as executor in a will can entitle himself to letters testamentary only by giving a bond where either *8 See Matter of Mallon, 13 Civ. mise," cannot issue a valid execution, Proc. Rep. 205; Kirwin v. Malone, 45 though her power be afterward ex- App. Div. 93; 61 N. Y. Supp. 844. tended. (Lambert v. Metropolitan 50 Co. Civ. Proc, § 2664, as amended St. Ry. Co., 33 Misc. 579 ; 68 N. Y. 1893. See Matter of Malloy, 1 Dem. Supp. 877.) 421, and ante, § 360. The provision 51 Co. Civ. Proc, § 2664, as amended as to further satisfactory security is 1893 (former § 2667). See Curtis v. directory only. (Murzynowski v. Del., Williams, 3 Dem. 63; § 332, note 35, L. & W. R., 39 St. Rep. 299.) An ante. administratrix having power to " pros- 52 gee Sullivan's Estate, 1 Tuck. 94. ecute," but not " to collect or eompro- § 474. Official Bonds, Etc. 378 of the following objections kave been established against him to the satisfaction of the surrogate: (1) That his circumstances are such that they do not afford adequate security to the creditors or persons interested in the estate, for the due administration of the estate; or (2) That he is not a resident of the State, although he is a citizen of the United States.^^ " But a person against whom there is no objection, except that of nonresidence, is entitled to letters testamentary without giving a bond, if he has an oiB.ce within the State, for the regular transaction of business in person; and the will contains an express provision to the effect that he may act without giving security." ^ And where, after letters testamentary have issued, it appears, upon the application for revocation of the letters, made by a creditor or person interested, that the circumstances of an executor, who has not given a bond, are such as not to afford adequate security for the due adminis- tration of the estate, he can prevent a revocation only by giving a bond.®^ Where a bond is required from an executor, pursuant to the statute, he must, before letters are issued to him, qualify as prescribed by law, with respect to an administrator upon the estate of an intestate; except that, in fixing the penalty thereof, the surrogate must take into consideration the value of the real property or of the proceeds thereof, which may come to his hands by virtue of any provision contained in the will.^® The surrogate has no authority to exact from an executor a bond or impose on him any condition, neither directed by law nor by the will. Thus, where the Surrogate's Court directed an executor to pay to him- self, as life tenant, the residuary estate, on his giving security to protect the interests of the remaindermen, and, also, that in case of his refusal to do so, he should give a bond as executor for re- taining it, or in default thereof, he should deposit the wTiole fund with the city chamberlain, it was held error, as the court had no right to impose any such condition.^^ § 474. Bond of administrator with will annexed An adipinis- trator with the will annexed, inasmuch as no confidence has been reposed in him by the testator, stands, as regards security, in the position of an administrator in intestacy; and, accordingly, it is required that he should, in all cases, before letters are issued to 53 Co. Civ. Proe., § 2638. See § 302, 57 Matter of Shipman, 53 Hun, 511. ante. See § 464, note 21, ante. As to how 54 Co. Civ. Proe., § 2638, last clause, far the bond of a nonresident executor 55 See Co. Civ. Proe, § 2685, subd. is affected by a subsequent statute ex- 5; id., § 2687, subd. 3. tending surrogate's powers, see Hood 56 Co. Civ. Proe, § 2645. v. Hayward, 48 Hun, 330; 124 N. Y. 1. 379 Official Bonds, Etc. §§ 476-477. him, give a bond such as is required from an executor who is com- pelled to give security pursuant to the statute.®® § 475. Bond of temporary administrator A temporary adminis- trator, appointed upon the estate either of a decedent or of an absentee, is required, before letters are issued to him, to qualify in the same manner as an administrator in chief in a case of intestacy.®^ § 476. Bond of administrator de bonis non. — An administrator de bonis non, — i. e., a person appointed to complete th.e adminis- tration of the estate of an intestate, where all the administrators, to whom letters have been issued, die or become incapable, or the letters are revoked as to all of them, — is required to qualify in the same manner as if he were an original administrator in chief, and give the same security, except that the surrogate may, in his discretion, in case where the estate has been partially administered upon by the former administrator, fix as the penalty of the bond a sum not less than twice the value of the assets remaining unad- ministered.^" § 477. Bond of ancillary executor or administrator. — A person to whom ancillary letters testamentary, or of administration, are issued from a Surrogate's Court of this State, is required, before the letters are issued, to qualify in the same manner as a domestic, administrator upon the estate of an intestate ; " except that the penalty of the bond may, in the discretion of the surrogate, be in such a sum, 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, effectually secure the payment of those debts; or the sums which the resident creditors will be entitled to re- ceive, 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." ®' Where an ancillary administrator has qualified by giving a bond in an amount exceeding the assets here, he will not be required to give additional security, in a penalty of double the amount of the debts due resi- dent creditors. '^^ 68 Co. Civ. Proc, § 2645. See § 332, 61 Co. Civ. Proc, § 2699. See 6 316, ante, ante. 59 Co. Civ. Proc, § 2670, supersed- 82 Matter of Govan, 2 Misc. 291 ; 23 ing § 2671. N. Y. Supp, 766. *» Co. Civ. Proc, § 2693, as amended 1889. §§478-481. Official Bonds, Etc. 380 § 478. Bond of general guardian of infant's property. — Before letters of guardianship of an infant's property are issued, the per- son appointed must " execute to the infant, and file with the sur- rogate, his bond, with at least two sureties, in a penalty, fixed by the surrogate, not less than twice the value of the personal prop- erty and of the rents and profits of the real property; conditioned that the guardian will, in all things, faithfully discharge the trust reposed in him, and obey all lawful directions of the surrogate touching the trust; and that he will, in all respects, render a just and true account of all money and other property received by him, and of the application thereof, and of his guardianship, whenever he is required so to do by a court of competent jurisdiction; but the surrogate may, in his discretion, limit the amount of the bond to not less than twice the value of the personal property and of the rents and profits of the real property for the term of three years." ®^ § 479. Amount of security on limited letters. — In a case where it appears " to be impracticable to give a bond to cover the whole amount of the infant's personal property, the surrogate may, in his discretion, accept security, to be approved by him, not less than twice the amount of the particular portion of the infant's property which the guardian will be authorized under the letters to receive." In that case, the surrogate may issue letters thereon, hut " limited to the receiving and administering only such personal property for which double the security has been given, and re- straining the guardian from receiving any other personal prop- erty of the infant until the further order of the surrogate, on addi- tional further satisfactory security." ®* § 480. Continuation of sureties' liability. — Where the general guardian of an infant is discharged upon his own resignation, the sureties in his ofiicial bond continue to be liable, with respect to all matters connected with his trust, until his account is judicially settled at the instance of his successor or of the ward.®^ §481. Bond of guardian of infant's person. — Before letters of guardianship of an infant's person are issued, " the surrogate may 63 Co. Civ. Proc, § 2830, first clause, sureties on a guardian's bond, for the See Rieck v. Fish, 1 Dem. 75. A gen- proceeds of realty sold in proceedings eral guardian who has given the bond brought for that purpose, and paid to required by Co. Civ. Proc, § 2830, the guardian, see Allen v. Kelly, 171 must, before receiving a legacy or dis- N. Y. 1; 63 N. E. 528. tributive share of the estate coming e* Co. Civ. Proc, § 2830, as amended to the minor, also execute a bond un- 1892. der section 2746. (Matter of Miller, 65 Co. Civ. Proc, § 2837. See §466 29 Misc. 272.) As to liability of the ante. 381 Official Bonds, Etc. §§ 482, 483. require the person' appointed to execute to the infant a bond, in a penalty fixed by the surrogate, and with or without sureties, as to the surrogate seems proper- conditioned that the guardian will in all things faithfully discharge the trust reposed in him, and duly account for all money or other property which may come into his hands, as directed by the Surrogate's Court." *^ § 482. Bond of guardian by will or deed Where a guardian of an infant's person or property has been duly appointed by the will or deed of the father or mother of the infant, the Surrogate's Court in which the will was admitted to probate, or of the county in which the deed was recorded, is authorized, upon the petition of the infant or any relative or other person in his behalf, to make a decree requiring the guardian to give security for the performance of his trust, in any case where a person named as executor in a will can entitle himself to letters testamentary only by giving a bond.®^ The security to be given by such a guardian, when required, must be a bond to the same effect and in the same form as the bond of a general guardian appointed by the Surro- gate's Court. Each provision of the eighteenth chapter of the Code, applicable to the bond of a general guardian so appointed, and to the rights, duties, and liabilities of the parties thereto, or any of them, including the release of the sureties and the giving of a new bond, applies to the bond given by a guardian appointed by will or deed, and the parties thereto.''* If the guardian fails to give a bond as required by the decree of the surrogate, it is a ground for his removal.®* § 483. Special guardians, or guardians ad litem. — The Code con- tains a provision in respect to the guardian ad litem appointed for an infant party to an action, to the effect that such a guardian shall not be permitted to receive money or property of the in- fant, other than costs and expenses allowed to the guardian by the court, until he has given sufficient security approved by a judge of the court or a county judge; and prescribing the form of the security, to wit, a bond, with at least two sureties ; and permitting proceedings to be taken for a renewal of the bond.^" But there appear to be no corresponding provisions relating to special guardians of infants, appointed by a surrogate in proceedings in his court, although he has authority to appoint such officers.^^ 66 Co. Civ. Proc, § 2831. 69 Co. Civ. Proc, § 2858. CTCo. Civ. Proc, § 2853. 70 Co. Civ. Proc, §§ 474, 475 «8Co. Civ. Proc, § 2854. 71 See Co. Civ. Proc, §§ 2527, 2530. §§ 484, 485. Official Bonds, Etc. 382 § 484. Bond of testamentary trustee. — Upon the petition of any person beneficially interested in tlie execution of a trust created by will, the surrogate is authorized to make a decree requiring a testamentary trustee to give security for the performance of his trust, in any case where a person named as executor in a will can entitle himself to letters testamentary only by giving a bond.'^ The security to be given by a testamentary trustee, when required, must be a bond to the same effect and in the same form as an executor's bond. Each provision of the eighteenth chapter of the Code, applicable to the bond of an executor, or to the rights, duties, and liabilities of the parties thereto, or any of them, including the release of the sureties, and the giving of a new bond, applies to the bond so given and to the parties thereto.^^ If the testamentary trustee fails to give a bond as required by the decree of the surro- gate, it is ground for his removal.^* Notwithstanding that by the Code (§ 2514) "testamentary trustee" is declared to include a person designated by a will, or by any competent authority, to exe- cute a trust created by will, the provision of section 2815, allowing a surrogate to require security from a testamentary trustee, in the cases therein specified, applies only to one named in a will.''^ The surrogate can compel a testamentary trustee to give a bond only in a case where an executor may be required to give security ; a breach of the trustee's trust is not sufficient ground.'^* § 485. Bond on selling real property to pay debts The statutory provisions in regard to the giving of a bond by the person, whether executor, administrator, or other person, who is directed by the surrogate's decree to sell, mortgage, or lease a decedent's real es- tate, will be found in the chapter which treats of the special pro- ceeding in which such a decree is obtained." 72 Co. Civ. Proc, § 2815. 75 Matter of Whitehead, 3 Dem. 227. 73 Co. Civ. Proc, § 2816. 76 Matter of Lawrence, 6 Dem. 342. 74 Co. Civ. Proc, § 2817. 77 See cXVIII, post. CHAPTER XVI. INVENTORY AND APPRAISAL OF ASSETS. TITLE FIEST. DUTY TO MAKE AND FILE INVENTORY. §486. "Property" and "assets" defined — Strictly speaking, the word " assets," "wliich is coramonly used in connection with, the duty of a representative to make and file an inventory of his de- cedent's estate, has a more restricted meaning than " personal property," the former signifying personal property applicable to the payment of the debts of the decedent,'^ and thus not including the property which is exempt from seizure by creditors, and which is to be set apart for the use of the widow and minor children. But, as we shall have occasion to point out hereafter, all the per- sonal property of the decedent, whether exempt from seizure or otherwise, passes to the executor or administrator, who is entitled to its possession and custody, in order to inventory the articles and set aside those which are exempt. It is said to be the duty of such a representative to make an inventory of the personal estate, be- cause, first, it is his interest that he should know, at the outset of his administration, with what property (and so far as possible its value) he is likely to be charged on the debtor side, when he is called upon to make up his account. If he sees fit to postpone the ascertaining of the sum for which he is chargeable, as the value of the personal property coming into his hands, until he is called upon to account, he is at liberty to do so, unless (and this is the second ground of duty), he is called upon by the court, at the in- stance of some party interested, to make and file an inventory; in other words, the making and filing of an inventory is either voluntary or compulsory. It is said, however, to be a strong circumstance to show improper conduct, that the representative failed voluntarily to make and return an inventory.^ 1 See Co. Civ. Proc, § 2514, subd. 2. 62; revd. on another point, 1 Cow 2 Hart V. Ten Eyck, 2 Johns. Ch. 743. [383] §§ 487-48'9. Inventoet and Appraisal of Assets. 384 § 487. Penalty for not joining in inventory The statute ex- pressly provides, however, that where there are several representa- tives (any one or more of whom, on the neglect of the others, may return an inventory) those of them who so neglect, cannot there- after interfere with the administration, or have any power over the personal estate of the deceased ; but the executor or administrator so returning an inventory has the whole administration, until the delinquent return and verify an inventory as provided by the statute.* § 488. Statutory enumeration of assets. — Whether the inventory is made voluntarily or on compulsion, the statute declares that cer- tain property, enumerated in nine distinct classes, shall be deemed assets, and shall go to the executors or administrators, to be ap- plied and distributed as part of the personal estate, and shall be included in the inventory.* It does not follow, however, that no other kinds of property than those thus enumerated are to be in- ventoried and accounted for by the executor or administrator. The revisers of the original statutes reported to the Legislature that the object of the enumeration was to apprise executors, etc., of the description of property which was committed to their charge, and to settle the law upon some disputed points, and that all those articles which were likely to occasion doubt were, therefore, enu- merated. The present design is to consider assets only with refer- ence to the duty of the representative, at the outset of his admin- istration, to make an inventory of them, and to cause an appraisal of their value. Questions as to the nature and quantity of the representative's estate, what property is distributable by him and what not, — the conversion, in equity, of real property into money, and of money into real property, which frequently arise during the course of the administration, or on the judicial settlement of the representative's accounts, are more pertinent to subjects treated on subsequent pages. § 489. Interests in land — The first three classes, which require no particular comment, embrace certain interests in the lands which do not amount to a freehold, and which are designated in the stat- ute to be: " (1) Leases for years; lands held by the deceased from year to year ; and estates held by him for the life of another per- son. (2) The interest remaining in the deceased, at the time of 3 Co. Civ. Proc, § 2715, as amended ^Co. Civ. Proe., § 2712, as amended 1893; adopting 2 E. S. 86, § 23. See 1893; adopting 2 R. S. 82, §§ 6, 7, 8. Jeroms v. Jeroms, 18 Barb. 24. 385 Inventory and Appeaisal of Assets. § 490. iiis death, in a term of years, after the expiration of any estate for years therein, granted by him or any other person. (3) The interest in lands devised to an executor for a term of years, for the payment of debts." ® The interest of a decedent in a church- pew, being limited and usufructuary merely,® is not within the statute, but is real estate which the heir or devisee takes. '^, The proceeds of property in which the decedent had a base or deter- minable fee is likewise real estate.* But where the decedent, shortly before his death, rented premises for three years, by parol, a lease being drawn but not signed, and he entered and made im- provements, the whole term is an asset. ^ And where premises are leased for the term of one year and an indefinite period there- after, at an annual rent which the lessee agrees to pay, and he enters and occupies for several years, he is the owner of an estate as tenant from year to year, which, on his death, passes to his personal representatives, who hold it by virtue of the demise to him.-'" The law treats as personal property, and, therefore, within the power of the representative, any interest in the proceeds of real property, which was sold by authority of law before the de- cedent's death, and after he had become of full age.^^ § 490. Fixtures — Fixtures constitute the fourth class of assets specified in the statute ; that is, " things annexed to the freehold or to any building, for the purposes of trade or manufacture, and not fixed into the wall of a house so as to be essential to its sup- port." Except fixtures falling within this description, things an- nexed to the freehold or to any building, do not go to the executor, but pass with the freehold to the heirs or devisees.-'^ Notwithstand- ing the apparent intention of the Legislature to abolish, by this section, the well-established distinction between the rights of a tenant to remove certain kinds of fixtures which he had himself annexed to the freehold, and those of the heirs or devisees, the courts have found it necessary to resort to the principles of the BCo. Civ. Proc, § 2712, as amended ton v. McCoy, 47 N. Y. 21; Sweezy 1893. V. Thayer, 1 Duer, 2.86; Foreman v. e Freligh v. Piatt, 5 Cow. 494. See Foreman, 7 Barb. 215 ; Davison v. De Heeney v. St. Peter's Church, 2 Edw. Freest, 3 Sandf. Ch. 456; Hoey v. 608; Vielie v. Osgood, 8 Barb. 130; Kinney, 10 Abb. Pr. 400. As to the Wheaton v. Gates, 18 N. Y. 395. proceeds of a partition sale, see TMcNabb v. Pond, 4 Bradf. 7. Robinson v. McGregor, 16 Barb. 531; 8 Stillwell V. Melrose, 15 Hun, 378. Shumway v. Cooper, id. 556 ; Matter 9 Green v. Green, 2 Eedf. 408. of Gedney, 33 Misc. 160; 68 N. Y. lopugsley V. Aikin, 11 N. Y. 494. Supp. 627. 11 See Bogert v. Furman, 10 Paige, 12 Co. Civ. Proc, § 2712, as amended 496; Sweezey v. Willis, 1 Bradf. 495; 1893, subds. 4 and 9. Cox V. McBurney, 2 Sandf. 561; Hor- 25 § 491. Invejsttoet and Appraisal of Assets. 386 common law, to ascertain what is a substantial part of the free- hold and what is a thing annexed thereto for the purpose of trade and manufacture;^* the result of the decision being, that as be- tween the heir and the personal representative of the decedent, the rule still is, that whatever is annexed or afiixed to the freehold by being let into the soil or annexed to it, or to some erection upon it, to be habitually used there — particularly if for the purpose of enjoying the realty, or some profit therefrom — is a part of the freehold, and goes to the heir or devisee." As to such fixtures, the rule obtains in New York, as elsewhere, which treats as identi- cal the rights of heirs and personal representatives, grantor and grantee, and mortgagor and mortgagee ; while, in regard to certain annexations for purposes of trade and manufacture, and growing crops, the rule is the same in the case of the heir and personal representative as in that of landlord and tenant.-'' In applying this distinction, however, it is to be observed that the contract un- der which the article may have been aflSxed to the freehold, or the will from which the executor derives his authority, may modify the rights, of the parties interested in the estate. ^^ § 491. Crops and produce. — The statute also declares that " the crops growing on the land of the deceased at the time of his death," and " every kind of produce raised annually by labor and cultiva- tion, except growing grass and fruit ungathered," shall be regarded 13 House V. House, 10 Paige, 158 ; 15 For illustrations of the text, see Ford V. Oobb, 20 N. Y. 344; Voorhees the cases supra, and also Murdoek v. V. McGinnis, 48 id. 278; McRea v. Gifford, 18 N. Y. 28, 33; Potter v. Central Nat. Bank of Troy, 66 id. 489; Cromwell, 40 id. 287; Miller v. Plumb, Coey's Estate, 1 Tuck. 125 ; Livingston 6 Cow. 665 ; Walker v. Sherman, 20 V. Sulzer, 19 Hun, 375; McKeage v. Wend. 636; Farrar v. ChauffetSte, 5 Hanover Fire Ins. Co., 16 id. 239; Den. 527; Vanderpoel v. Van Allen, Wells V. Maples, 15 id. 90. 10 Barb. 157; Laflin v. Griffiths, 35 14 In Buckley v. Buckley (11 Barb. id. 58; Tabor v. Robinson, 36 id. 483; 43), it was accordingly held, that all Freeland v. Southworth, 24 Wend, erections connected with a cotton 191. factory and other mills propelled by 16 In Downing v. Marshall (1 Abb. water power, including the dams, Ct. App. Dec. 525), the court ob- water wheels and gearing, and ma- served, that, although it might be chinery fastened to the ground or true that a testator could not by his buildings, are prima facie a part of will withdraw fixtures from the effect the realty, and descend to the heir, of the statute, where such property and do not pass to the executor or ad- was necessary to pay debts, yet it ministrator. And see Lookwood v. seems the statute did not interfere Lockwood, 3 Redf. 330, 336. In Hovey with the right of the testator to re- V. Smith (1 Barb. 372), the court lieve such property from the payment held, that whether a pump and pipe, of debts or distribution, in case there balance and scales, and a beer pump remained other property sufficient to were annexed to the freehold, was a pay the debts, though it might be dis- matter of fact which belonged to the posed of in specific legacies, surrogate to decide. 387 Inventory and Appraisal of Assets. § 492. as assets/^ which is simply declaratory of the common law. A distinction has always been taken between growing crops of grain and vegetables, such as wheat, corn, and potatoes, the annual produce of labor in the cultivation of the earth, and growing trees, fruit, and grass, the natural produce of the earth, which grow spontaneously and without cultivation. The former have always been considered to be chattels, which the executor is entitled to take; while the latter are, until severed, parcel of the land, and descend to the heir.-'* If severed, they become chattels, though, to have that effect, the severance need not be an actual physical severance. Thus, a valid sale of growing trees, etc., to one having no interest in the land, has, in law, the effect to sever them from the land ; and, in that case, it seems, they go to the executors of the purchaser, as personal property.-'® But where land, upon which a crop of wheat is growing, is devised in such form as to convey it to the devisee, the crop is put upon the footing of a chattel specifically bequeathed, and the executor, though he may take the crop primarily as trustee for creditors, cannot sell it to pay general legacies ; and where it appears that there are no creditors, there being no longer any trust purpose to serve, the whole title, legal and equitable, vests in the devisee, who can compel a delivery, or in case it has been converted by the executor or any other person, may maintain an action to recover its value. ^^ § 492. Rents. — " Rents reserved to the deceased, which had ac- crued at the time of his death," go to the representative as assets, and not to the heir.^-' This means rents which had become due to the deceased, and were payable upon or before his death.^^ If the rent was not only accruing, but was due, before the decedent's death, the fact that, by the terms of the contract, the time of pay- ment was postponed until a day before which he died, does not "Co. Civ. Proe., § 2712, as amended of Clemans, 29 id. 813; 9 N. Y. Supp. 1893, subds. 5, 6. Growing grass be- 474. longs to the heir or devisee. (Matter 21 Co. Civ. Proe., § 2712, as amended of Chamberlain, 140 N. Y. 390; 55 St. 1893, subd. 7. Sums due a lessee for Eep. 665.) the storage of goods, on the premises 18 Bank of Lansingburgh v. Crary, leased, are distributable assets. ( Har- 1 Barb. 544; Kain v. Fisher, 6 N. Y. ris v. Meyer, 3 Redf. 450.) As to 597. rents from lands held under lease from 19 Warren v. Leland, 2 Barb. 613. the Indians, see Matter of McKay, 33 And see Mclntyre v. Barnard, 1 Sandf. Misc. 520 ; 68 N. Y. Supp. 925. Ch. 52. 22 Marshall v. Moseley, 21 N. Y. 20 Stall V. Wilbur, 77 N. Y. 158; 280; Matter of Poulds, 35 Misc. 171; Bradner v. Faulkner, 34 id. 347; Mat- 71 N. Y. Supp. 473. Compare 1 R. S. ter of Kick, 11 St. Rep. 688; Matter 747, § 21; Kohler v. Knapp, 1 Bradf 241. See § 532, post. § 493. IirVENTOET AND ApPEAISAL OF AsSETS. 388 affect tke executor's right to take the rent.^^ As rents of land, due and payable after decedent's death, go, according to the com- mon law, to the heir or devisee, they are not assets to be inventoried by the representative. This rule has not been affected by the stat- ute^* which provides for the apportionment of rents upon the de- termination of an estate in lands; the object of that statute being not to apportion rents between those entitled to take the real and those entitled to take the personal estate, but to apportion them between successive takers of the realty.^® Consequently an exec- utor cannot maintain an action against a lessee for a portion of rent reserved to his testator which had not accrued, i. e., had not become due, at the time of the latter's death. ^® § 493. Things in action and other property " Debts secured by mortgage, bonds, notes, or bills ; accounts, money, ^'^ and bank bills, or other circulating medium, things in action, and stock in any corporation or joint-stock association," ^ and " goods, wares, mer- chandise, utensils, furniture, cattle, provisions, moneys unpaid on contracts for the sale of lands,^® and every other species of per- 23 Wadsworth v. Allcott, 6 N. Y. 64. utor against the heir or devisee who 24 L. 1875, c. 542; now (1893) made had been tenant of the deceased." Co. Civ. Proc, § 2720. As carried 27 As to moneys deposited hy de- into the Code, the original statute cedent in trust. (Matter of Snyder, was amended, by adding, that" "this 37 Misc. 59; 74 iST. Y. Supp. 832.) section shall not apply to any case in Joint deposits in name of decedent which it shall be expressly stipulated and another. (Matter of Lent, 1 that no apportionment be made, or to Misc. 264; 22 N. Y. Supp. 917.) any sums made payable in policies of Moneys given to the wife at the time insurance of any description." See L. of her husband's death must be treated 1896, c. 547, § 192. "Under the Eng- as part of his estate, in the absence lish statute, from which our own is of proof as to the reason for such copied, the words "expressly stipu- payment or the purpose for which lated," as applied in a will, have been they were received and used. (Matter held to require either an express di- of James, 78 Hun, 121 ; 28 N. Y. Supp. rection that there shall be no appor- 992; aflfd., 146 N. Y. 78.) As to tionmeut, or language so express in moneys deposited by executor in tes- the terms of the gift that apportion- tator's bank account and subsequently ment is clearly impossible, consistently withdrawn in his representative ea- with it. Inference from the whole pacity, see Matter of Shipman, 82 tenor and context of the will is not Hun, 108; 31 N. Y. Supp. 571. sufficient. (Tyrell v. Clark, 2 Drew. 28 As to apportionment of dividends, 86.) see Co. Civ. Proc, § 2620; Matter of 25 Matter of Weeks, 5 Dem. 194; Kane, 64 App. Div. 566; 72 N. Y. disapproving Matter of Eddy, 10 Abb. Supp. 333. N. C. 396. But compare, to the con- 29 The price of land contracted to trary. Miller v. Crawford, 26 id. 376 ; be sold by a decedent, but not received 16 N. Y. Supp. 358. by him before his death, goes to the 26 Niles V. Chace, 29 Hun, 200. In representative, and not to the heir or that case, th^ tenant was the devisee devisee. On the other hand, a vendee's of the premises. The court adds: interest in an executory contract for "Very possibly, in such a case, upon the purchase of lands is real estate, a complaint properly framed, an ac- and at his death passes to his heirs, tion might be maintained by the exec- (Palmer v. Morrison, 104 N. Y. 132.) 389 Invewtoby and Appraisal of Assets. §§ 494, 495. sonal property and effects, not hereinafter excepted," are also de- clared by the statute to be personal assets.^* § 494. The appraisal. — For the purpose of completing the inven- tory, the surrog^ate must, upon application uf the executor or ad- ministrator, as often as occasion requires, appoint two disinterested appraisers to estimate and appraise the personal property. ^^ Each appraiser is entitled, in addition to his actual expenses, to a sum, to be fixed by the surrogate, not exceeding five dollars for each day actually and necessarily occupied by him in making the ap- praisal.^^ The number of days' services, and the expenses, if any, must be proved by the affidavit of the appraiwer ; and the sums pay- able therefor taxed by the surrogate, and paid by the executor or administrator.^^ The appraisement cannot be made until after five days' notice of the time and place of making it shall have been served on the legatees and next of kin residing in the county where the property to be appraised is situated, and the notice must also be posted in three of the most public places in the town.^* Service of the notice may be either personal or by mail, but in the latter event, ten days' notice of the appraisal must be given. ^^ An ap- praisement made without the previous posting of notice thereof, is invalid, vitiates the inventory, and entitles the appraiser to no fees.^^ If the assets are in several different and distant places within the State, several inventories may be made. Before acting, the appraisers must take and subscribe, before any officer author- ized to administer oaths, an oath, inserted in the inventory, 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. The appraisal of the property in the inventory must be made in presence of such of the next of kin, legatees, or creditors as may attend. ^^ § 495. Contents of inventory. — A convenient method of enumera- tion is to designate the articles in successive classes : first, those, if 30 Co. Civ. Proc, § 2712, as amended ter how large the estate, to demand 1893, subds. 8 and 9. The exceptions or receive more than the statute al- referred to are " things annexed to lows, unless the parties interested the freehold," etc. consent. (Matter of Harriot, 145 N. 31 Co. Civ. Proc, § 2711, as amended Y. 540; 65 St. Rep. 528.) 1893, adopting 2 E. S. 82, §§ 1-5, as 33 Co. Civ. Proc, § 2565. amended by L. 1873, c. 225, § 1. The 34 Co. Civ. Proc, § 2711, as amended clause in the latter act that no clerk 1893. or other person employed in the sur- 35 Co. Civ. Proc, § 2711, as amended rogate's oifiee was eligible, is dropped 1901; id., §§ 797, subd. 1, 798. out of the statute as transferred to 36 Salomon v. Heiehel, 4 Dem. 176. the Code, and the statute is repealed. 3TCo. Civ. Proc, § 2711, as amended 32 Appraisers have no right, no mat- 1893. § 496. Invbntoey and Appraisal of Assets. 390 any, which, by the statute, are absolutely exempt ; then, in a sec- ond class, the articles which it is proposed the appraisers shall set apart as allowable, in their discretion, upon their valuation; then, thirdly, assets consisting of things in possession having an ascertainable money value. After these, things in action which are supposed to be good and collectible ; and, lastly, bad debts and other things in action or in possession, which have no ascertainable value. Each article must be set down separately, with its money value, distinctly in figures, opposite.^^ If the value is unknown or doubtful, it should be so stated. The surrogate has no authority, under the statute, to direct the appraisers as to the manner in which they shall estimate the value of the property ; and there is no requirement that the representative shall make any estimate of the value of the property inventoried.^^ The representative must act upon his own responsibility in this regard ; the statute does not contemplate any interference by legatees or next of kin with this action which, aided, by appraisers, he is required to take. Conse- quently, an application by interested parties for an order direct- ing the representative to produce certain papers for the informa- tion of the appraisers, will not be granted. The proper practice in preparing an inventory is to postpone, until an accounting, all disputed questions respecting the existence or valuation of a de- cedent's assets.*" In respect to things in action, the statute requires a particular statement of all bonds, mortgages, notes, and other securities for the payment of money, belonging to the deceased, which are known to the executor or administrator, specifying the name of the debtor in each security, the date, the sum originally payable, the indorse- ments thereon, if any, with their dates, and the sum which, in the judgment of the appraisers, may be collectible on each. All moneys in whatever form, whether in specie or bank bills, or other circulating medium, belonging to the deceased, which have come to the hands of the representative, must be included ; and if none shall have come to his hands, the fact must be so stated.*^ § 496. Eepresentative's debt to decedent. — The statute expressly directs that any claim which the deceased had against the executor or administrator himself (unless, of course, it be one which abated by death), must be included in the inventory. A testator does not, 38 Co. Civ. Proc, § 2711, as amended Proe. Rep. 231; Matter of Goundry, 1893; 2 E. S. 83, § 5. 57 App. Div. 232; 68 N. Y, Supp. 155. 39 Matter of McCaflfrey, 50 Hun, 371. « Co. Civ. Proc, § 2714, as amended ioVogel V. Arbogast, 4 Dem. 399; 1893; adopting 2 E. S. 84, §§ 11, 12. s. c. as Estate of Arbogast, 9 Civ. 391 Inventory and Appeaisal of Assets. §§ 497, 498. by naming his debtor as executor, discharge any just claim he had, but the executor is liable for it, as so much money in his hands, at the time the demand becomes due; and must apply the amount as assets.*^ And if the testator has by his will given a discharge of a debt due him, or bequeathed it to the debtor, this can take effect only as a specific bequest; and cannot avail as against cred- itors. The demand must be included in the inventory, and, if necessary for the payment of debts, will be collected and applied; if not necessary for that purpose, the provision of the will will have effect as a specific legacy, in the same manner and propor- tion as other specific legacies.*^ Where an intent is manifested, on the face of the will, that a claim against an executor is to be enforced only by a deduction from a bequest to his wife, he is not chargeable with it as assets.** § 497. Foreign assets.— These may be included, and the executor may be compelled to include them in his inventory, although they are subject to administration in the foreign jurisdiction.*^ But an executor appointed exclusively to administer property in this State is only bound to account for such property as is situated here, and is not chargeable with, or liable to account for, the property of the testator situated without this State, and which never came into his actual possession, nor is he bound to enter such property upon the inventory filed by him here.*® § 498. Return of inventory — Duplicates of the inventory must be made and signed by the appraisers, one of which must be re- tained by the executor or administrator, and the other returned to the surrogate within three months from the date of the letters. On returning such inventory, the executor or administrator must take and subscribe an oath, indorsed upon or annexed to the in- ventory, stating that the inventory is in all respects just and true, that it contains a true statement of all the personal property of the deceased which has come to his knowledge, and particularly of all money, bank bills, and other circulating medium belonging to the deceased, and of all just claims of the deceased against him, 42 Co. Civ. Proc, § 2714, as amended man v. Freeman, 4 Redf. 211; Decker 1893 ; adopting 2 E. S. 84, § 13 ; Decker v. Miller, 2 Paige, 149 ; Baucus v v. Miller, 2 Paige, 149. Before the Stover, 89 N. Y. 1. statute, the appointment of a person 44 Stevens v. Stevens, 2 Redf. 265. as executor discharged a debt due from ■is Matter of Butler, 38 N". Y. 397 • 1 him to tlie testator. Tuck. 87. 43 Co. Civ. Proc, § 2714, as amended 46 Sherman v. Page, 21 Hun 59- 1893; adopting 2 E. S. 84, § 14. See affd., 85 N, Y. 123. ' ' Adair v. Brimmer, 74 N. Y. 540 ; Free- §§ 499, 500. Inventory and Appeaisal of Assets. 392 according to the best of his knowledge.*'' The inventory may be corrected at any time before it is filed by inserting or striking out an item which may have been omitted or included by mistake.'"* § 499. Supplemental inventory. — Whenever personal property or assets of any kind, not mentioned in an inventory already made, come to the possession or knowledge of an executor or administra- tor, he must cause such property to be appraised in the manner before described, and an inventory returned within two months after the discovery, and the making of the inventory and return may be enforced in the same manner as in the case of the first inventory.*^ TITLE SECOISTD. COMPELLING EETUEN OF INVENTOET. § 500. Application and order to show cause A creditor, or per- son interested in the estate, may present to the Surrogate's Court, proof by affidavit, that an executor or administrator (including a temporary administrator)®" has failed to return an inventory, or a suificicnt inventory, within three months from the date of his letters. Thereupon, if the surrogate is satisfied that the executor or administrator is in default, he must make an order requiring the delinquent to return the inventory, or a further inventory; or, in default thereof, to show cause, at a time and place therein specified, why he should not be attached.®^ The petitioner, if a creditor, must either distinctly declare himself to be such a cred- itor, or set forth facts showing that he is entitled in that char- acter.®^ It seems to be clear that where no person interested 4T Co. Civ. Proc, § 2715, as amended section 2715. This section confers no 1893; adopting 2 R. S. 84, §§ 15, 16. new power on the surrogate, but is An unverified list of assets cannot be merely declaratory of the law as al- treated as an inventory (Loesche v. ready adjudged. (Matter of Mcln- GriiRn, 3 Dem. 358) ; although a veri- tyre, 4 Redf. 489.) A request in a fied statement, if accompanied by an codicil that "my executors and trus- appraisal, may be deemed sufficient; tees be not obliged or compelled to file and such an appraisal may be had even with the surrogate any inventory of without actual inspection of assets, my estate" is against public policy; (Silverbrandt v. Widmayer, 2 Dem. the clause is invalid and of no effect. 263.) So held on application for probate. 48 Matter of Payne, 78 Hun, 292; 28 (Potter v. McAlpine, 3 Dem. 108.) N. Y. Supp. 911; affd., 151 N. Y. 654. See Brainerd v. Birdsall, 2 id. 331. 49 Co. Civ. Proc, § 2714, as amended 52 Pendle v. Waite, 3 Dem. 261. 1893; adopting 2 R. S. 86, § 24. Although a surrogate may not have BO Co. Civ. Proc, § 2672, third sen- jurisdiction to decide a disputed claim, tence; Matter of Gartner, 2 Law Bui. he must grant an order for an inven- 76. tory to a creditor, on proof that one 51 Co. Civ Proc, § 2716, as amended has not been made within the time 1893, in part; being part of former prescribed. (Creamer v. Waller, 2 393 Inventory and Appraisal of Assets. §§ 501, 502. makes the application, it is "within the power of the surrogate to proceed to compel a return, on his own motion.®^ § 501. Application, when to be made There is no fixed limit within which the application must be made, after a failure to vol- untarily return an inventory; but after a sufiicient lapse of time a presumption arises that the estate has been properly adminis- tered. The lapse of thirty years affords such a presumption, and the application in such a case was accordingly denied.^* The stat- ute does not state how many days before its return the order must be served, nor when it is to be returnable, but the form of the order will be such as to allow the necessary steps to be taken for the appointment of appraisers, the notice of the appraisal, and other proceedings for the completion of the inventory before the return day. § 502. Punislunent for contempt for disobeying order The stat- ute directs that " upon the return of the order," which of course implies proof of due service thereof, " if the delinquent has not filed a sufiicient inventory, the surrogate must issue a warrant of attachment against him, upon which the proceedings are the same as upon a warrant issued for disobedience to an order, as pre- scribed in title twelfth, of chapter seventeenth, of " the Code of Civil Procedure. ^^ The order requiring the respondent to make Dem. 351.) See Co. Civ. Proc, § 2514, The proper construction of this subd. 11. He may properly investi- clause is somewhat obscure. The gate the status of the petitioner be- title mentioned is that relating to fore proceeding with the merits. " proceedings supplementary to an (Matter of Comins, 9 App. Div. 492; execution against property." It may 41 N. Y. Supp. 323.) As to the right be presumed that the reference is to of an illegitimate child, whose parents the section of the Code which pro- intermarried prior to the Domestic vides that a person who refuses, or, Relations Law, to apply, see Matter without good cause, neglects, to obey of Barringer, 29 Misc. 457; 61 N. Y. an order therein specified, may be Supp. 1090. punished as for a contempt, although 63 Thomson v. Thomson, 1 Bradf. 24. it may be argued that the reference 54 Thomson v. Thomson, 1 Bradf. 24. is to section 2440, which authorizes See also Leroy v. Bayard, 3 id. 228. an immediate commitment. (Co. Civ. In Matter of Wetmore (N. Y. Law J., Proc, § 2457.) It is difficult, how- Feb. 28, 1893), the surrogate held that ever, to understand why reference was the receiver of the property of a not made directly to title third, of legatee was a party interested in the chapter 17, which treats of proceed- estate of decedent, and as such enti- ings to punish as for a contempt of tied to institute the proceeding. It ap- court. The doubt is increased by the pearing, however, that the estate was fact that the original draft of the distributed by the executors in the section contained the clause in ques- course of administration long previ- tion, as framed by the revision ous to the appointment of the receiver, commissioners, did refer to the last- the application to compel the exec- named title (first draft of Rev. Stat., utors to file an inventory was denied. § 2493). Again, by section 2440 of 55 Co. Civ. Proc, § 2716, as amended the Code, also contained in c. 17, 1893; formerly sectioH 2715, in part. tit. 12, it is provided that where a § 503. IjSrVEJSTTOEY AND APPEAISAL OF AsSETS. 394 a return, or show cause why he should not be attached, is one of those mandates which must be issued as the result of a judicial determination, and not one which can be properly issued, as of course, by the clerk of the court; it must be personally served upon the delinquent.^® § 503. Excusing failure to return inventory It is no excuse for failing to make and return an inventory that the assets have no present existence, that is, have been disposed of by the repre- sentative;^'' nor is it an answer to the application to compel the return of an inventory that the representative has assets largely in excess of the debts of decedent, and that he offers to give secu- rity for the payment of any debts : or that it would be troublesome and expensive to make an inventory: or to allege that the peti- tioner is actuated by curiosity and a design to abuse the process of the court.^* It is, however, a good answer that the petitioner has released his interest, or has waived his right;'^ for notwith- standing the mandatory words of the section, the court is not de- prived of discretion and the power to pass upon the right of the petitioner to demand an inventory. It is its duty to deny the application, where it appears that the petitioner is not, on the face of the proceedings, entitled to the order, — as where it ap- judgment debtor has been ordered to of the former were explicit and direct, give an undertaking, " if he fails to the better opinion was that they must comply with the order, the judge may prevail, and the commitment issue at forthwith, by warrant, commit him to once, without any opportunity for the prison, there to remain until the close executor to excuse his alleged neglect, of the examination, or the giving of But now, it would seem, reference the required undertaking," — which must be had to the provisions of the bears a striking resemblance to the new Code prescribing the proceedings portion of the Revised Statutes for where a warrant of attachment issues which the clause is a substitute, to punish for a contempt, viz.: "the surrogate shall issue an 66 White v. Lewis, 3 Dem. 170. attachment against him, and com- 67 Silverbrandt v. Widmayer, 2 Dem. mit him to the common jail of the 263. It had been held, before this county, there to remain until he shall decision, that no appraisal was pos- return such inventory." (2 R. S. 85, sible in such a ease: that where an § 17.) The note of Mr. Commissioner administratrix, without filing an in- Throop, to section 2715 of the Code, ventory, had disposed of all the assets states that the purpose of the clause of the estate, in the payment of funeral was " to apply to the proceed- expenses and debts, she could not be ings the ordinary rules applicable compelled to file a statutory inven- to cases of contempt." There was an tory; and the only remedy, in such a, inconsistency between the provisions case, was to require her to make, un- of the original clause and the general der oath, a statement of the property provisions of the statute in regard to that came into her hands, its value attachments issuing from the Surro- and its disposition, and what had be- gate's Court, which provided for the come of the proceeds. (Matter of Rob- delinquent being brought before the bins, 4 Redf. 144.) court to answer for his alleged dis- 58 Forsyth v. Burr, 37 Barb. 540. obedience, instead of being committed 59 Matter of Barnes, 1 Civ. Proc. to jail at once, But, as the directions Rep. 59. 395 Inventory and Appeaisal of Assets. § 503. pears, on the petition of the administrator of a deceased legatee, that the latter, in his lifetime, had receiyed his legacy, and exe- cuted a release.'^" So where all the parties interested were of full age, and one of them, with the assent of the others, undertook to administer upon the estate without the issuing of letters of admin- istration, which he did by settling all claims against the estate, and stating an account and distributing the balance shown to be on hand for distribution, and each of the other parties interested took his share ; in such a case no one of them can, therefore, claim, through a formal administration, an inventory and a new distribu- tion.^^ Where the application is to compel the filing of a further inventory, and the representative denies the existence of further assets, the application will be refused, ^^ inasmuch as the court, has no power to require the examination of parties or witnesses for the purpose of testing the'^correctness of the inventory as returned ; any errors therein must be corrected on a future accounting.*'' I do not understand by this that the court is without power to correct an inventory which is insufficient either in form or in substance. It is not only the return of some inventory, but the return of " a sufficient inventory " which the court is authorized to compel, and what is a sufficient inventory in a particular case depends upon the facts of that case. When the fact of insuffi- ciency does not appear on the face of the inventory, it is difficult to understand why the court may not take proof of extrinsic facts, with a view of ascertaining whether an allegation of insufficiency is supported.®* The original statute expressly permitted the sur- eo Matter of Wagner, 119 N. Y. 28; claiming the bonds as his own. 28 St. Rep. 266. Compare Schmidt v. (Young v. Young, 5 Week. Dig. 109.) Heusner, 4 Dem. 275; Matter of 63Vogel v. Arbogast, 4 Dem. 399; Barnes, 1 Civ. Proc. Rep. 59. 9 Civ. Proc. Rep. 231; Matter of Mc eiLedyard v. Bull, 119 N. Y. 62, Intyre, supra. See Weatherwax v. Shields, 45 App. 64 Under the Revised Statutes, which Div. 109; 61 N. Y. Supp. 594. contained nothing with reference to 62 Matter of Mclntyre, 4 Redf. 489. the court's power to amend an inven- The surrogate, upon an application of tory, it was held that the surrogate this kind, has no power to determine might require an executor or admin- the ownership of property, the title to istrator to show cause why the inven- which is disputed. Accordingly, where tory filed should not be amended, and the applicant seeks to have inserted, in a proper case — e. g., where no ex- in an inventory filed, property which emption was made of articles for the the executor claims as belonging to widow's use — he might order the iu- himself, the motion should be denied, ventory to be amended. This power (Greenhough v. Gfreenhough, 5 Redf. was not derived from the provisions 191.) To the same effect. Matter of of the statutes specially relating to the Goundry, 57 App. Div. 232; 68 N. Y. return of inventories, but from the Supp. 155. And a surrogate's order, clauses thereof which authorized sur- directing an administrator to inven- rogates to direct and control the con- tory certain bonds as assets of the duct, and settle the accounts, of exec- estate, does not esftop the latter from utors and administrators, and to ad- §§ 504-506. Inventoey abtd Appeaisal of Assets. 396 rogate to grant, for reasonable cause, to an executor or administra- tor in default, " further time, not exceeding four months," within which to return the inventory. Though this provision is omitted from the present statute, there is no reason to doubt the power of the court to grant further time, in a proper case. § 504. Costs. — The surrogate may, in his discretion, award costs to any party to the proceeding, not exceeding ten dollars, besides necessary disbursements, if any, for printing and referee's fees;® but in New York county the matter is governed by court rule, that no costs will be allowed to the petitioner who takes proceedings to compel the filing of an inventory by an executor or administra- tor, unless such executor or administrator shall have unreasonably delayed to make and file such inventory after having been duly requested to do so by or in behalf of the petitioner.^® § 505. Discharge of imprisoned representative, and revoking letters. — A person committed to jail, upon the return of a warrant of attachment, issued as above prescribed, " may be discharged by the surrogate, or a justice of the Supreme Court, upon his paying and delivering under oath, all the money and other property of the decedent, and all papers relating to the estate, under his control, to the surrogate, or to a person authorized by the surrogate to receive the same." ^' Where, by reason of his default in returning an inventory, he has remained committed to jail, under the sur- rogate's order, for thirty days, the surrogate is required to revoke the letters issued to him, without a petition or the issuing of a citation. The statute provides for a like revocation in case the citation cannot be served personally, by reason of the executor or administrator absconding or concealing himself.^ TITLE THIRD. ARTICLES SET APAET FOE THE FAMILY OF THE DECEASED. § 506. Estate of representative in exempted articles. — The law, upon the same grounds of humanity on which it exempts certain articles of a debtor from seizure by creditors under execution, minister justice in all matters relat- ordered a reference to take proof and ing to the affairs of deceased persons, report to the court. See Co. Civ. Proc, (Sheldon v. Bliss, 8 N. Y. 31.) In § 2546, and § 117, ante. Matter of Haley (1 Law Bui. 32 [N. 65 Co. Civ. Proc., §§ 2556, 3236, Y. Surr. Ct, Feb., 1879]), on an ap- 3251, subd. 3. plication by an interested party for esRule XIII, March, 1888. an amended inventory on allegations 67 Co. Civ. Proc, § 2716, last clause. of omissions of some articles, and un- 68 Co. Civ. Proc, § 2691, subds. 3, 4. dervaluation of others, Calvin, S., See § 428, ante. 397 Inventory and Appraisal of Assets. § 507. sets apart certain of the goods, etc., of a decedent, for the use and benefit of a widow or minor children, or both. These articles are enumerated by the statute. They are as much assets as any part of the personal estate, and as such would pass under the will, or be applicable to the payment of debts, but for the statutory provision exempting them from the operation of the laws relating to administration of estates. In the eye of the law, therefore, these, like other personalty, pass to the executor, for the purposes of the trust vested in him; and he has a right to their possession and cus- tody, in order to inventory the articles, and set apart those which the statute exempts.^* His authority in this respect, however, is that of a trustee for the widow or family; and if he refuses or neglects to set apart the articles, the surrogate may cite him to show cause why he should not be compelled to do so,™ or may rectify the omission upon the accounting.''^ If he sells the articles, the proceeds constitute a trust in his hands, which the surrogate may compel him to pay over, if the widow affirms the sale.''^ It seems also that in case of wilKul neglect, he is liable to an action.''* § 507. The interest of widow, etc., in exempted articles The effect of the statute is to give the widow and children of a person owning personal property of the character specified therein, at least a beneficial interest in so much as the statute specifies, sub- ject only to the right of the executor or administrator to take pos- session for the purpose of inventorying it ; and (so far at least as the selection of the articles is not made dependent on the discre- tion of the appraisers) the widow may sell them immediately, subject, however, to the aforesaid right.''* The testator cannot by his will defeat this provision which the law makes for the family.''® To entitle the widow to the possession of articles enumerated (e. g., sheep and swine) the deceased husband must have had, or his per- sonal representatives must have, such an ownership and possession of them at the time of the making of the inventory, as will permit of their delivery to the widow. When he had but a half interest esVoelckner v. Hudson, 1 Sandf. counting. (Clayton v. Wardell, 2 215. Bradf. 1.) TO Sheldon v. Bliss, 8 N. Y. 31. And 73 Voelekner v. Hudson, 1 Sandf. see Loekwood v. Lookwood, 3 Eedf. 215. 330, 336. T4 Fox v. Burns, 12 Barb. 677. 71 Matter of Maack, 13 Misc. 368; 75 Vedder v. Saxton, 46 Barb. 188; 35 N. Y. Supp. 109; Co. Civ. Proc, Matter of Tobin, 40 St. Rep. 366; 16 § 2724. N. Y. Supp. 462. A woman may, by 72 Sheldon v. Bliss, 8 N. Y. 31. And antenuptial agreement, waive her an error in this matter may be cor- rights to the exempt articles. (Young rected by a proper credit on an ac- v. Hicks, 92 N. Y. 235.) See Matter of Allen, 36 Misc. 398. §508. Inventory and Appraisal of Assets. 398 therein, they cannot be delivered to her, nor can any allowance be made therefor.''® § 508. I^empt articles enumerated — The enumeration given by the Revised Statutes of the articles to be inventoried and appraised, and of the articles -which are exempted for the benefit of decedent's widow and children, was, with doubtful propriety, carried into the Code of Civil Procedure by the Legislature of 1893.^^ The statute provides that " if a man, having a family, die, leaving a widow or minor child or children," certain enumerated articles " shall not be deemed assets, but must be included and stated in the inventory of the estate, without being appraised ;" '^^ and " if TCBaucus V. Stover, 24 Hun, 109; revd. on another point, 89 N. Y. 1; Matter of Perry, 38 Misc. 167. Com- pare Matter of Williams, 31 App. Div. 617; Matter of Hembury, 37 Misc. 454, where the estate contained none of the articles specified in the section. T7 Co. Civ. Proc, § 2713, as amended 1893; adopting 2 E. S., §§ 9, 10, as amended L. 1874, c. 470; L. 1887, c. 630, etc. 78 The articles enumerated by the statute are as follows: " 1. All spinning wheels, weaving looms, one knitting machine, one sew- ing machine, and stoves put up or kept for use by his family. " 2. The family bible, family pic- tures, and school books used by or in such family, and books not exceeding in value fifty dollars, which were kept and used as part of the family library. " 3. All sheep to the number of ten, with their fleeces, and the yarn and cloth manufactured from the same, one cow, two swine and the pork of such swine, and necessary food for such swine, sheep or cow, for sixty days, and all necessary provisions and fuel for such widow, child or children for sixty days after the death of such deceased person. " 4. All the necessary wearing ap- parel, beds, bedsteads and bedding, necessary cooking utensils, the cloth- ing 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 tea-pot and twelve spoons, and other household furniture which shall not exceed one hundred and fifty dollars in value. " 5. Other necessary household furni- ture, provisions or other personal property in the discretion of the ap- praisers, to the value of not exceeding one hundred and fifty dollars. " Such articles and property shall remain in the possession of the widow, if there be one, during the time she lives with and provides for such minor child or children. If she ceases so to do, she shall be allowed to re- tain as her own, her wearing apparel, her ornaments and one bed, bedstead and the bedding for the same, and the property specified in subdivision five ; and the other articles so exempted shall then belong to such minor child or children. If she lives with and pro- vides for such minor child or children until it or they become of full age, all the articles and property in this section mentioned shall belong to the widow. If there be a widow and no minor child, all the articles and prop- erty in this section mentioned shall belong to the widow. If a married woman die, leaving surviving her a husband, or a minor child or children, the same articles and personal prop- erty shall be set apart by the ap- praisers with the same effect for the benefit of such husband or minor child or children." The fifth subdivision, above, was taken from L. 1889, c. 406, § 2. All the remainder of that statute was re- pealed by L. 1890, c. 173, § 2. The cases under the Act of 1889, such as Daggett V. Daggett, 37 St. Rep. 810; 14 N. y. Supp. 182; Matter of Steward, 30 St. Rep. 438; 10 N. Y. Supp. 24; Matter of Tipple, 13 id. 263; Matter of Koch, 31 St. Rep. 963; 9 N. Y. Supp. 814; 24 Abb. N. C. 468; Matter of Hildebrand, 1 Misc. 245; Matter of Mulligan, 4 id. 361, are of interest only where that statute is applicable. 399 Inventory and Appraisal op Assets. § 508. a married woman die, leaving surviving her a husband or a minor child or children, the same articles and personal property shall be set apart by the appraisers, with the same effect, for the benefit of such husband or minor child or children." ''^ It will be noted that the widow or the husband, as the case may be, are entitled ahso- lutely to the articles specified in the first four subdivisions of the section, and to $150 worth of household furniture beyond ; whereas, under the fifth subdivision he or she is entitled, " in the discretion of the appraisers, to $150 worth of furniture, provisions, or other personal property." It is proper to treat cash as " personal prop-- erty," and where the furniture and provisions are not of sufficient value to make up the $150, cash may be allowed to make up the deficiency.*" The appraisers' discretion can obviously be exercised only as to what particular articles they will set apart ;** and they may set apart a portion in furniture or other articles, or the whole in money. The exemption of " household furniture which shall not exceed one hundred and fifty dollars in value," is in addition to the other exempt articles.*^ The appraisers' estimate of the value of the articles is not regarded as the exercise of an absolute discretion, but is subject to review by the surrogate, who may correct, not only any irregularity or mistake, but also an improper valuation. And if they set apart articles which exceed the statute limit, and this appears on the face of the inventory, the proceedings may be deemed void, unless the items are separable.^ 79 Co. Civ. Proc, § 2713, as amended 72; Kelly v. Moore, 18 Abb. N. C. 1893, last sentence ; adopting, as modi- 468 ; Matter of Miller, 1 Law Bui. 48. fied, L. 1887, c. 630. The right of a The testator gave his widow " aill of husband under this statute is not de- the household property in the dwell- feated by a provision in his favor in ing-house and the use of the dwelling- the wife's will, which is not specified house during her life." In the dwell- to be in lieu of such interest. (Mat- ing-house, at the time of the testator's ter of Harris, 2 Connoly, 4; 20 N. Y. death, was a quantity of coal and Supp. 68.) The ornaments of a de- wood, provided for family use, and a ceased wife suitable for her station shotgun. Held, that these articles cannot be set aside for the husband were properly allowed to the widow; but must be included in the assets be- that the shotgun might have been pro- longing to her estate. (Matter of vided for the defense of the house. Whiting, 19 Misc. 85 ; 43 N. Y. Supp. and, in the absence of proof, the court 969.) was not required to presume the con- 80 Matter of Durscheidt, 65 Hun, trary. The appraisers also set apart 136; 19 N. Y. Supp. 973. If the ap- as exempt and for the use of the praiser fails to set apart the furni- widow, a horse, phaeton, and harness, ture, the widow is entitled to its cash of the value of $150. Held, that the value. (Matter of Bidgood, 36 Misc. gift of the household property did not 516; 73 N. Y. Supp. 1061.) A piano preclude this allowance; that "other is household furniture, within the stat- personal property " was available for ute. ( Matter of Allen, 36 Misc. 398 ; the exemption and might be necessary. 73 N. Y. Supp. 750.) (Matter of Frazer, 92 N. Y. 239.) 81 Matter of Bidgood, supra. 83 Applegate v. Cameron, 2 Bradf. 82 Lyendecker v. Eisemann, 3 Dem. 119. The widow's dower right is not §§ 509, 510. Inventory and Appeaisal of Assets. 400 Beyond the articles thus provided for the family, the family are not entitled to their support from the estate pending administra- tion;^* and whatever payments the executor or administrator makes to them, and whatever portion of the assets they are allowed to consume, must be accounted for, on the settlement of the estate.*^ The widow's right, under the statute,*® to tarry in the chief house of her husband forty days after his death, without liability for rent, and to have, during that time, her reasonable sustenance out of the estate, will be mentioned hereafter.*'^ § 509. " Having a family." — As these words are used in the stat- ute, they do not necessarily mean having children. If a man has a wife and relatives, living with him at the time of his death, he has a family within the meaning of the statute, although he has no children.^ It is not even necessary that he should have been liv- ing with his wife and children at the time of his death, or have contributed to their support prior to that time.*^ It is not neces- sary that the decedent should have been a householder, or that he or his widow and children should have been inhabitants of this State, to entitle the latter to the possession of the exempted articles.^ § 510. Compelling the setting apart, etc., of exempt articles. — " Where an executor or administrator has failed to set apart prop- erty for a surviving husband, wife, or child, as prescribed by law, the person aggrieved may present a petition to the Surrogate's Court, setting forth the failure, and praying for a decree, requir- ing such executor or administrator to set apart the property accord- ingly; or, if it had been lost, injured, or disposed of, to pay the value thereof, or the amount of the injury thereto ; and that he be cited to show cause why such a decree should not be made." If the surrogate is of the opinion that sufficient cause is shown, he must issue a citation accordingly. On the return of the citation, the surrogate must make such a decree in the premises as justice requires. In a proper case, the decree may require the executor to be considered in estimating the 367; 14 N. Y. Supp. 841; affd., value of the personalty. (Matter of 133 IST. Y. . 601), the decedent had Steward, 90 Hun, 94; 35 N. Y. Supp. lived apart from his wife for ten 366.) years preceding his death, and did not 84Hennessy's Estate, 1 Tuck. 335. contribute to her support, but pro- 85 See Heidenheimer v. Wilson, 31 vided clothing for his daughter, until Barb. 636. she became of age. Held, that he had 86 1 R. S. 742, § 17. a, family within the statute. 87 See c. XVII, post. 90 Kapp v. Public Adm'r, 2 Bradf . 88Kain v. Fisher, 6 N. Y. 597. 258. 89 In Matter of Shedd (60 Hun, 401 Inventoey and Appeaisal of Assets. § -' T- personally to pay the value of the property, or the amount of the injury thereto. The decree, made upon a judicial settlement of the account of an executor or administrator, may award to a sur- viving husband, wife, or child, the same relief which may be awarded, in his or her favor, on a petition presented as above.®' TITLE FOURTH. EPEECT OF INVENTOET AS EVIDENCE. § 511. Impeaching inventory. — The making and filing of an in- ventory and appraisal of the effects of a deceased person is as Avell for the protection of the executor or administrator as for the legatees, next of kin, and creditors. The inventory is only pre- sumptive evidence against the person filing it. The statute pro- vides, that in " any action or special proceeding, to which an exec- utor or administrator is a party, wherein the question, whether he has administered the estate of the decedent, or any part thereof, is in issue, or is the subject of inquiry, and the inventory of as- sets, filed by him, is given in evidence, either party may rebut the same, by proof, either (1) that any property was omitted in the inventory, or was not returned therein at its true value; or (2) that any property has perished or has been lost, without the fault of the executor or administrator ; or has been fairly sold by him, at private or public sale, at a less price than the value so returned ; or that, since the return of the inventory, it has deteriorated or enhanced in value." ®^ But these provisions were not designed 91 Co. Civ. Proc, § 2724, as amended utor or administrator. The former 1893 ; consolidating former sections statute applied only to actions against 2720, 2721; Matter of Maaek, 13 Misc. the representative. A construction of 368; 35 N. Y. Supp. 109. It has been the original section, which appears to held that, on the accounting of an be applicable to the revised provision, administratrix, she cannot be allowed was given in Underbill v. Newburger for the articles which she might, as ( 4 Redf . 499 ) : " Where the executors widow, have claimed to be exempt by or administrators give the inventory law in her favor, on making the in- in evidence, to fix their liability, the ventory, if they were not so allowed; plaintiflF may show the omission of especially where there is evidence that property therefrom, or an undervalua- she had possession of assets not in- tion, or an enhanced value. While, if ventoried; and that if, through igno- the plaintiff shall give it in evidence, ranee or mistake, she omitted to claim to fix their liability, they shall be at the exemption at the proper time, the liberty, in order to overcome it, to remedy is a special application to cor- show that the property has perished rect the mistake, on notice to the or been lost without their fault; that creditors and next of kin. (Cornwell it has been fairly sold at private or V. Deck, 2 Eedf. 87.) public sale, at a less price, or that it 92 Co. Civ. Proc, § 1832; extending has deteriorated; and that these con- the original to special proceedings by ditions must be affirmatively shown in or against, and to actions by, an exee- order to overcome the presumption 26 § 512. Inventoey and Appraisal of Assets. 402 to operate, upon an accounting, where an administrator's manage- ment of his trust is upon trial ;®^ and an inventory has not the effect of binding, even presumptively, a successor in office of the executor filing it.®* It is also provided, that " in such an action or special proceeding, the executor or administrator shall not be charged with a demand or right of action, included in the in- ventory, unless it appear that the same has been collected, or might have been collected, with due diligence." ^ But the Code declares that " the last two sections ^ do not vary any rule of evidence, re- specting any proof, which an executor or administrator may now ^^ make." ®* An inventory filed by co-executors, though evidence of the joint possession of securities and receipt of moneys by them, will not preclude eithet of them from proving, on the accounting, that they were in fact held and received exclusively by one of their number.®^ § 512. Conclusive effect of inventory — The inventory is, however, prima facie evidence of the value of the property, as well as of what assets have come into the hands of the executors ; and if they have disposed of any of the property, they are prima facie liable for the amount of money at which it was inventoried.' If it is shown that assets were disposed of for more than the inventory price, they are of course liable for that amount. And where as- sets are taken by an administrator at the inventory price, if it is shown that they are of greater value than that price, he must answer for the true value.^ There was formerly no way in which an inventory could be impeached in a proceeding in relation to the inventory itself, but it might be surcharged or falsified on raised by the inventory, by the parties utor. The latter in his inventory seeking to overcome it." Compare charged himself therewith. Held, that Woodhouse v. Woodhouse, 5 Redf. 131. the presumption arising from the in- 93 Matter of Woodworth, 5 Dem. ventory, that the sum was actually 156. See post, c. XIX, art. 5, subd. 2. due, was not overcome by proof of a 9* Solomons v. Kursheedt, 3 Dem. sealed undertaking of the executor 307. with testator to pay said sum upon a 95 Co. Civ. Proc, § 1833. SeeThorne certain contingency which had failed, V. Underbill, 1 Dem. 306. As to what where it did not appear that such un- is " due diligence," see Smith v. Colla- dertaking contained the whole agree- mer, 2 Dem. 147. ment with the testator. 96 Sections 1832, 1833, supra. 99 Taylor v. Shuit, 4 Dem. 528. 97 That is, under the law prevailing l Ames v. Downing, 1 Bradf. 321 ; prior to September 1, 1880. See Co. Matter of Shlpman, 82 Hun, 108: 31 'Civ. Proc, § 3343, subd. 22; id., N. Y. Supp. 571; Matter of Childs, 26 § 3356. id. 721; Matter of Maack, 13 Misc. 98 Co. Civ. Proc, § 1834. See Wil- 368; Matter of Mullon, 145 N. Y. 98; loughby V. McCluer, 2 Wend. 608. In 64 St. Rep. 551. Bellinger v. Potter (36 St. Rep. 601), 2 Zilkin v. Carhart, 3 Bradf. 376. the testator bequeathed a certain sum See Matter of Mullon, 145 N. Y. 98; described as due him from his exec- 64 St. Rep. 551. 403 Inventory and Appeaisal of Assets. § 512. an accounting.* The unexplained omission of an administrator to make any claim of set-off or defense to a demand against himself in the inventory, is evidence against the validity of such a de- fense.* Where an executor, in preparing an inventory of the es- tate, included therein a promissory note given by him to the testator, which note was then outlawed, this was held a sufficient acknowledgment in writing to remove the bar of the Statute of Limitations.^ Where a bank deposit is inventoried as cash, but the money is not actually collected before the bank fails, the ad- ministrator is not absolutely concluded, but the inventory may be shown to be incorrect, — e. g., upon a final accounting.^ So, too, the fact that a donee of certain property, handed it to the executor on his demand that it should be inventoried, does not preclude a subsequent claim therefor.^ 3 Montgomery v. Dunning, 2 Bradf. e Sheerin v. Public Adm'r, 2 Redf. 220. And see Thomson v. Thomson, 1 421. id. 24. But the rule seems now to be T Matter of Van Slooten, 76 Hun, changed. See Co. Civ. Proc, § 1832, 55; 27 N. Y. Supp. 666. This case supra. was subsequently reversed ( 145 N. Y. 4 Lloyd V. Lloyd, 1 Redf. 399. 327), on the ground that the taking SRoss V. Ross, 6 Hun, 80; Matter of the property by the executor was of Daggett, 1 Misc. 248; 22 N. Y. his individual act, and did not eon- Supp, 911. stitute a claim against the estate as such. CHAPTEK XVII. ADMINISTRATION OF ESTATE AND PERFORMANCE OF WILL. TITLE FIKST. THE OFFICE AND ESTATE OF EXECUTOES, ADMININSTEATOES, AND TESTAMENTAET TEUSTBES. ARTICLE FIRST. THE TITLE AND OBJECT OF THE OFFICE. § 513. The office of executor. — We have, in preceding chapters, given in detail an account of the proceedings in the Surrogate's Court by which executors and administrators, and, in certain cases, testamentary trustees, acquire authority to act as such; and have also pointed out certain specific duties prescribed by statute, with respect to executors and administrators, as to appraising the as- sets of their decedent, and making and filing an inventory. The duties and powers of the officers above mentioned, in the manage- ment and disposition of the estate in their hands, their rights of action, and their accountability in law and equity for the faithful performance of their obligations, are subjects of large importance, not strictly within the scope of this volume, and can be treated, in a single chapter, in only the most general way. An executor has been defined to be one to whom the execution of a last will and testament — that is, the application of the estate pursuant to the directions of a will — ■ is, by the testator's appoint- ment, confided. The term was originally employed in a sense sufficiently broad to include an administrator upon the estate of an intestate, a distinction being taken between executor testamentarius and executor dativus,^ but this usage is obsolete. He can derive his office from a testamentary appointment only, though it is not neces- sary that he be expressly named as such. If, by any word or cir- cumlocution, the testator recommend or commit to one or more the charge and ofl5ce, or the rights which appertain to an executor, it IWms. on Exrs. (6th Am. ed.) 266. [404] 405 Administeation of Estate, Etc. § 514. amounts to as much as the ordaining or constituting him or them to be executors.^ And, as has been before noted, it is not even requisite that the testator should constructively name the executor, for he may delegate to another the power to make the nomina- tion.^ At common law, although an executor could not assign the executorship, yet he might continue it by his will ; and in case of the death of the sole executor, the executor of such executor was, to all intents and purposes, the executor and representative of the first testator. But our statutes have abrogated this rule.* So, at common law, one who, not being either executor or administrator, intermeddled with the goods of the deceased, or did any other act characteristic of the office of executor, was thereby an executor of his own wrong, called more usually an executor de son tort.^ But our law does not recognize such an executor, and one who is neither executor nor administrator cannot acquire any title to the assets, as a representative of the deceased.® § 514. Testamentary trustees — A distinction is made between the office of executor and that of a testamentary trustee. The duty of an executor as such, and his duty, as a trustee of an express trust under the will, are entirely different. As executor, it is his duty to collect the property, and pay the debts and general legacies; while, as trustee, it is his duty to invest and manage the particular fund or trust estate in accordance with the directions of the will.'' The qualUy of an executor's title necessarily depends upon the language of the will which he is to perform. A will, for example, which gives the executor power to collect and pay over dividends on the stock of an incorporated company, does not necessarily vest in him title to the stock; such a power may be lodged with one person while the title is in another.* 2 See Humbert v. Wurster, 22 Hun, the only child of the decedent, where 405; 1 Wms. on Exrs. (6th Am. ed.) the party asserting the claim sought 280. to repudiate the settlement. Compare 3 Hartnett v. Wandell, 60 N. Y. 346 ; Ahrens v. Jones, 169 N. Y. 555. § 291, ante. 6 See 2 R. S. 81, § 78; id., 449, 4 See Fosdick v. Delafield, 2 Redf. § 17; § 130, ante. 392. TSee §§ 319, 449. A release exe- 5 Anderson v. Daley, 38 App. Div. cuted to executors does not discharge 505; 56 N. Y. Supp. 511; appeal dis- them as trustees. (Doritv v. Dority, missed, 159 N. Y. 146. See Mills v. 40 App. Div. 236; 57 N. Y. Supp Mills (115 id. 80; 23 St. Rep. 604), 1073.) where it was held, that one who was 8 Onondaga Trust & D. Co. v. Price, a mere debtor of a decedent, in his 87 N. Y. 542. See Matter of Under- lifetime, and had in no way inter- hill, 35 App. Div. 434 ; 54 N. Y. Supp. fered with the decedent's estate since 967; aflfd., 158 N. Y. 721; Robinson his death, could not be treated as an v. Adams, 30 Misc. 537; 63 N. Y. executor de son tort, simply because Supp. 816. he assumed to make a settlement with §§ 515, 516. Administration of Estate, Etc. 406 § 515. The office of administrator At an early period in Eng- land, the sovereign, as parens pwtrice, took possession of the goods of an intestate, it being presumed that the deceased, by his neglect to make a will, acknowledged that he was without a rightful heir. Subsequently the crown conceded the right to distribute the ef- fects to the near relatives of the deceased, but this was to be done imder the direction of the church. The ecclesiastical authorities were not slow to realize the benefits of this supervisory power, and, before the lapse of much time, the privilege of administering the goods of an intestate was exercised by the bishops instead of the crown. The abuses of this power — amounting almost invariably to the confiscation of the whole estate for the benefit of the bishop or his order — grew to be so great, that Parliament interfered at last, and deprived the church of its power to administer the estates of deceased persons. Such administration in this country has al- ways been conferred by law upon some one of the nearest of kin of the deceased, upon the order and under the authority of a civil tribunal. In general, it may be said there is no distinction be- tween the rights, powers, and duties of executors and adminis- trators as such.^ § 516. Representative character of executors, etc An executor or administrator is said to be the representative of the testator or intestate in respect to his personal estate, the whole of which vests in the one on the death of the testator, and in the other on the grant of letters of administration, which relate back to the time of the decease of the intestate.-'" The interest thus vested in such per- sonal representatives is for the benefit of the estate, to discover and collect the effects, preserve them from waste, pay the debts in their legal order, and to distribute the surplus, if any, according to the will of the testator or the Statute of Distributions, as the case may be. To this end they are invested with every power and remedy which belonged to the deceased while living, within the jurisdiction of the State in which the letters were granted. ^^ l^Tevertheless, they are not the mere representatives of their testator or intestate, but are, under the statutes of this State, trustees for the benefit of the persons interested in the estate ;^* and they may, s Douglass v. Satterlee, 11 Johns. n Schultz v. Pulver, 11 Wend. 361. 16; Murray v. Blatchford, 1 Wend. Compare Baboock v. Booth, 2 Hill, 583; Jackson v. Robinson, 4 Id. 436. 181. 10 Valentine v. Jackson, 9 Wend. i2Dox v. Backenstose, 12 Wend. 302; Babeock v. Booth, 2 Hill, 181; 542. And see post, tit. 6, art. 1 of Kaufman v. Schoeffel, 46 Hun, 571. this chapter. See § 364, ante. 407 Administkation of Estate, Etc. §§ 517, 518. for the benefit of creditors or others interested in the estate, dis- affirm, treat as void, and resist all acts done, transfers and agree- ments made, in fraud of such persons' rights.^^ § 517. Foreign executors and administrators The term " for- eign," as applied to executors or administrators, more properly distinguishes the personal representatives of one dying domiciled without the State, whose authority is solely evidenced by letters issued from a tribunal of the decedent's domicile. But it has al- ready appeared that the Surrogates' Courts of this State have jurisdiction, in certain instances, to issue original letters upon the estate of a nonresident decedent ; thus giving rise, where the foreign court has also acted, to what has been termed a " conflicting grant of letters." ^* And, finally, the Code provides for the issuing, from our Surrogates' Courts, of letters upon the estate of such a decedent, in aid of letters granted by a tribunal of his domicile, and at the instance of the person or persons holding the same.-^^ § 518. Their rights and liabilities here It is pertinent to re- mark, in this place, upon the rights and liabilities of foreign rep- resentatives, in the sense above indicated, in the courts, and otherwise, within the limits of this State. The general rule is, that the authority of a foreign executor or administrator is strictly local, and is not recognized outside of the jurisdiction in which his letters were granted.-'® His appointment by a court of a foreign country, — and, for this purpose, the several States re- gard each other as foreign countries, — puts him in no different position from that which he would occupy if no letters had ever 13 L. 1858, c. 314, § 1, as amended brings an action in a, court of this L. 1889, c. 487. See post, tit. 1, art. State, it is not necessary for him to 3, subd. 2 of this chapter. allege probate of the will in a tribunal 1* See Stone v. Scripture, 4 Lans. of the testator's domicile. ( Leland v. 186. Manning, 4 Hun, 7.) 15 As to such letters, — called ancil- 16 See Isham v. Gibbons, 1 Bradf . lary letters testamentary and of ad- 69; Morrell v. Dickey, 1 Johns. Ch. ministration, — and the object of the 153 ; Doolittle v. Lewis, 7 id. 45 ; Wil- oflace so created, see §§ 312, 371, ante; liams v. Storrs, 6 id. 353; Ulster Co. Parsons v. LjTnan, 20 K Y. 103; Sav. Inst. v. Fourth Nat. Bank, 28 Palmer v. Phoenix Mut. L. Ins. Co., St. Rep. 24; 8 N. Y. Supp. 162. A 84 id. 63. In Cummings v. Banks (2 trust created in this State, of which Barb. 602), it was held that one ap- a married woman is trustee, remains pointed here administrator with the valid although she subsequently re- will annexed, of a testator dying dom- moves to another State, by the law of iciled in a foreign country, pursuant which she is incapable of acting as a to a power of attorney given by the trustee; such removal will not divest foreign executors, was not independent her title to the fund, which remains in of, but ancillary to, them, and was her so long as no one is appointed to bound by a decree rendered against take it from her. (Schulter v. Bow- them by a court of the testator's dom- ery Sav. Bank, 117 N. Y. 125; 26 St. icile. Where the ancillary executor Rep. 922.) § 518. Administration of Estate, Etc. 408 been granted to him. But these general propositions must be taken with some modifications, in respect to which it will be con- venient to distinguish between acts involving litigation and those where no judicial action is taken. As to the latter, it is to be observed that the courts have, in some cases, allowed foreign rep- resentatives to do certain acts here, as to take possession of goods, receive voluntary payment of debts, dispose of assets situated here, foreclose, by advertisement under our statutes, a mortgage of real property situated in this State, and otherwise exercise authority so far as possible without bringing suit.^'' Even as to acts of this character, however, it has been held that a distinction is to be made between cases where there is a conflicting grant of letters, and those where such a circumstance does not exist.-'* But such repre- sentatives have no standing as parties plaintiff in the courts of this State, without taking out letters here ;^® although the assignee of a foreign executor may maintain an action in a court of this State, upon a cause of action transferred to him by the latter, since, in such a case, he sues in his own right, notwithstanding that his title may be derived from a representative.^" The exemption of foreign executors and administrators from liability to prosecu- tion in our courts is not coextensive with their disability to sue therein. They cannot be so proceeded against in a purely legal action,^'^ nor can they be substituted in such an action, pending against the decedent here at the time of his death ;^^ but they are liable to an action in equity, under certain circumstances, and 17 Thus a bank is protected in pay- this State, it was held that the satis- ing decedent's deposit to his foreign faction of the mortgage by the foreign administrator upon presentation of administrator was no defense. See letters. (Schulter v. Bowery Sav. Co. Civ. Proc, § 2478; § 145, ante. Bank, 49 Hun, 607; 16 St. Rep. 784; 19 Parsons v. Lyman, 20 N. Y. 103; Maas V. German Sav. Bank, 73 App. Middlebrook v. Merchants' Bank, 24 Div. 524.) See Vroom V. Van Home, How. Pr. 267; Matter of Butler, 38 10 Paige, 549; Brown v. Brown, 1 N. Y. 397; Matter of Webb, 11 Hun, Barb. Ch. 187 ; Middlebrook v. Mer- 124. Compare Holyoke v. Union Mut chants' Bank, 14 Abb. Pr. 462, note ; L. Ins. Co., 22 id. 75 ; Palmer v. Phce- 24 How. Pr. 267; 41 Barb. 481; 3 nix Mut. L. Ins. Co., 84 N. Y. 63 Keyes, 135; Williams v. Storrs, 6 Philipe v. Levy, 56 Super. Ct. (J. & Johns. Ch. 353; Doolittle v. Lewis, 7 S.) 606; 16 St. Rep. 889. id. 45; Averill v. Taylor, 5 How. Pr. 20 Peterson v. Chemical Bank, 32 476. N. Y. 21 ; Smith v. Tiffany, 16 Hun, 18 Stone V. Scripture, 4 Lans. 1S6. 552. See McBride v. Farmers' Bank, Where original administration was 26 N. Y. 450. granted, first in New York and after- 21 Field v. Gibson, 56 How. Pr. 232 ; ward in New Hampshire, upon the Matter of Webb, 11 Hun, 124; Ver- estate of one dying domiciled in the milya v. Beatty, 6 Barb. 429; Metcalf latter State; and, an action having v. Clark, 41 id. 45; Ferguson v. Harri- been brought here by the New York son, 27 Misc. 380 ; 58 N. Y. Supp. 850. administrator, to foreclose a mortgage 22 Matter of Webb, 11 Hun, 124; upon lands here, given to secure pay- Flandvow v. Hammond, 13 App. Div. mer.t of a bond made by a resident of 325; 43 N. Y. Supp. 143. 409 Administration of Estate, Etc. §518. upon proper allegation, to prevent waste of property brought within the jurisdiction, and secure its application to the payment of the debts of the testator according to the law of the State whence they derived their authority.^^ Their responsibility ex- tends to assets shown to have been in their possession within this State, no matter where they have been received.^* And their character as foreign executors or administrators furnishes no ob- jection to an action by them^^ or against them, in a court of equity of this State in their character as trustees. Thus, an action may be maintained against them where the alleged liability is not that of the decedent or his estate, but is predicated upon their own wrongful use or misapplication of trust funds which have come to their hands,^® or on a breach of contract made by them in their representative character.^^ 23 Field V. Gibson, 56 How. Pr. 232. See Sere v. Coit, 5 Abb. Pr. 481 ; Duffy V. Smith, 1 Dem. 202; Farmers' L. & T. Co. V. Ferris, 67 App. Div. 1; 73 N. Y. Supp. 475; Stone v. Demarest, 67 App. Div. 549; 73 N. Y. Supp. 903; Collins V. Stewart, 2 App. Div. 271; 37 N. Y. Supp. 891 ; Campbell v. Tou- sey, 7 Cow. 64. The last case, with other cases, holding that a foreign ex- ecutor or administrator, who comes into a State in which he has not been appointed, bringing with Mm assets collected in such foreign jurisdiction, may be held liable to creditors in the State to which he comes, to the ex- tent of such assets, has been ques- tioned in Judy v. Kelly (11 111. 211; 50 Am. Dee. 455) and in Story on Conflict of Laws, § 514b, and is com- mented on in 34 Alb. L. J. 286. See Hardenberg v. Manning, 4 Dem. 437 ; Smith V. Central Tr. Co., 7 App. Div. 278; 40 N. Y. Supp. 152. 24 Gulick v. Gulick, 33 Barb. 92. In that case it appeared that the dece- dent was a resident of California, and died, leaving personal property there, and holding a demand against J., his brother. The latter possessed himself of the property, and died in a foreign country, and his administratrix, ap- pointed in California, took possession of his assets, and brought the same into this State. Held, that the sur- rogate here had jurisdiction to ap- point an administrator of the estate of the first-mentioned decedent; and that such administrator could main- tain an action in the courts of this State against the administratrix of J., to recover the indebtedness of the estate of J. to the estate of R. In Sedgwick v. Ashburner (1 Bradf. 105) an executor of a decedent who was domiciled in Massachusetts, took out letters in India and collected the debt there and transmitted to S. a coexecu- tor, who resided in New York, but had taken out letters in Massachu- setts, bills for the amount of a share thereof belonging to A. under the will, with directions to indorse them with- out recourse, and deliver them. Held that, although the executor S. took out letters in New York, and named the bills in the inventory, and al- though A., the legatee, refused to ac- cept the bills in release of the foreign executor's liability, neither the bills nor their proceeds were assets in the hands of S., and that he must be deemed to have received them as the agent of the foreign executor or of the legatee. See Parsons v. Lyman, 20 N. Y. 103; Sherwood v. Wooster, 11 Paige, 441; Vermilya v. Beatty, 6 Barb. 429; Kohler v. Knapp, 1 Bradf. 241 ; Ordronaux v. Helie, 3 Sandf . Ch. 512; Gray v. Ryle, 50 Super. Ct. (J. & S.) 198; Ferguson v. Harrison, 27 Misc. 380; Jones v. Jones, 8 id. 660; 30 N. Y. Supp. 177. 25 Bloodgood V. Mass. Ben. L. Assn., 19 Misc. 460; 44 N. Y. Supp. 563. 26 Montalvan v. Clover, 32 Barb. 190. 27 Thus an action may be maintained against a foreign executor to compel the specific performance of a contract made by him to assign a judgment be- longing to the estate. (Johnson v. Wallis, 112 N. Y. 230.) § 519. Admustisteation of Estate, Etc. 410 ARTICLE SECOITD. § 519. Surrogate's general control. — In all matters relating to the estate, the surrogate granting letters testamentary or of ad- ministration has a general supervision and control of the executor or administrator. The Code expressly declares that he has juris- diction to direct and control the conduct, and settle the accounts, of executors, administrators, and testamentary trustees.^* His power over the last-named officers is shared by other courts of record, and is not so extensive as that possessed in respect to executors and administrators, though it has been much enlarged by the Code of Civil Procedure. ^^ It is not to be inferred, how- ever, that the surrogate has authority to control the conduct of executors or administrators relative to proceedings in other courts, affecting the estate, e. g., to prohibit an executor from contesting the payment of promissory notes, given by the testator, in an action at law brought thereon.^" l^or can he control their actions as to property which, as executors or administrators, they had no right to take possession of.^^ So he cannot compel an executor to treat a legacy as a charge tipon, and satisfy the same out of, the testator's real property, ^^ or compel an executor to exercise a power of sale given by the will,^^ or to set aside, for fraud, a sale of land made by an executor.^* And, in general, he cannot inter- fere with the representative, to control him while in the orderly discharge of his duties.^® Hence the discretion of executors con- 28 See Co. Civ. Proc, § 2472, subd. ing by one executor, who had exclu- 3; § 44, omte. sive possession of all the funds and 29 See Brown's Accounting, 16 Abb. property of the estate, his coexeeutor Pr. (N. S.) 457, and §§ 319, 449, omte. objected to the accounts and asked the 30 Matter of Parker, 1 Barb. Ch. 154. court to direct the accounting party 31 Calyer v. Calyer, 4 Redf . 305 ; to transfer to him so much of the holding that a surrogate has no juris- funds as would enable him to compen- diction to compel an administrator sate his counsel for their services in with the will annexed, to pay over to the contest. The application was de- the devisee rents from real estate de- nied for want of power. (Thompson vised to the latter for life, or to re- v. Mott, 1 Dem. 32.) See also Wal- strain the further collection of such ton v. Howard, 1 id. 103; Jenkins v. rents by the administrator. Jenkins, 1 Paige, 243. An order re- 32 Bevan v. Cooper, 72 N. Y. 317, quiring certain securities, held by ex- 328. ecutors, to be deposited in a trust 33 Peyser's Estate, 20 Daily Keg. No. company, to remain until the further 151. order of the surrogate — was held to 34 Matter of Valentine, 23 N. Y. be authorized under the Revised Stat- Supp. 289. utes, on proof of facts showing a per- 3BWood V. Brown, 34 N. Y. 337, siatent indisposition on the part of 343 ; Morse v. Tilden, 35 Misc. 560 ; such executors to comply with the law 72 N. Y, Supp. 30. Upon an account- concerning their official duties, and 411 Administration of Estate, Etc. § 520. f erred upon them by the will, to determine what part of the prin- cipal of the estate may be necessary to be applied to the support of the beneficiary, is subject to review by the surrogate to the extent, at least, of ascertaining whether it has been exercised honestly and in good faith; powers formerly exercised by courts of equity in this regard, are now possessed also by the surrogate. The surrogate is powerless, however, to overrule the decision of the trustee, except upon proof that he has abused his discretion or that his conduct has been inconsistent with the honest and faithful discharge of his duties; but not on the ground that he has reached an erroneous conclusion.^® An application by a trustee for instructions as to the manner of the execution of his trust is beyond the power of the surrogate to grant.^'' § 520. Disagreement between representatives It is obviously desirable that Surrogates' Courts should possess authority to direct the conduct of two or more executors or administrators where there is a disagreement between them as to the custody of money, or management of the estate. As the law formerly stood, it was doubtful if any such authority existed in either the Surrogate's Court or the Supreme Court; and it certainly did not, unless it clearly appeared that the interests of the beneficiaries were jeopar- dized by reason of the disagreement;^* or the application was made by a majority of such beneficiaries.^^ This defect is remedied by the present Code in a section *" which extends also to testamentary trustees and guardians, and provides that " where two or more co- executors or co-administrators disagree, respecting the custody of money or other property of the estate; or two or more testa- mentary trustees or guardians of the property disagree, respecting the custody of money or other property, belonging to a fund or an estate which is committed to their joint charge; the surrogate may, upon the application of either of them, or of a creditor or person interested in the estate, and proof, by affidavit, of the facts, showing danger as to the safety and ment was levied on its stockholders, preservation of the estate. And such On the application of its receiver, on order is not invalidated by containing the executor's accounting, the latter a provision that the deposit should was ordered to sell the stock to pay be for the individual shares or inter- the assessment. ests of the petitioners. (Matter of 37 Matter of Foster, 30 Misc. 573; Oilman, 41 Hun, 561.) 63 N. Y. Supp. 1102. See Crawford 36 Banning v. Gunn, 4 Dem. 337. v. Winston, 34 App. Div. 457; 54 N. See Merritt v. Corlies, 54 St. Rep. Y. Supp. 246. 215; 24 N. Y. Supp. 561. In Matter 38 Burt v. Burt, 41 K Y. 46. of Buel (23 id. 283), the testator 39 Quackenboss v. Southwiek, 41 N. directed the executor to hold certain Y. 117. bank stock in trust for a legatee. The 40 Co. Civ. Proc, § 2602. bank becoming insolvent, an assess- § 521. Admiwisteation of Estate, Etc. 412 make an order, requiring them to show cause, why the surrogate should not give directions in the premises. Upon the return of the order, the surrogate may, in his discretion, make an order, directing that any property of the estate or fund be deposited in a safe place, in the joint custody of the executors, administrators, guardians, or testamentary trustees, as the case requires, or sub- ject to their joint order; or that the money of the estate be de- posited in a specified safe, bank, or trust company, to their joint credit, and to be drawn out upon their joint order. Disobedience to such a direction may be punished as a contempt of the court." Inasmuch as each of two or more executors or administrators has full control of the assets, and may dispose of the same with- out the co-operation of his associate, the enjoyment of this right cannot be lawfully restrained by the surrogate, merely because of a disagreement between executors or administrators as to the time when, or the circumstances under which, such right can be most advantageously exercised.*^ ARTICLE THIED. THE estate op EXECUTORS, ADMHTISTRATOBS, AND TESTAMENTARY TRUSTEES. SUBDIVISIOIT 1. THE NATURE OF THE ESTATE. §521, Vesting of title, on owner's death — The effect of the death of an owner of property is to vest the title thereto at once in some other person. The property is never for one moment 41 Brennan v. Laue^ 4 Dem. 322 by requiring a joint custody of its ( s. c. as Estate of Brennan, 9 Civ. assets, — the fact that the excluded ex- Proc. Rep. 56 ) . Where there is eeutor would be deprived of commis- nothing in the will indicating that the sions if no services were rendered by testator reposed greater trust and con- him, and he was competent and will- fidence in one executor than in the ing to perform his full share of the other, and nothing tending to show duty confided by the will, while the that it would impair the security of acting executor would receive practi- the property of the estate to take it cally a double commission, was held from the sole custody of an executor to be a consideration making such who had first qualified and taken pos- joint custody desirable. (Chambers session of the entire estate, and place v. Cruikshank, 5 Dem. 414 [s. c. it in the joint custody of himself and as Matter of Delaplaine, 19 Abb. N. C. a subsequently qualifying associate 413].) Guion v. Underbill, 1 Dem. with whom he could meet without in- 302. As to granting one executor the convenience, whenever conference or right to inspect books and papers in combined action was necessary, and possession of his co-executor, see Mat- where it was not shown that the inter- ter of Stein, 33 Misc. 542 ; 68 N. Y. ests of the estate would be prejudiced Supp, 933. 413 Administration' of Estate, Etc. § 522. without an owner. The estate which an executor or administra- tor has in the goods of the deceased is not the absolute interest which every one has in his own property; nevertheless, for many purposes, the law treats the executor or administrator as the abso- lute owner, and, as such, capable of disposing of the goods of his decedent, as if they were his own. But, speaking generally, the estate of an executor or administrator, as such, is in autre droit, and the decedent's property in his possession, if distinguishable from his own, is not subject to his debts.*^ Hence, a general as- signment by an. executor of all his property, or a release of all actions and demands which he has for any cause whatever, does not extend to or embrace the property or demands which he holds as executor. § 522. Representative's qualified title. — As to the property which they hold in a representative capacity, executors and adminis- trators are, in equity, to be treated as trustees for the legatees or next of kin, and creditors.*'^ Hence, while, at law, the executor or administrator has absolute power to dispose of, or to pledge, the assets, and to give a valid title,** equity will always intervene in a case of fraud or misapplication, and will follow the assets or their proceeds into the hands of a purchaser affected with notice of their misapplication, and the trust will attach on the property.*^ As to personalty, an executor is a trustee of the per- 42 The statute declares that the real interest, and the sole legatee and de- property which belonged to any deee- visee becomes vested with the legal dent is not bound or in any way af- title of all the testator's estate, fected by any judgment against his (Thomas v. Troy City Nat. Bank, 19 executor or administrator, and is not Misc. 470; 44 N. Y. Supp. 1039; liable to be sold by virtue of any exe- Hauptmann v. First Nat. Bank, etc., cution issued upon such judgment, un- 83 Hun, 78; 31 N. Y. Supp. 364.) less the judgment is expressly made, Hence, such executor, on proof that by its terms, a lien upon specific all the debts of the testator have been real property therein described, or ex- jfeid, may avail himself of a demand, pressly directs the sale thereof. ( Co. due the estate as a counterclaim in an Civ. Proc, § 1823.) action against him. See Matter of 43 An executor, as such, takes un- Van Houten, 18 App. Div. 301 ; 46 qualified legal title of all personalty N. Y. Supp. 190. not specifically bequeathed, and a qual- 44Hunnier v. Rogers, -55 Barb. 85. ified legal title to that which is so *5 Sacia v. Berthoud, 17 Barb. 15 ; bequeathed. He holds as a trustee Cooper v. Weston, 16 St. Rep. 937; for the benefit ( 1 ) of the creditors of Cooper v. Illinois Cent. R. Co., 38 App. the testator, and (2) of those entitled Div. 22; 57 N. Y. Supp. 925; First to distribution. (Blood v. Kane, 130 Nat. Bank, etc. v. National, etc., N. Y. 514; 42 St. Rep. 549.) It was Bank, 156 N. Y. 459; Marshall v. De also held, in that case, that the trust Cordova, 26 App. Div. 615; 50 N. Y. estate of a sole executor, who is also Soipp. 294. See Matter of Holmes, sole legatee and devisee, is for the 37 App. Div. 15; 55 N. Y. Supp. 708; benefit of the testator's creditors, affd., 159 N. Y. 532; Van Vleck v. only; and when they are paid, the Enos, 88 Hun, 348; 34 K'. Y. Supp. trust estate merges in the beneficial 754; Isham v. Post, 71 Hun, 184; § 523. Administeation of Estate, Etc. 414 sons entitled to it, and the next of kin have always the right to file a bill to enforce the trust, even if the rights which they assert depend on the invalidity of the will under which the executor qualified.*^ So, an executor who purchases land with trust funds, when no such power is given him in the will, is, nevertheless, in- vested with the full legal title, though, between the executor and his beneficiaries, it is impressed with a trust which they can en- force ; and since the title does not come to him under the will, his want of power to mort-gage under that instrument does not apply, and a mortgage executed by him on the property is valid.*'' § 523. Merger of title — Notwithstanding the representative char- acter of an executor or administrator, the property held by him at first in that character may become his own to his own use, by in- termixing it with, so as to become indistinguishable from, his own property — e. g., money of the decedent deposited in bank, in com- mon account with his own funds.*^ Such moneys are subject to the executor's individual debts, and in case of the insolvency of the bank, the loss is his own and not that of the estate. So, at com- mon law, an executor who is a creditor of the deceased, or who pays the debts of the deceased with his own money, acquires and be- comes vested with the absolute ownership of the assets in his hands, to the extent of the debt owed to, or money paid by, him, — in the first case, the title vesting at his election, in the latter, by opera- tion of law.** This principle does not, however, warrant the con- revd., on other points, 141 N. Y. and nothing remained but to compel 100; Suarez v. Montigny, 1 App. the executor of the deceased trustee Div. 494; affd., 153 N. Y. 678. to pay the indebtedness of the estate Thus an executor or administrator to the distributees. (Graham v. De cannot make a valid sale or pledge of Witt, 3 Bradf. 186.) the assets, as a payment of or security *9 In Abell v. Bradner ( 39 St. Eep. for his own debt, since the very nature 5 ; 15 N. Y. Supp. 64 ) , an adminis- of the transaction implies notice to trator had purchased, at a foreclosure, the purchaser or mortgagee, of his property belonging to the estate, de- participation in the misapplication, daring that he did so in the interest (Sutherland v. Brush, 7 Johns. Ch. of himself and the heirs. Held, that 21; Field V. Schieflfelin, id. 153.) he had a right, in order to protect 46 Eead v. .Williams, 27 St. Rep. himself as a creditor of the estate, to 505; 8 N. Y. Supp. 24; affd., 125 retain the title until his just demands N. Y. 560. upon it were satisfied, and that his *^ McLean v. Ladd, 66 Hun, 341 ; accountability was limited to the fair 21 N. Y. Supp. 196. See Butler v. rental value of the property. See Walsh, 48 App. Div. 459; Roarty v. Livingston v. Newkirk, 3 Johns. Ch. McDermott, 146 N. Y. 296. 312. In Haberman v. Baker (128 48 Where the trustee, having mingled N. Y. 253 ) , upon the foreclosure of a the money with his own, without mak- mortgage belonging to the estate, the ing distinction, died; — Held, that mortgaged premises were bought in by there was no necessity for the ap- the administrator. Held, that the pointment of a new trustee, for the premises so acquired took on the char- trust fund had not been kept separate, acter of the mortgage indebtedness 415 Administeation of Estate, Etc. § 524. elusion that an executor or administrator can give himself a pref- erence over other creditors. Under the existing statute, he must include his liability in the accounting, and he makes any such appropriati'on meanwhile at his peril. ^'' § 524. Joint tenancy of representatives Every estate vested in two or more executors or administrators, as such, is held by them in joint tenancy.^^ They are to be considered as one person, and as having but one joint and entire estate in the property of the de- cedent. The death of either does not change the quality of the estate ; the survivor is vested with the interest of his deceased companion. Therefore, the acts of any one of them relating to the management and disposition of the assets are to be deemed the acts of all.^^ Thus, two executors, against the will of their co- executor, may compromise, and release a mortgage or other debt of the estate.^* But where the will requires an act to be done by the executors jointly, the death of one of them prevents perform- ance.^* Where two executors or administrators take an obliga- tion to themselves jointly as representatives of their decedent, for a debt belonging to his estate, one of them can receive payment and lawfully discharge the obligation. ^^ Two or more qualifying testa- mentary trustees cannot, like executors, act separately, but all must join in receipts and conveyances. A deed by two, while a third, who is qualified to act, is living, is not valid.®® But when the founder of the trust expressly authorizes a majority to act and to execute their acts, their execution of the duties of the trust, in good faith, is valid and effectual.®^ If one or more of the exec- utors, on whom is conferred a power of sale, fail to take upon him and were to be regarded as personalty 52: Murray v. Blatchford, 1 Wend, which the administrator could dis- 583; Jackson v. Robinson, 4 id. 436 pose of and must account for as per- Stuyvesant v. Hall, 2 Barb. Ch. 151 sonalty. To pass a good title it was Douglass v. Satterlee, 11 Johns. 16, not necessary that the heirs of the de- Gardner v. Miller, 19 id. 188; Bren- cedent nor his residuary devisee should nan v. Lane, 4 Dem. 322, and cases join in the administrator's convey- cited. ance, and this, although the decedent ssMutray v. Blatchford, 1 Wend, had, as mortgagee, taken possession 583. Compare Wheeler v. Wheeler, 9 of the premises in his lifetime in order Cow. 34; Stuyvesant v. Hall, 2 Barb, to satisfy the mortgage debt out of Ch. 151. the property mortgaged, but had not 54 Harriott v. Prince, 87 Hun, 95; held it long enough to gain a title by 33 N. Y. Supp. 970 ; affd., 155 N. Y. 5. adverse possession. 55 People v. Keyser, 28 N. Y. 226. 50 See Co. Civ. Proc, § 2719 (former 56 Ridgeley v. Johnson, 11 Barb. § 2739). 527; Earle v. McGoldrick, 15 Misc. 51 1 R. S. 727, § 44; L. 1896, c. 547, 135; 36 N. Y. Supp. 803; Egbert v. §§ 56, 146, 154. See Davis v. Kerr, McGuire, 36 Misc. 245; Wilder v. Ran- 3 App. Div. 322; 38 N. Y. Supp. 387. ney, 95 N. Y. 7, and cases cited. 52 Wheeler v. Wheeler, 9 Cow. 34; 57 Crane v. Decker, 22 Hun, 452, Bogert V. Hertell, 4 Hill, 492; 9 Paige, See House v. Raymond, 3 id. 44. § 525. Administeation of Estate, Etc. 416 the execution of the ■will, then any sale made by those who take upon themselves the execution thereof is valid, as if the others had joined.^* This is merely declaratory of the common law.*® The statute applies as well to the case of a mere power of sale, or where there is a discretion given to the executors to determine whether the land shall he sold or not, as to the case of a positive order that the land be sold.®** The refusal of one of the executors to act may be proved like any other matter in pais; a renunciation is not neces- sary.^^ §525. Suits between co-executors, etc As two or more repre- sentatives are joint tenants, each having the same right to the pos- session of the fund, it follows that, at law, one executor or admin- istrator cannot sue his co-executor or administrator, to recover a debt due from the latter to the testator or intestate. It is other- wise in equity, where such an indebtedness can be ascertained, and such disposition of the fund made as justice and equity re- quire.®^ Hence, in a case where a mortgagor, being appointed one of the executors of the will of the mortgagee, accepts the trust and qualifies, his co-executor having accepted and qualified, may pro- ceed to revive the suit against the mortgagor co-executor.®^ But one executor cannot maintain an action against his co-executor to compel the latter to place the securities and papers of the estate in his possession in the custody of a bank, or that both he and the plaintiff deposit all moneys thereafter collected therein, to be drawn out only on their joint check ; and it is no ground for such an action that the defendant maintains exclusive manual possession of the securities belonging to the estate, and refuses to deliver over any portion thereof to the custody of his co-exectitor, it not ap- 88 2 Rev. Stat. 109, § 55; Sullivan sumed to accept the trust estate; but V. Fosdick, 10 Hun, 181; Barber v. he cannot be vested with it against Barber, 17 id. 73. his will. Where it was in writing, 59 Davoue v. Fanning, 2 Johns. Ch. and acknowledged so as to be received 252 ; Ogden v. Smith, 2 Paige, 195 ; in evidence without further proof, it Niles V. Stevens, 4 Den. 399 ; Bunner was held sufficient. ( Burritt v. Silli- V. Storm, 1 Sandf. Ch. 357; Conover v. man. 13 N. Y. 93.) Hoffman, 1 Bosw. 214. 62 Rogers v. McGuire, 75 Hun, 133; 60 Taylor v. Morris, 1 N. Y. 341; 27 N. Y. Supp. 276. Leggett V. Hunter, 19 id. 445. 63 McGregor v. McGregor, 35 N. Y. 61 Roseboom v. Mosher, 2 Den. 61. 218. And see Decker v. Miller, 2 And see Sharp v. Pratt, 15 Wend. 610; Paige, 150; Smith v. Lawrence, 11 id. Matter of Stevenson, 3 Paige, 420. 206; Wurts v. Jenkins, 11 Barb. 546. The renunciation or disclaimer of a As to a suit by one executor against devisee in trust need not be in such another, who is a surviving partner of form as to pass an estate in the prop- decedent, for an accounting, see Simp- erty devised. In the absence of proof son v. Simpson, 44 App. Div. 492. to the contrary, such devisee is pre- 417 Administration of Estate, Etc. §§ 52-6, 527. pearing that the interests of the beneficiaries under the will are jeoparded by such exclusive possession.^ § 526. Survivorship In case of the death of one of several ex- ecutors, the surviving executor and trustee, or a surviving admin- istrator, has the right to the exclusive possession of the property.®^ It is not unusual for a will to confer upon the survivor of two or more executors or trustees the power of appointing a successor. In such a case, it is not imperative that such appointment should be made, and if none is made, the trust may be carried out by the survivor alone.^^ § 527. Substituted trustees. — Where all the trustees decline the trust, or die, or are removed, the trust is not defeated, nor the title to the real property ^ffected,®^ but the execution of the trust devolves upon the court, which may appoint others in their place,^* and the trust estate vests in the appointees, as fully as if they had been originally named in the will.®® It is well settled that the court has power to clothe the substi- tuted trustee with all the powers of the one superseded by death or removal.™ A trust, conferred upon the executor or " whoever shall execute this my will " is not a personal trust, or confidence, but can be exercised by any person lawfully appointed to execute the will.'^^ A trustee cannot continue the trust after his death by will, whether the trust be of real or personal estate.''^ The old rule that a trust of personal property, upon the death of the trustee, de- volved upon his personal representatives, is now abrogated by stat- 64 Burt T. Burt, 41 N. Y. 46, limit- 69 See Myers v. McCullagh, 63 App. ing Wood V. Brown, 34 id. 337. And Div. 321. Provision is made by stat- see Quackenboss v. Southwiek (41 id. ute (Co. Civ. Proc, § 2814) for the 117) as to the remedy in such a case resignation of trustees upon petition. cf the beneficiaries under the will. Independently of the statute, the court But now, the Code expressly confers has no power, upon a, mere petition, upon the Surrogate's Court ample to discharge a trustee without consent power to interfere in such cases. ( See of all parties. ( Matter of Van Wyck, § 520, ante.) 1 Barb. Ch. 565; Shepherd v. McEvers, 65 Shook V. Shook, 19 Barb. 653; 4 Johns. Ch. 136; Cruger v. Halliday, House V. Raymond, 3 Hun, 44; Davis 11 Paige, 314.) As to the power to V. Kerr, 3 App. Div. 322 ; 38 N. Y. remove a trustee on good cause shown, Supp. 387. and to substitute another in his stead, 66 Belmont v. O'Brien, 12 N. Y. 394. see §§ 449-455, ante. 67 See Paget v. Stevens, 143 N. Y. TOLeggett v. Hunter, 19 N. Y. 445; 172; 62 St. Eep. 193. Ross v. Roberts, 2 Hun, 90. 68 King V. Donnelly, 5 Paige, 46; 71 Royee v. Adams, 123 N. Y. 402; De Peyster v. Clendining, 8 id. 295; 33 St. Rep. 622. As to the powers McCosker v. Brady, 1 Barb. Ch. 329; and duties of an administrator with Quackenboss v. Southwiek, 41 N. Y. the will annexed, see § 334, ante. 117. See Co. Civ. Proc, § 2818; 72 Fonda v. Penfleld, 56 Barb. 503. §§ 322, 454, ante. 27 § 528. Administeation of Estate, Etc. 418 lite. All unexecuted express trusts now vest in the Supreme Court.^* In respect to real property, inasmucli as a power to sell lands, conferred upon executors, is derived from the will and not the probate, it was always doubtful whether, in any case, a power re- lating to realty would pass to an administrator with the will an- nexed. It is true that the statute confers, upon administrators with the will annexed, " the same duties, rights, and powers as if they had been named executors in the will ;" ^* but the weight of au- thority is in favor of the view that the statute has reference only to personalty,''^ and is not applicable to realty or to a discretionary power, or to a gift in trust, or to a power inseparably connected therewith.''* SUBDIVISIOl^ 2. THE QTTANTITT OF THE ESTATE. § 528. In general — The whole personal estate of the deceased, both at law and in equity, including debts, accounts, things in ac- tion, and every species of personal property, not expressly ex- cepted by the statute, vests in the executor or administrator. He alone is entitled to represent the deceased in respect of his per- sonal property," and he has the same right to the possession of the estate as the decedent would have, if living, and the same remedies for its recovery and protection.''^ On the other hand, it may be stated, as a general rule, that all rights in the real estate are represented solely by the heir or dev- isee, who alone can sue in respect of injuries done to it. There 73 L. 1882, c. 185; L. 1897, e. 417, cute the trust power under the will. § 8, as amended by L. 1902, e. 150; For a case where an imperative power L. 1896, u. 547, § 91, as amended by of sale was held properly exercised by L. 1902, c. 151. For former rule, see an administrator c. t. a., see Clifford Bunn V. Vaughan, 1 Abb. Ct. App. v. Morrell, 22 App. Div. 470. See Dec. 253 ; 3 Keyes, 345. See Brink v. § 335, OMte. Layton, 2 Redf. 79 ; Robinson v. 77 While it is true that the appoint- Sohmitt, 17 App. Div. 628; 45 N. Y. ment of an executor vests in him all Siipp. 253. the personal estate of the testator, yet 74 2 R. S., 72, § 22. if it can be collected, from any oir- 75 Conklin v. Egerton, 21 Wend. 430. cumstance or expression in the will, 78 Dominick v. Michael, 4 Sandf. that the testator intended his execu- 374; Dunning v. Ocean Nat. Bank, 61 tor to have only the office, and not the N. Y. 497; Beekman v. Bonsor, 23 id. beneficial interest, equity will give 298; Roome v. Philips, 27 id. 357; effect to such an intention, and the though, in the latter case, Davies, J., executor will be deemed a trustee for said, that if the question were new, he those on whom the law would have should say the statute applied to real cast the surplus, in ease of a complete property. The trust, in such a case, intestacy. (See Story's Eq. Jur., devolves upon the Supreme Court, § 1208.) which will appoint a trustee to exe- Tspatchen v. Wilson, 4 Hill, 57. 419 Administbation of Estate, Etc. § 529. are two classes of representatives therefore: personal representa- tives, — that is, executors or administrators ; and real representa- tives, — that is, the heir or devisee. By the use of the term " rep- resentative," it is not meant to imply that a man, regarded as an individual, and apart from his rights in and to property, con- tinues his existence by representation. By death, all the accrued rights of an individual as such are extinguished ; and strictly per- sonal causes of action, as for attacks upon his life, his liberty, or his reputation, do not survive him, even though suit has been commenced on them; and actions against him for the like causes perish in like manner, according to the maxim, actio personalis moritur cum persona.''^ § 529. What are assets to be accounted for We had occasion, in connection with the subject of the inventory and appraisal of the estate, to give the statutory enumeration of the classes of arti- cles which ought to be inventoried, but reserved, for subsequent consideration, the subject of what are assets for which an execu- tor or administrator is accountable, so far, at least, as the adjudi- cations of our own courts have settled the principles involved. Personal property may be either in possession, that is, where the deceased had not only the right to enjoy, but also the actual en- joyment; or in action, — that is, where he had not the occupation, but merely a right to occupy the thing in question, the possession whereof may, however, be recovered by action; from whence the thing so recoverable is called a thing or chose in action.®* The executor or administrator may enter upon premises de- scended to the heir, for the purpose of removing the goods, and it is his duty to acquire possession of such books of account and title deeds or papers of the deceased as will inform him of the nature and amount of the estate.*^ In an accurate and legal sense, ra Executors and administrators rep- that deceased at times made incidental resent, in all matters in which the per- statements that the increase of the sonal estate is concerned, the person of farm belonged to her husband, was not the testator or intestate, as the heir sufficient to overcome the presumption does that of the ancestor. (Lee v. that the property remained hers, and Dill, 39 Barb. 516; disapproving that her administrator should include McCray v. McCray, 12 Abb. Pr. 1.) such personal property in his inven- For the meaning of the term "legal tory. (Matter of Wheeler, 28 St. Rep. representatives," as used in the Stat- 638; 8 N. Y. Supp. 385.) Moneys ute of Distribution, see post, tit. 8, contributed by the heirs to produce an of this chapter. annuity given by the will, are not to 80 Wms. on Exrs. ( 6th Am. ed. ) be accounted for by the executor. 862. (Matter of Collins, 144 N. Y. 522; 64 81 Prior to the marriage of deceased St. Rep. 48.) Nor are securities, she owned a farm and the personal given by testator in his lifetime to property thereon. Held, that evidence one named as executor in his will, to 529. Administration of Estate, Etc. 420 all the personal property of the deceased, which is of a salable nature, and may be converted into ready money, is deemed assets ; but, in a larger sense, all the property of the deceased which is chargeable with his debts or legacies, and is applicable to that purpose, is to be deemed assets. Where a question arises, as to whether certain effects are assets of the estate, or are the individual property of the representative, the latter may, by his own acts, be concluded from claiming them.®^ Personal property of a nonresident testator may vest in the execu- tor, under a will which would be void if the former had resided here.*^ distribute the proceeds thereof. (Mat- ter of Cooper, 6 Misc. 501; 27 N. Y. Supp. 425.) But where, in such ease, specified amounts are to be paid out of the proceeds, the surplus, if any, must be accounted for. (Bliss v. FoB- dick, 76 Hun, 508; 27 N. Y. Supp. 1053.) Evidence that the intestate gave to his wife money with which to purchase furniture, which she did, without further evidence tending to show a gift, either of the money or furniture, to her as her separate prop- erty, is not enough to exonerate her from accounting for it as administra- trix. (Matter of Ward, 2 Redf. 251; S. P., Matter of James, 78 Hun, 121; 28 N. Y. Supp. 992; affd., 146 N. Y. 78.) The mere handing of property, by the alleged donee thereof, to the executor on his claim that it should be inventoried, without any intent to make a gift thereof to the estate, does not work a transfer of title so as to make it assets. (Van Slooten v. Wheeler, 70 Hun, 55; 27 N. Y. Supp. 666; revd., on another point, 145 N. Y. 327. ) And see Gannon v. McGuire, 160 id. 476; Matter of Farmers' L. & T. Co., 47 App. Div. 448. 82Garvey v. McCue, 3 Eedf. 313; revd. on another point, 14 Hun, 562. In that case, one who, having received letters of administration upon the es- tate of his wife, swore that she left an estate, and filed his account, in which certain moneys were returned as constituting the whole estate, was held estopped, as against a creditor of the estate, from claiming the moneys as his own individual property. See Butler V. Weeks, 12 Misc. 192; 33 N. Y. Supp. 1090; Borland v. Borland, 59 App. Div. 37 ; 69 N. Y. Supp. 179. ssDespard v. Churchill, 53 N. Y. 192. In that case, a resident of Cali- fornia dying seized of certain lease- hold estates for years, in lands situ- ated in this State, left a last will and testament, void, in its material provisions, under the statutes of this State, but valid by the laws of Cali- fornia. A portion of the executors named in the will were residents of this State, and these were charged with the care and administration of the property here. Held, that the leasehold estates were to be treated as personalty, and to be governed by the law of the testator's domicile; but that the courts of this State would not aid in carrying out here bequests contrary to its statute laws, and that the assets here, after paying there- from certain legacies, valid under the laws of this State, and directed to be paid by the executors here, should be remitted to California, to be there dis- tributed. To the same effect, Simon- son V. Waller, 9 App. Div. 503. Foreign assets. — Personal property has no status or locality, except as it follows the owner's person; and wherever situate, the representa- tive is the proper person to collect and receive it. Hence, assets belong- ing to a deceased resident, situated in another State, must be included in the inventory of the assets filed by his executor, to whom letters testament- ary are issued here, unless an execu- tor has been appointed in the foreign State. (Sherman v. Page, 85 N. Y. 123.) It is not sufficient for the ap- praisers to include only such property as " shall be exhibited to them," but all the property of which they have any knowledge should be included. (Matter of Butler, 38 N. Y. 397.) Where a policy of insurance issued by a New York company, to a resident of another State, was at the time of the 421 Abministeation of Estate, Etc. §530. Tlie complicated questions growing out of the doctrine of equi- table conversion cannot be considered here;** nor is it necessary to enlarge upon the subject of the different kinds of chattels, real and personal, which is fully treated in standard works of author- ity.«^ § 530. Real property — With respect to the real estate, unless it is devised to the executor upon an express trust, the heir or de- visee is the only person who has the right to its possession and enjoyment, except where it may be required to satisfy the debts of the deceased.*® The same is true of an interest in a contract for the purchase of lands by the decedent.*^ Such an interest de- scends to the heirs of the purchaser,** and the purchase-money passes to the executor of the vendor as part of the assets.*^ insured's death, and had since been, in it foreign jurisdiction in the posses- sion of the insured or of his adminis- trator, — Held, that a public adminis- trator in this State, never having ob- tained the title to the policy, or a right to its possession, could not enforce its payment. (Morrison v. Mut. L. Ins. Co., 57 Hun, 97; 32 St. Rep. 846.) See Holyoke v. Mutual Ins. Co., 22 Hun, 75; affd., 84 N. Y. 648; Siilz v. Mutual Reserve, etc., Assn., 145 id. 563; Simonson v. Waller, 9 App. Div. 503. 84 On this 'Subject see § 269, n. 33, ante, and in addition to the cases there cited, the following: Hatch v. Bas- sett, 52 N. Y. 359; Ross v. Roberts, 63 id. 652; aflfg., 2 Hun, 90; Gourley V. Campbell, 66 N. Y. 169; Fisher v. Banta, id. 468; Newell v. Nichols, 75 id. 78; affg., 12 Hun, 604; Betts v. Betts, 4 Abb. N. C. 317; Barnes v. Hathaway, 66 Barb. 452 ; Sage v. Lock- man, 53 How. 276; Power v. Cassidy, 54 id. 4 ; Gano v. McCunn, 56 id. 337 ; Shumway v. Harmon, 4 Hun, 411 ; Graham v. Livingston, 7 id. 11 ; Kelly V. Hoey, 35 App. Div. 273; Doane v. Mercantile Trust Co., 160 N. Y. 494; Hope V. Brewer, 136 id. 126; Matter of Tatum, 169 id. 514; Miller v. Gil- bert, 144 id. 68; Matter of Young, 145 id. 535; Salisbury v. Slade, 160 id. 278 ; McDonald v. O'Hara, 144 id. 566 ; Thompson v. Hart, 58 App. Div. 439 ; Mansbach v. New, id. 191; affd., 170 N. Y. 585 ; Merritt v. Merritt, 32 App. Div. 442; affd., 161 N. Y. 634; Mat- ter of Hosford, 27 App. Div. 427; Mutual L. Ins. Co. v. Bailey, 19 id. 204; Baker v. Baker, 18 id. 189; 157 N. Y. 671; Matthews v. Studley, 17 App. Div. 303. 85 See Wms. on Exrs. (6th Am. ed.) 746-817; 3 Redf. on Wills, 351. 86 See Matter of Tompkins, 154 N. Y. 634; Butler v. Townsend, 84 Hun, 100; 31 N. Y. Supp. 1094; Graver v. Jermain, 17 Misc. 244 ; 40 N. Y. Supp. 1056. The heir has a, property in the monuments of his ancestors, but not in their ashes. (Matter of Brick Presbjrterian Church, 3 Edw. 155.) On the death of a tenant pour autre vie, the estate becomes a chattel real, and goes to the personal representa- tive. (1 R. S. 722, § 62; id., 82, § 6; Reynolds v. Collin, 3 Hill, 441.) An equitable estate of the wife for the life of the husband belongs, on her death, to her administrators, and, therefore, goes to her husband with- out administration. ( Norton v. Norton, 2 Sandf. 296.) Where a will confers a power of sale on the executor and gives the proceeds to persons named therein, the executor takes no title to the real estate and cannot maintain ejectment. (Smith v. Chase, 90 Hun, 99; 35 N. Y. Supp. 615.) 87 See § 492, ante. 88 If, however, the administrator of the purchaser receives rents for such land accruing after the death of the intestate, he must account for them, as well as for the sum realized by him upon a sale of his intestate's interest in the land. (Griffith v. Beecher, 10 Barb. 432.) 89 See Williams v. Haddock, 145 N. Y. 144; 64 St. Rep. 564. § 530. ADMiNisTEATioi«r OF EsTATE, Etc. 422 An administrator, as such, has no authority or control over the real estate of his intestate, and owes no duty to the heirs.®" He is not, therefore, precluded from purchasing such real estate, upon a foreclosure sale, in his own right.*^ Where real estate, of which the decedent died seized, is incum- bered by a mortgage which is foreclosed after his death, and the land is sold, any surplus arising on the sale is to be regarded as realty, and goes to the heirs or devisees, not to an administrator, although the mortgage provides that the surplus shall be paid to the mortgagor, his executors or administrators f^ and the same is true as to proceeds of lands sold in partition.®^ But land bought in by executors, on a foreclosure of a mortgage belonging to the estate, is to be treated as personal property,®* and a Surrogate's Court has jurisdiction to direct an accounting in respect thereto, where the administrator, through a mesne conveyance', has ac- quired title in his individual name. It is not necessary to first proceed in equity for the imposition and declaration of a trust.®^ The payment, by an administrator, of debts secured by mort- gage upon the decedent's real estate, is unauthorized ; but where this was done to prevent an anticipated foreclosure and the ex- pense thereof, it having become apparent that the equity of re- demption would have to be sold, by order of the surrogate, to pay debts, it was held that the items might properly appear among the administrator's credits, since, presumptively, the land brought as much more at the sale, as the amount paid in discharge of the debt, and the amount was properly allowed, out of the proceeds, on the principle of subrogation.*® On the same principle of subrogation, where the only property of the estate was certain land which the administrator redeemed from a sale for unpaid taxes, the amount of such payments may be allowed him as a preferred claim.®'' 90 Hollingsworth v. Spaulding, 54 statute being designed merely to pro- N. Y. 636 ; Hillman v. Stephens, 16 vide for the application of the sur- id. 278; Brevoort v. M'Jimsey, 1 Edw. plus to the payment of debts, if re- 551 ; Griffith v. Beecher, 10 Barb. 432 ; quired for that purpose, and not other- Matter of Woodworth, 5 Dem. 156. wise affecting the rights of heirs or 91 Hollingsworth v. Spaulding, su- devisees. (lb.) pra ; Matter of Monroe, 142 N. Y. 484 ; 93 Matter of Gedney, 33 Misc. 160 ; GO St. Rep. 102. 68 N. Y. Supp. 627. 92 Dunning v. Ocean Nat. Bank, 61 94Loekman v. Reilly, 95 N. Y. 64; N. Y. 497. This rule was not changed Yonkers Sav. Bank v. Kinsley, 78 by the provisions of the act (L. 1867, Hun, 186; 28 N. Y. Supp. 186. c. 658; revised in Co. Civ. Proc, 95 Matter of Gilbert, 39 Hun, 61. §§ 2798, 2799), which requires such 96 Stilwell v. Melrose, 15 Hun, 378. surplus to be paid to the surrogate, See § 523, note 49, ante. to be disposed of, on the application 97 Jones v. Le Baron, 3 Dem. 37 ; 6 of an executor or administrator, that Civ. Proc. Rep. 62. 423 Administbation of Estate, Etc. § 531. § 531. Land regarded as money, and money as land. — A devise of realty to an executor, in trust to sell, will, of course, vest the title in him.®* And as equity will consider as actually done that which ought to be done, land is, under some circumstances, re- garded as money, and money as land — as where the will directs that the land shall be sold, or that money shall be laid out in land. A devise directing lands to be sold and the proceeds to be divided, etc., is, therefore, a disposition of money and not of land, and is good, as a power to the executors to sell, although they are not ex- pressly named as the donees of the power. In selling under such a power, the executor acts in his character as such, and not as trus- tee,** and is accountable, in the Surrogate's Court, for the proceeds of any sale made by him, as he is also for the rents and profits.^ A mere authority to executors to sell real estate in a certain con- tingency and divide the proceeds among certain specified persons, does not, however, vest the estate in the executors. It is simply a power, and the land passes at once to the devisees, subject only to the execution of the power.^ So where the will devises lands, and, by a subsequent clause, gives power to the executors to sell the same for a minimum sum and invest the proceeds for the benefit 88 Glaciua v. Fogel, 88 N. Y. 434. the purchase of real estate, the surro- 99Meakings v. Cromwell, 5 N. Y. gate may treat the land as personalty 136. and compel him to account therefor. iCo. Civ. Proe., § 2726, subd. 4, as (Matter of Leonhard, 86 Hun, 289; amended 1893. See Clark v. Clark, 8 33 N. Y. Supp. 302.) Paige, 152 ; Stagg v. Jackson, 1 N. Y. 2 Scott v. Monell, 1 Eedf . 431 ; Mat- 206; Bloodgood v. Bruen, 2 Bradf. 8; ter of Johnson, 32 App. Div. 634; 52 Matter o£ Collins, 70 Hun, 273; 24 N. Y. Supp. 1081; Braunsdorf v. N. Y. Supp. 226; afifd., 144 N. Y. Braunsdorf, 23 id. 722; Matter of 522. As to proceeds of realty in Collins, 144 N. Y. 522; 64 St. another State, see Peck v. Mead, 2 Rep. 48. Compare Be Vandervoort, 1 Wend. 470; Mead v. Merritt, 2 Paige, Eedf. 270. In Vernon v. Vernon (53 402. An opinion was intimated in N. Y. 351), the testator gave to his Bolton V. Jones (6 Robt. 166, 228), wife an annuity, to be paid by the that a trustee, named as such and also executors out of his share in the rents as executor, might execute a naked of certain stores of which he was part power as to real estate, without owner, and, if they proved insufficient, qualifying as executor. No allusion then from the interest of other prop- was made to the statute forbidding an erty. The executors were also, au- executor's interference with the estate thorized to sell the stores at a mini- before letters granted. The case has mum price stated. Held, that the been distinctly overruled, on another power to receive rents and profits was point (Bolton v. Schriever, 135 N. Y. necessarily implied from the duty en- 75), and discredited, on this point joined, to apply them; that the exec- ( Humbert v. Wurster, 22 Hun, 405; utors took, as trustees, the legal title Clapp V. Brown, 4 Eedf. 200.) See during the life of the wife, for the Newton v. Bronson, 13 N. Y. 587; purpose of the trust, and — there Judson V. Gibbons, 5 Wend. 224; being no residuary clause in the will Doolittle V. Lewis, 7 Johns. Ch. 48. — ^that the lands descended to the Where an executor, without authority, testator's heirs, upon his death, sub- invests estate funds with his own in ject to the trust estate. § 532. Administeation of Estate, Etc. 424 of the devisee during life, the executors take no title, but the dev- isee takes a fee, subject to the execution of the power of sale.* A power in executors to sell lands will not be implied from the fact that the lands are charged with the payment of debts.* But the proceeds of lands sold by an executor, even under a discre- tionary power of sale, although such sale was not necessary for the execution of the trust at the time it was made, may be regarded as assets in his hands, and applicable, when there is a deficiency of assets, to the payment of his own claim, established against the estate upon the judicial settlement of his account.^ § 532. Rents, etc., of real estate — ^Rent reserved to the deceased, in a lease, accrued at his death, may be recovered by the executor or administrator.® But having no interest in the land, he cannot bring ejectment for condition broken.'' The statute * also gives the executors or administrators the same remedy as the decedent had for the arrears of rent. But this statute is not applicable to the case of an action by husband and wife for rent of the wife's estate, payable to both, where the husband dies pending the suit. In such case, the cause of action survived to her.® Where the will directs the sale of land by the executors, after a period named, it effects a conversion from that time, and the ex- ecutors are thereafter entitled to the rents.^* But before execution of the power, they have no authority to collect the rents and profits ; if they do so collect, they are accountable therefor, in the interest of the beneficiaries, and the insertion of the item in their account is properly made.-'^ A gift for life of rents and income of real estate creates an 3 Vernon v. Vernon, supra. See (Priester v. Hohloeh, 70 App. Div. Metzger v. Rankine, 69 App. Div. 264; 256; 75 N. Y. Supp. 405.) 74 N. Y. Supp. 649. 7 Van Rensselaer v. Jones, 5 Den. * Matter of Fox, 52 N. Y. 530. 449. 5 Matter of Powers, 124 N. Y. 361; 8 1 R. S. 747, § 21. O'Flyn V. Powers, 21 N. Y. Supp. 905; 9 Jacques v. Short, 20 Barb. 269. affd., 136 N. Y. 412. lO Shumway v. Harmon, 4 Hun, 411. 6 Co. Civ. Proc, § 2712, as amended See Smith v. A. D. Farmer, etc., Co., 1893j §§ 489, 492, ante. As to the ap- 16 App. Div. 438; 45 N. Y. Supp. 192. portionment of rents, under L. 1875, e. n Matter of Boyd, 4 Redf. 154. A 542 ( Co. Civ. Proc, § 2720, as amended general devise to executors to sell and 1893), see § 492, cmte. See also, L. distribute, in a specified way, the pro- 1896, c. 547, § 192. The products of ceeds of real estate, does not convert decedent's farm, worked on shares, it into personalty, so as to make them which accrue after his death, do not accountable for such as has not been constitute rent and are payable to the sold, as personalty, upon their final administrator. (Matter of Strickland, accounting, and, if a sale is not made 10 Misc. 486; 32 N. Y. Supp. 171.) within a proper time, the remedy is by See Matter of Foulds, 35 Mise. 171; application to the court to compel it. 71 N. Y. Supp. 473. Rent accruing (Matter of Hunter, 3 Redf. 175.) after testator's death goes to the heir. 425 Administration of Estate, Etc. § 533. estate therein, and if no duties are charged upon executors with respect to their application, no estate or trust is created in them in respect thereto.^^ § 533. Property in joint tenancy ; partnership assets — In regard to joint property, or property which the decedent held jointly with another, the general rule is that the surviving joint tenant, and not the executor or administrator of the deceased joint tenant, takes * it.i* But the law merchant makes an exception to this rule, in favor of the joint or partnership property of merchants and traders, and those engaged in undertakings in the nature of trade. Such prop- erty does not go to the survivor, but the share of the deceased partner goes to his executor or administrator.^* The surviving partner has power to settle the partnership concern with the repre- sentative, and the latter is responsible, in respect to the assets of the firm, only for the interest of the decedent in the surplus of the firm assets, after the settlement of the partnership ac- counts ;^'^ and is not accountable for more than he received, unless error or fraud be shown. If he has made a voluntary settlement with the surviving partner, upon a statement of the partnership accounts, and received the amount found due to the decedent ac- cording to that statement, and there is nothing to show that he ought to have engaged in litigation to secure a settlement, the va- lidity of the settlement may be sustained.-'^ 12 Matter of Blauvelt, 131 N. Y. ter of Hoagland, 51 App. Div. 347; 249; Macy v. Sawyer, 66 How. Pr. aflfd., 164 N. Y. 573.) The several 381 ; Matter of Blow, 2 Connoly, 360 ; owners of a vessel are tenants in corn- Matter of GoetscHus, 2 Misc. 278 ; mon, and must join or be joined in James v. Beesly, 4 Redf. 236; Carman actions by or against them. If joined V. Brown, 4 Dem. 96 ; Matter of Grant, as defendants, and the death of one 86 Hun, 617; 33 N. Y. Supp. 193; of them occurs, his executor or per- affd., 152 N. Y. 654. An equitable sonal representative cannot be joined estate of a wife, for the life of her with the survivors. The executor is husband, is, on her death, assets, charged de honis testatoris, the sur- ( Norton v. Norton, 2 Sandf. 296.) vivors de ionis propriis, and thejudg- 13 Personal property owned jointly ment could not be thus rendered, by husband and wife, e. g., a bond and (Wright v. Marshall, 3 Daly, 331.) mortgage, at the death of one belongs 15 Thomson v. Thomson, 1 Bradf. 24. to the survivor, and forms no part of l« Sage v. Woodin, 66 N. Y. 578 ; the estate of the deceased. (Matter Montgomery v. Dunning, 2 Bradf. 220. of Albrecht, 32 St. Rep. 193.) See Where the surviving partner is also Matter of Meehan, 59 App. Div. 156; the executor or administrator of the 69 N. Y. Supp. 9 (joint deposit). deceased partner, a statement of the 14 See Egberts v. Wood, 3 Paige, partnership affairs is incidental to 517; Wilder v. Keeler, id. 166; Mat- the settlement of the accounts of the ter of Wormser, 51 App. Div. 441 ; 64 executor or administrator, and, in a N. Y. Supp. 897. Whether property case of final accounting, is absolutely is a partnership asset is a question of necessary. (Marre v. Ginochio, 2 the intention of the partners. (Mat- Bradf. 165.) See Simpson v. Simp- 533. Administeation of Estate, Etc. 426 The surviving partner is entitled to the exclusive possession and management of the firm assets, for the purpose of selling and clos- ing out the same, and is not required to file the books, to enable the next of kin to ascertain the interest of the decedent.-'^ He may, therefore, either with or without the consent of the representa- tive of the deceased partner, make a general assignment for the benefit of the creditors of the business.^* Where a surviving part- ner dies, his executor takes the legal title to the partnership prop- erty for the purpose of settling his estate, but does not succeed him as surviving partner.-^® On the other hand, real property of the partnership retains its character as realty between a surviving partner and the real and personal representatives! of a deceased partner, except that each share is impressed with a trust implied by law in favor of the other partner, that, so far as is necessary, it shall be ^rst applied to the adjustment of partnership obligations and the payment of son, 44 App. Div. 492 ; 60 N. Y. Supp. 879. The books of the firm and the balance sheet, showing the amount due the estate, are evidence against him on his accounting. And if he claims that any deduction shall be made with reference to the uncertain value of the assets, the burden is upon him to show what corrections, if any, are to be made. (Matter of Saltus, 3 Abb. Ct. App. Dec. 243.) See Mat- ter of Ver Valen, 24 N. Y. Supp. 133. As to the liability of the general estate for debts incurred by the repre- sentative in continuing decedent's business, see Willis v. Sharp, 113 N. Y. 586; 43 Hun, 434; s. c, 115 N. Y. 396 ; and tit. 5, art. 2 of this chapter, post. 17 Waring v. Waring, 1 Redf. 205; Camp v. Fraser, 4 Dem. 212. He is a trustee for the purpose of liquidation; and if he continues the business, and uses the assets of the old firm, he com- mits a breach of trust and misappro- priates property upon which a lien has been impressed for the security of the representatives of the deceased part- ner. (Hooley v. Gieve, 9 Abb. N. C. 11.) See Thomson v. Thomson, 1 Bradf. 24; Kastner v. Kastner, 53 App. Div. 393; 65 N. Y. Supp. 756. And a purchaser of the interest of the survivor takes it subject to such trust which equity will enforce. (Hutchinson v. Campbell, 13 Misc. 152; 34 ISr. Y. Supp. 82.) Where, by the articles of copartnership the sur- vivor has an option to purchase the interest of the other, the representa- tives of the deceased partner have a right to share in the profits up to the time the option is exercised. (Hull V. Cartledge, 18 App. Div. 54.) Where a testator bequeaths all the remainder of the stock, tools, machinery, and book accounts of a certain business, after payment of the debts and lia- bilities thereof, to certain legatees, an unsatisfied judgment obtained by tes- tator in his lifetime for goods sold by him in the said business is an asset of the business, and not of the general estate. (Matter of Quin, 1 Connoly, 382.) Property which was the product of a business formerly carried on by the intestate, but after his death was conducted by an admin- istrator in his own name, — Held not to be the property of the estate nor in the possession of the administrators to such an extent as to enable them to maintain conversion against third persons who acquired it. (Kenyon v. Olney, 39 St. Rep. 839; 15 N. Y. Supp. 416.) As to valuation of interest of deceased partner, see Sands v. Miner, 16 App. Div. 347; Lowenstein v. Schiffer, 38 id. 178. ISBeste V. Burger, 110 N. Y. 644; 17 Abb. N. C. 162; Williams v. Whedon, 109 N. Y. 333; Haynes v. Brooks, 116 id. 487. 19 McCann v. Hazard, 36 Misc. 7 ; 72 N. Y. Supp. 45. 427 Administbatioh' of Estate, Etc. §§ 534-536. any talance found to be due from the one partner to the other, on winding up the partnership affairs. To the extent necessary for these purposes the character of the property is, in equity, deemed to be changed into personalty. On the death of either partner, his share of the land, if vested in both, or if in the survivor, his equitable title, descends as real estate to his heirs, subject to the equity of the surviving partner to have it appropriated to accomplish the trust to which it was primarily subjected.^ § 534. Goodwill of business. — The goodwill of a decedent's busi- ness passes as an asset to his representative, and on his appro- priating the business to his own use, he will be chargeable upon his accounting with the value thereof, but the right to use testa- tor's name is not an asset for which a personal representative is accountable.^^ § 535. Literary property. — The executors or administrators of any person have also the same privileges as the person himself, to copyright a book, play, etc., of which he was the author, etc., and of vending a book copyrighted by him.^^ But letters of correspond- ence are not assets in the hands of the receiver's personal repre- sentative, for the purpose of sale.^^ § 536. life insurance moneys — Where the decedent had an in- surance policy upon his life, payable to his executors or adminis- trators, the fund is, of course, assets; so is an interest in a policy on the life of another.^* Where a policy, payable to the widow or children, is issued by a company whose charter declares that such policies shall issue to the benefit of the payee, independently of the creditors of the person whose life is the subject of insurance, the fund is secured to the beneficiaries, and the husband or father cannot, by bequeath- ing the policy for other uses, defeat their right.^^ In case of such 20Darrow v. Oalkins, 154 N. Y. 503; 23 Eyre v. Higbee, 35 Barb. 502; 22 49 N. E. 61. How. Pr. 198. As to patent rights, 21 Kirkman v. Kirkman,. 20 Misc. see Pitts v. Jameson, 15 Barb. 310. 211; 45 N. Y. Supp. 373; affd., 26 24 Johnson v. Smith, 25 Hun, 171; App. Div. 395; Matter of Eandell, 8 Matter of Miller, 5 Dem. 381; Gibbs N. Y. Supp. 652. Also held, in that v. Flour City Bank, 86 Hun, 103; 34 case, that the representative was not N. Y. Supp. 195. See Mataon v. liable for the value of the right to use Abbey, 70 Hun, 475 ; 24 N. Y. Supp. the decedent's name in continuing his 284; 141 N. Y. 179. business, the right having been exer- 25Euppert v. Union Mut. Ins. Co., cised illegally find not in accordance 7 Eobt. 155. And see Senior v. Aeker- with L. 1880, c. 561. man, 2 Redf. 302; Matter of Wendell, 22 U. S. R. S., p. 966, § 4952. 3 How. Pr. (N. S.) 68. § 537. Administeation of Estate, Etc. 428 a policy, as in the case of any life insurance for the benefit of the natural dependents of the deceased, the fund may, doubtless, bo pursued as assets by creditors, but only in case, and so far as, it can be shown that it was procured by the payment of premiums in fraud of the creditors of the decedent.^® Where a life policy is specifically bequeathed, the executor owes no duty to collect it.^' § 537. Fire insurance policies. — Such policies, on which moneys had become due by a loss before the decedent's death, are assets. Where the death occurs after insurance, and before a loss, the ex- ecutor or administrator should give notice to the insurers to make the policy one for the benefit of " the estate," unless the property covered has clearly passed to particular persons as heirs or dev- isees, beyond any question of claim in favor of others. A policy thus continued by the personal representative, as well as one taken out by the deceased, and in terms payable to his personal repre- sentative, or one taken out in the first instance by the personal representative, will give him a right of action when a loss occurs f^ but the question whether the fund accruing is assets or not will depend on the character of the property insured. The executor or the administrator, though he has no title to the realty — and the creditors have no lien thereon — ^nevertheless represents the creditors ; and their interest, like that of a mortgagee, is insurable. ^^ 28 By special statute, a wife may Supp. 502. The proceeds of a policj effect insurance on her husband's life, payable to one as trustee for her' chil- and if she survive, the insurance dren do not, upon her death, pass tc moneys will be payable to her or her her executors. (Matter of MeAleenan children, except as to such part as 53 App. Div. 193; 65 N. Y. Supp. may be secured by premium paid, in 907; affd., 165 N. Y. 645.) any year, out of the property of the 27Platt v. Moore, 1 Dem. 191. husband, exceeding $500. (L. 1840, 28 Lawrence v. Niagara Fire Ins. e. 80; L. 1858, u. 187; L. 1866, c. 656; Co., 2 App. Div. 267; 37 N. Y. Supp. L. 1870, c. 277; L. 1873, c. 821.) See 811; aflfd., 154 N. Y. 752. L. 1879, e. 248, as to the assignability 29 Wyman v. Wyman, 26 N. Y. 253; or surrender of a wife's policy. De- Herkimer v. Rice, 27 id. 163 ; Colburn cedent had a policy of insurance upon v. Lansing, 46 Barb. 37 ; Clinton v. his life which made the amount in- Hope Ins. Co., 45 N. Y. 454. The sured payable " to the said assured, amount of a policy of insurance upon his executors, administrators, or as- property which had been destroyed by signs, » ♦ * for the benefit of his fire was, with the assent of the life widow, if any." Held, that the money tenant of such property, deposited in belonged to the widow and was re- bank to the credit of decedent and ceived by the executor not as assets another who were joint owners of the of the estate but as a trustee under remainder in such real estate after the the policy for the widow, and that a life tenancy. Held, that the deposit Surrogate's Court had, therefore, no of such money in the lifetime of the jurisdiction to make an order direct- decedent constituted such insurance ing the executor to pay such money money personalty which would pass to over to the widow. (Matter of Van decedent's personal representatives as Dermoor, 42 Hun, 326.) See Matter assets. (Jagger v. Bird, 42 Hun, of Gordon, 39 St. Rep. 909 ; 15 N. Y. 423. ) Moneys received on a policy of 429 Administeatioh of Estate, Etc. §§ 537a, 538. § 537a. Benefit and trust funds On the same principle a benefi- ciary-fund in a benefit association, to be paid to the family of a member after his death, does not form part of the assets of a deceased member.^" They come within the scope of the statutes relating to the insurance of a man's life for the benefit of his family, and hence moneys which the executors had received there- under are not assets in their hands, and cannot be disposed of as such, but should be applied in accordance with the terms of the trust, to the exclusion of the claims of decedent's creditors. ^^ So funds deposited by testator in a savings bank, in trust for another, belong to the latter, and are no part of such depositor's estate, and an action will lie against his executor in his individual capacity to recover such funds where it appears he has drawn the same from the bank.^^ § 538. Pension money — By the pension laws of Congress,^^ an accrued pension is declared not to be considered as a part of the assets of the pensioner's estate, nor liable to be applied to the payment of his debts, but shall inure to the sole benefit of the widow and children. This law of exemption is said to be founded on just views of human generosity, and should be liberally con- strued in favor of the debtor and his family.^* fire insurance taken out after testa- 32 Anderson v. Thomson, 38 Hun. tor's death, and payable to his estate, 394. Compare Terry v. Bale, 1 Demi are applicable to the payment of tes- 452; Crowe v. Brady, 5 Eedf. 1; Scal- tator's debts. (Matter of O'Connell, len v. Brooks, 54 App. Div. 248; 66 I Misc. 50; 22 N. Y. Supp. 914.) N. Y. Supp. 591; Robinson v. Appleby, 30 Bown V. Supreme Council of Cath. 69 App. Div. 509 ; 75 N. Y. Supp. 1. Assn., 33 Hun, 263. The fact that decedent drew the in- 31 Matter of Palmer, 3 Dem. 129; terest on such deposit for several years Matter of Wendell, 3 How. Pr. (N. does not overcome the presumption of S. ) 68. See Hellenberg v. B'nai Berith, a trust as to the principal, and where 94 N. Y. 580. The disposition of decedent, after a certain period, moneys paid at a decedent's death by allows the interest to accumulate, it benefit associations of which he was also should be included in the trust, a member, must be determined entirely (Matter of Collyer, 4 Dem. 24; Far- by the constitution and by-laws of leigh v. Cadman, 159 N. Y. 169.) See such associations, and such moneys as to gifts causa mortis, tit. 4, art. 4 are not assets of the decedent's estate of this chapter. for which his personal representatives 33 U. S. E,. S., § 4718. are chargeable upon their accounting. 34 Wilcox v. Hawley, 31 N. Y. 648; (Matter of Brooks, 5 Dem. 326.) But Shaw v. Davis, 55 Barb. 389; Lock- where an administratrix has received wood v. Younglove, 27 id. 505; Van such benefits from associations as Beuren v. Loper, 29 id. 389. Moneys funeral expenses, they must be deemed awarded by the Alabama Court of a reimbursement of amounts pre- Claims on account of an " indirect viously expended for that purpose, claim " founded upon the payment of (lb.) If the moneys are payable to war premiums of insurance, being in the legal representatives of the mem- the nature of a gratuity by the gov- ber, of course the executor may re- ernment, do not constitute assets ceive them. (Sulz v. Mutual Reserve, which an administrator is entitled to etc., Assn., 145 N. Y. 563.') distribute. They belong to the widow §§ 539, 540. Administration of Estate, Etc. 430 Hence pension moneys received by a widow, and passing unex- changed for other property to her executor, are not liable for her debts, where she leaves children under sixteen years of age.^^ But otherwise, where the pensioner (decedent) received his pension money in his lifetime, and deposited it in bank, taking a certificate of deposit, which he had at the time of his death. The money col- lected on such certificate by the executor is assets applicable to the payment of debts.^® § 539. Damages by reason of decedent's death Where the death of a decedent who left, him or her surviving, a husband, wife, or next of kin, was caused by the wrongful act, neglect, or default of a natural person who, or a corporation which, would have been liable to an action therefor if death had not ensued, the executor or administrator may maintain an action to recover damages for the sam.e, which are exclusively for the benefit of the decedent's husband or wife and next of kin, and when collected are to be distributed by the plaintiff among them, as if they were unbe- queathed assets left in his hands, after payment of all debts and expenses of administration.^'^ The damages^ therefore, are not assets for the general purposes of administration. The expenses of the action, and the repre- sentative's commissions on the residue, are to be allowed by the surrogate, upon notice given in such a manner and to such persons as the surrogate deems proper.^* § 540. Property in action. — To entitle an executor or adminis- trator to sue upon a contract, it is not necessary that he should be named in it. If, by the contract, money is payable to A., or to A. and his assigns, A.'s executor or administrator may sue for it. His right of action is exclusive also, and no words introduced into a contract or obligation can transfer to another his exclusive right of representation.^* In order to vest a right of action in one named and next of kin, and are protected Snedeker v. Snedeker, 164 N. Y. 58. from the claim of creditors. (Matter See Shearman & Eedfield on Negli- of Cooley, 6 Dem. 77.) See Taft v. gence (5th ed.), § 134. If the repre- Maraily, 47 Hun, 175. sentative dies the action may be re- 35 Hodge V. Leaning, 2 Dem. 553. vived in the name of his successor. 36Beecher v. Barber, 6 Dem. 129. ( Mundt v. Glokner, 24 App. Div. 1 10 ; And see Tyler v. Ballard (31 Misc. 160 N. Y. 572.) See McGahey v. 54), where the widow had purchased Nassau El. R. Co., 51 App. Div. 281; land with pension moneys due her affd., 166 N. Y. 017. husband. See also Matter of Liddle, 38 Co. Civ. Proc, § 1903. 35 Misc. 173; 71 N. Y. Supp. 474. 39 Dicey on Parties, 207. 37 Co. Civ. Proc, §§ 1902, 1903; 431 Admiwisteation of Estate, Etc. 541. as executor in a will, it is essential, under our statutes, that he should qualify.*" § 541. Survival of rights of action on contract The general rule is that, with respect to such personal actions as are founded upon any obligation, contract, debt, covenant, or other duty, the right of action, on which the testator or intestate might have sued in his lifetime (with certain exceptions hereafter stated), survives his death, and is transmitted to his executor or administrator, whether the breach occurred in the lifetime, or after the death, of the decedent.*^ In respect to rights arising out of real property, and proceedings relating thereto, they survive to the heir or the devisee; such as causes of action, in favor of the decedent, for waste of real prop- erty;*^ or for injuries to it in the decedent's lifetime;*^ causes of action against the decedent, for specific performance of a contract to convey real property;** rights existing in favor of the decedent, to redeem real property from sale or by virtue of an execution.*^ 40 At common law, an executor might sue before probate; but, by 2 R. S. 71, § 16, he is prohibited from interfering with the estate, before let- ters granted, further than necessary for its preservation, and to pay funeral charges; and a plea in bar that he was not executor at the commence- ment of the action is good. (Thomas V. Cameron, 16 Wend. 579 ; Varick v. Bodine, 3 Hill, 444.) See Flinn v. Chase, 4 Den. 85 ; Matter of Flandrow, 28 Hun, 279; ante, §§ 130, 131. But where a wife dies intestate, and the husband afterward dies, leaving her assets which belonged to him as her survivor, unadministered, it is not necessary for his personal representa- tives to take out letters of adminis- tration on her estate, to enable them to institute suits for the recovery of such assets. But they may institute suits in their character of personal representatives of the husband, stat- ing that he survived his wife. (Roose- velt V. EUithorp, 10 Paige, 415; Lock- wood V. Stockholm, 11 id. 87.) « Holbrook v. White, 13 Wend. 591. Thus, an administrator may have an action in his own name for an injury to personal property, intermediate the granting of letters and the death of the intestate. His title takes effect by relation. (Valentine v. Jackson, 9 Wend. 302; Babcock v. Booth, 2 Hill, 181.) The administrator has a right to recover the purchase money due on a contract for the sale of land, made by the intestate in his lifetime, and may, it seems, extend the time of pay- ment. (Schroeppel v. Hooper, 40 Barb. 425; Smith v. Gage, 41 id. 60.) But the interest of a purchaser in an executory contract of sale of land does not pass to his executor. (Griffith v. Beecher, 10 Barb. 432.) The personal representative may sue on a demand against a eotenant in common of the decedent, for his share of rents and profits. (Hannan v. Osborn, 4 Paige, 336.) Among the choses in action which thus go to the personal repre- sentatives, is a cause of action for a breach of a covenant of seizin (Mc- Kinstry v. Benson, 3 Johns. Cas. [2d ed.] 562), and of a covenant for title, if broken in the lifetime of the de- cedent (Beddoe v. Wadsworth, 21 Wend. 120) ; and though a covenant be purely personal, the death of the covenantor, after breach, does not ex- tinguish the cause of action. (Mott V. Mott, 11 Barb. 127.) And so, as to a mortgage interest before foreclosure. (Demarest v. Wynkoop, 2 Johns. Ch. 461.) *2Co. Civ. Proc, § 1652. *3See Co. Civ. Proc, § 2345; Reilly v. Erie R. Co., 63 App. Div. 415. 44 2 R. S. 114, § 4. 45 Co. Civ. Proc, § 1447. §§ 542, 543. Administeation of Assets, Etc. 432 § 542. Contracts which do not survive. — Contracts -which, by their terms, are expressly limited to the lifetime of the deceased, or which, as matter of law, are determinable by the death of either party, do not survive, and no action can be maintained by or against the representative, for any alleged breach occurring after his death, though it may for breaches before death.*^ Contracts determinable by death, as a matter of law, are such as are ob- viously founded upon personal considerations — i. e., made with reference to the personal qualities of the parties — such as an agreement to write a book, paint a picture, and contracts of apprenticeship and agency. ^'^ So, too, covenants which both run with the land and descend to the heir or devisee — i. e., covenants which affect the freehold, — go to the heir, not only where he is not named, but also where the covenant is made with the covenantee and his executor. The heir is clearly the only person to sue for any breach of such covenant, after the death of the deceased. For breaches committed during the lifetime of the deceased, the rule seems to be that if there has been a formal breach of such covenants during the ancestor's life- time, but the substantial damage has accrued after his death, the real, and not the personal representative is the proper plaintiff in an action on the covenant.*^ On the other hand, if the breach, though committed in the life- time of the covenantee, has caused any damage to the personal estate, the personal representative may sue.*® So, too, a covenant which does not run with the land ■ — e. g., a covenant in a lease not to cut down trees (the trees being excepted from the demise) — may be sued on by the personal representative. § 543. Wrongs to the property of decedent If a breach of con- tract affects the personal estate of the deceased, the representative can sue for the consequential damages. For example, an executor or administrator may maintain an action against the attorney of the deceased, for negligence in investigating a title to lands, in consequence of which the deceased took an insufficient title.^" It is said that perhaps an action might be brought even for a *6 See Stubbs v. Holywell E. Co., L. 588. Compare Eieketts v. Weaver, 12 R., 2 Exch. 311. Mees. & W. 718. 4T As to a contract to build a house, 50 Knights v. Quarles, 2 B. & B. 104. see Quick v. Ludborrow, 3 Bulst. 30; See Fried v. N. Y. C. R. R. Co., 1 2 Wms. on Exra. (6th Am. ed.) 1593, Sheldon, 1, for a review of rights of note. action under the statute which do and 48 Dicey on Parties, 211. do not survive, and go to the executor 49 Raymond v. Fitch, 2 C, M. & R. and administrator. 433 Administbation of .Estate, Etc. § 544. breach of promise of marriage, if the representative could allege injury to the deceased's personal estate as a consequence of the breach of promise.^'' The statute provides that for wrongs done to the property, rights, or interests of another (■with the exceptions stated), for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, against his executors or administrators, in the same manner and with the like effect, in all respects, as actions founded upon con- tracts.®^ Under this provision, it is held that an action is given against the executors for every injury by the testator, whether by force or negligence, to the property of another. The words "wrong done," extend to cases of nonfeasance.®^ The provision extends to a cause of action in favor of a husband against a rail- road company, for the loss of services of his wife, who was injured in the act of leaving their cars, while a passenger, through their negligence.®* § 544. Injuries to person of deceased The general rule is, that, with some exceptions, an action for a personal wrong, i. e., for injuries to the person, feelings, or reputation of the deceased, dies with the person. The statute declares that actions for slander, for libel, and actions of assault and battery, or false imprisonment, actions for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator, do not survive;®® and the same rule is applied to actions for breach of promise of marriage.®® Exceptions to the rule of the non- survival of actions for personal injuries are made by statute, in the case of injury or killing by the careless use of firearms ;®^ also in the case of injuries, causing death, occasioned by wrongful act, neglect, or default, in which instance damages may be recovered for the benefit of the surviving husband, wife, or next of kin.®* Bi Dicey on Parties, 209. S«e Cham- 5* Cregin v. Brooklyn Crosstown R. berlain v. Williamson, 2 Maule & S. Co., 75 N. Y. 192; 56 How. Pr. 465. 408 ; Beckham v. Drake, 8 Mees. & W. 55 2 R. S. 447, § 2. 846. And compare Alton v. Midland 56 Wade v. Kalbfleisoli, 58 N. Y. 282 ; R. Co., 19 C. B. (N. S.) 213. 16 Abb. (N. S.) 104. See Price v. 52 2 R. S. 447, § 1. Price, 75 N. Y. 244. 53 Elder v. Bogardus, Hill & D. 57 L. 1873, u. 19; under which the Supp. 116. We have already referred cause of action survives to the " heirs to the remedy which an executor or or representatives " of a person killed, administrator has by replevin to re- 58 Co. Civ. Proe., § 1902. See Shear- cover goods of the decedent wrongfully man & Eedfield on Neg. (5th ed.) withheld. See 2 R. S. 449, § 17 ; and § 124 et seq. McKnight v. Morgan, 2 Barb. 171. 28 § 545. Admististeation' op Estate, Etc. 434 § 545. Suits to disaffirm wrongful acts of deceased. — Authority is given by statute to any executor, administrator, receiver, as- signee, or other trustee of an estate, or of the property and effects of an insolvent estate, corporation, association, partnership, or individual, to disaffirm, for the benefit of creditors or others inter- ested in the estate, and treat as void, and resist, all acts done, transfers and agreements made, in fraud of the rights of any creditor, including themselves, and others interested in the es- tate;^® and the executors of a fraudulent vendor may resist an attempt by the fraudulent vendee to recover either the possession or the value of the property fraudulently disposed of; and they may defeat a recovery, if they can establish satisfactorily the fraudulency of the transaction.®" The executor or administrator, as the case may be, represents the decedent's creditors as well as his estate.®^ He may sue to set aside decedent's transfer both on the ground of fraud on creditors, and of undue influence, and may prove both grounds.*^ He is chargeable as for a breach of trust for a culpable neglect to institute any action or proceeding necessary to recover assets fraudulently disposed of by his decedent.*^ The right of an executor or administrator to assail an assign- ment, made by the decedent, in his lifetime, in fraud of his cred- itors, is not exclusive. If the executor collude with the assignee, and refuses to do so, the creditors, or a creditor, may, by action against the personal representative and assignee, have the assign- ment set aside, and the property applied as assets,®* and it is not necessary in such an action that the plaintiff should be a judgment creditor; he stands simply as trustee in place of the administrator.®^ fS9L. 1858, c. 314, § 1, as amended berg v. Herdtfelder, 103 id. 302; Ball L. 1889, c. 487; L. 1894, c. 740; L. v. Slaften, 98 id. 622; Southard v. 1896, c. 547, § 232; L. 1897, c. 417, Benner, 72 id. 424; Matter of Hurt, § 7. See 22 Abb. N. C. 327, note. 60 Hun, 516. 60 Bryant V. Bryant; 2 Robt. 612. e^Bate v. Graham, 11 N. Y. 237,- «lHangen v. Haehemeister, 114 N. Dewey v. Moyer, 72 id. 70; Guibert v. Y. 566. See § 516, ante. Saunders, 10 St. Rep. 43. 62 Lore V. Dierkes, 51 N. Y. Super. 65 Harvey v. McDonnell, 113 N. Y. (J. & S.) 144; 16 Abb. N. C. 47; 526. That was an action by a creditor Rousseau v. Bleau, 29 St. Rep. 334; to set aside a fraudulent mortgage, on 8 N. Y. Supp. 823 ; McCormiek v. St. the refusal of the administrator to do Joseph's Home, 26 Misc. 36. so. The sole heir and next of kin of 83 Matter of Cornell, 110 N. Y. 351. a decedent who alleges that she has This was a proceeding to hold an as- brought an action to determine the signee for the benefit of creditors, validity of the probate of an alleged under the statute of 1858, supra, and will of the decedent, under which it is of course entirely applicable to the seems she obtained no interest or case of an executor or administrator, property, has no standing, before the S. P., Matter of Dean, 86 id. 399; instrument is set aside, to maintain Matter of Cohn, 78 id. 248; Lichten- an action to set aside a transfer made 435 AcMiiiriSTEATioisr of Estate, Etc. § 546. It is further provided that every person who shall, m fraud of the rights of creditors and others, have received, or in any manner interfered with, the estate or effects of the deceased, etc., shall be liable in the proper action to the executors, administrators, or other trustee of such estate, for the same or for the value of the property taken, and the damages caused thereby.®'^ TITLE SECOND. rUNEEAI, OHAEGES AND EXPENSES OE ADMINISTRATION. AETICLE EIRST. EUNBEAL CHAEGES. § 546. Liability for funeral charges — The expenses of the suit- able interment of decedent's remains have priority over every other claim against the estate; indeed, the statute provides that the representative shall not be allowed for the payment of any debt or claim, upon his accounting, until the funeral charges are paid.®^ The immediate duty of burying the body rests upon the husband or the wife,^* or other relative of the decedent, or may rest upon a stranger under whose roof the death occurred.^* He cannot keep the body unburied, or, by exposing it to violation, offend the feelings or endanger the health of the living. by the decedent in her lifetime, for " after deducting taxes, assessments, fraud. (Hagan v. Ward, 58 App. Div. interest on mortgages, if any, and 258; 68 N. Y. Supp. 1003.) other charges and expenses, for and 68 L. 1858, c. 314, § 2; L. 1897, c. during her natural life." Held, that 417, § 7. And see 2 R. S. 449, § 17; disbursements for funeral expenses, McKnight v. Morgan, 2 Barb. 171; transportation of decedent's remains, Truesdell v. Bourke, 80 Hun, 55; 29 and services of his attending physi- N. Y. Supp. 849 ; revd., on other cian, were chargeable to the corpus of points, 145 N. Y. 612. the estate, and not to income. Under 67 Co. Civ. Proc, § 2514, subd. 3. a trust deed for the grantor for life, 68 A husband, upon the settlement remainder over, the funeral expenses of his accounts as administrator of the of the grantor should be paid out of estate of his deceased wife, should be accrued income and personalty before allowed out of her estate for her neces- using the principal of the trust. ( Mat- sary and proper funeral expenses paid ter of Yates, 27 Misc. 395; 58 N. Y. by him. The fact that it is the duty Supp. 868.) ' of the husband to bury his deceased 69Eegina v. Stewart, 12 Ad. & E. wife, does not exempt her separate 773. For a full collection of authori- estate from the ultimate charge. ( Mc- ties upon the question of the rights of Cue V. Garvey, 14 Hun, 562; Freeman the heir, next of kin, and widow, V. Coit, 27 id. 450; Kessler v. Hessen, respectively, to designate the place of 19 Abb. N. C. 86.) See Jackson v. burial, and the control of it, with the Westerfield, 61 How. Pr. 399; Van monuments, see Matter of Beekman Orden v. Krause, 89 Hun, 1 ; 34 N. Y. Street, 4 Bradf. 503 ; and also the note Supp. 1004. In Zapp v. Miller (3 of Mr. Moak to Re Bettison, L. E.., 4 Dem. 266), the will gave to testator's Ad. & Ecc. 294; 12 Moak, 656; and widow the income of all his estate, Snyder v. Snyder, 60 How. Pr. 368. § 546. Administeation of Estate^ Etc. 436 By "whomsoever the duty is performed, the estate of the de- ceased is ultimately liable to defray the necessary reasonable ex- penses of the burial. It is analogous to the duty and obligation of a father, to furnish necessaries to a child, and of a husband to a wife, from which the law implies a promise to pay him who does what the father or the husband, in that respect, omits, to do.''" It is not usual, and, in most cases, it is not possible, for letters, either testamentary or of administration upon the estate, to be applied for and granted before the funeral of the decedent, so that the executor or administrator, as such, is very rarely called upon to superintend the funeral ceremony or direct the necessary ex- penditure of money. The authority of a person named as executor in the will, to pay the funeral charges of his testator, before the .grant of letters to him, is expressly recognized by the statutes 5^^^ and the rule at common law has long been settled, that the executor or administrator must bury the decedent in a manner suitable to the estate he left behind him.''^^ The reason of the rule is as ap- plicable in the case of an administrator as an executor.''^ It seems to be settled that/the reasonable and necessary expenses of interring the dead body of a decedent are a charge against his estate, though not strictly a debt due from him; so that his per- sonal representative may be sued, as such, for their recovery.^* An executor or administrator who gives orders for the funeral, or ratifies or adopts the acts of another who gives such orders, is also liable personally;''^ and, where he has assets, he is individually liable, though he has neither given nor adopted any directions TO Per Folger, J., in Patterson v. Tl 1 R. S. 71, § 16. Patterson, 59 N. Y. 574. In this case T2 2 Blackst. Comm. 508. it was held that funeral expenses were 73 Rappelyea v. Russell, 1 Daly, 214. not to be treated as a debt of the 74 Patterson v. Patterson, 59 N. Y. estate but as a charge upon the same, 574; Ualrymple v. Arnold, 21 Hun, of the same nature and character as 110; Laird v. Arnold, 25 id. 4; Riley necessary administrative expenses, and v. Waller, 22 Misc. 63 ; 48 N. Y. Supp. was entitled to a preference as such. 535; Patterson v. Buchanan, 40 App. See Matter of Laird v. Arnold, 42 Div. 493 ; 58 N. Y. Supp. 179. But in Hun, 136; Dalrymple v. Arnold, 21 the absence of fraud or insolvency the id. 110; Laird v. Arnold, 25 id. 4; distribution of a trust fund should not Huhna v. Theller, 35 Misc. 296; 71 N. be enjoined, pending an action upon Y. Supp. 752. A life tenant, on ac- a claim for funeral expenses. (Van counting to the remainderman, may Orden v. Ledwith, 44 App. Div. 580; charge the trust fund with testator's 60 N. Y. Supp. 802.) funeral expenses, and the cost of a 75 Jj'errin v. Myrick, 41 N. Y. 315; burial plot and of a monument paid Murphy v. Naughton, 68 Hun, 424; for by him, where such expenditures 23 N. Y. Supp. 52 ; Tracy v. Frost, 32 are reasonable, and the remainderman St. Rep. 907; Matter of Sehulz, 26 assented to the expenditure. (Young Misc. 688; 57 N. Y. Supp. 952. See V. Young, 2 Misc. 381 ; 21 N. Y. Supp. Congregation, etc. v. Sindrock, 15 App. 1008.) Div. 82. 437 Administration of Estate, Etc. § 547. for the funeral, upon an implied contract for the expenses of the suitable interment of the decedent.'® But where a third person, e. g., the mother of the deceased, officiously, in the presence of the husband of deceased, assumed entire control of the funeral arrangements and sent for the under- taker, telling him to spare no expense, it was held that she became personally liable to the undertaker for the funeral expenses, and that both the husband and the estate were relieved from the obligation otherwise imposed on them by law." § 547. Proceedings to compel payment of funeral expenses For- merly, one having a claim for funeral expenses was not considered a creditor of the estate, and oould not enforce payment in the Surrogate's Court.''® But the former distinction no longer ob- tains,™ and he now is given a remedy for the collection of his claim against the representative directly. The statute provides*" that every executor or administrator shall pay, out of the first moneys received, the reasonable funeral expenses of decedent, and the same shall be preferred to all debts and claims against the de- ceased. If the same be not paid within sixty days after the grant of letters testamentary or of administration, the person having a claim for such funeral expenses may present to the Surrogate's Court a duly verified petition praying that the ex- ecutor or administrator may be cited to show cause why he should 76Rappelyea v. Eussell, 1 Daly, 214; taker had given credit to the husband. Kittle V. Huntley, 67 Hun, 617; 22 he could not maintain an action against N. y. Supp. 519; Benedict v. Fergu- the executor for the amount of his son, 15 App. Div. 96; 44 N. Y. Supp. bill. An action will not lie for ser- 307. Upon the death of a legatee, a vices gratuitously rendered by a rela- ehild of testator, the executor, with- tive, in taking charge of the inter- out waiting for the appointment of an ment of the deceased, he having died administrator of the estate of said suddenly in the street, the ordinary legatee, who should be authorized to funeral expenses having been paid by receive the same, paid out of testa- the executor. (Hewett v. Bronson, 5 tor's estate the necessary funeral ex- Daly, 1.) S. P., Hoflfman v. Kanze, 7 penses of the legatee. Held, that Misc. 237; 27 K. Y. Supp. 260. while the executor had no legal right '^8 Matter of Schulz, 26 Misc. 688 ; to make such payment, yet as strict 57 N. Y. Supp. 952. Thus he could legal rules are not inflexible as to not petition for the sale of decedent's such expenditures, equitable considera- land to pay the claim. ( Matter of tions should be applied to the ease, Corwin, 10 Misc. 196; 31 N. Y. Supp. and such payment allowed. (Matter 426.) See § 849, u. 71, post. of Butler, 1 Connoly, 58.) t9 Co. Civ. Proc, § 2514, subd. 3, as TTQuin v. Hill, 4 Dem. 69; s. c. as amended 1900. Matter of Hill, 17 Abb. N. C. 273. 80 Co. Civ. Proc, § 2729, subd. 3 In Lucas v. Hessen (17 Abb. N. C. (added 1901). The practice regulated 271), the husband of the deceased by this section applies to the collection ordered the necessaries of the funeral, of funeral expenses, though incurred and paid the undertaker a part of his prior to the enactment thereof. (Mat- bill, and suffered a judgment for the ter of Kipp, 70 App. Div. 567; 75 N. balance. Held, that as the under- Y. Supp. 589.) §§ 548-550. Administeation of Estate, Etc. 438 not be required to make such payment, and a citation shall he issued accordingly. § 548. Hearing and decree thereon. — If upon the return of such citation it shall appear that the executor or administrator has re- ceived moneys belonging to the estate which are applicable to the payment of the claims for funeral expenses, the surrogate shall, unless the validity of the claim and the reasonableness of its amount are admitted by such executor or administrator, take proof as to such facts, and, if satisfied that such claim is valid, shall fix and determine the amount due thereon and shall make an order directing the payment, within ten days after the service of such order, with notice of entry thereof, upon such executor or administrator, of such claim or such proportion thereof as the money in the hands of the executor or administrator applicable thereto, may be suflS^cient to satisfy. If it shall appear that no money has come into the hands of the executor or administrator the proceeding shall be dismissed without costs and without prejudice to a further application or applications showing that since such dismissal the executor or administrator has received money belonging to the estate.*'' § 549. Only reasonable expenses allowed The representative will be allowed, upon his accounting, the amount paid for funeral expenses, in the absence of proof that they were unreasonably large, even though they were first paid by another, to whom he subsequently repaid the amount.*^ In respect to the reasonable- ness of the expenses incurred, a person, e. g., an undertaker, who is called upon to furnish fimeral requisites, is only chargeable with a knowledge of the apparent condition of the deceased's prop- erty, and his station in life; and if he furnishes only what would be suitable, if such appearances were not deceptive, he is entitled to be paid in full from the estate, even though it is insolvent.*^ § 550. What expenses allowable as against creditors. — The amount of the expenses which will be deemed reasonable or neces- sary, for the suitable burial of a decedent, must be considered, generally, with reference to " his degree and quality," but, as against creditors, the amount of his estate is also to be considered. As respects those who are entitled to the estate, as legatees or next 81 (lb.) Such further application 82 Matter of Miller, 4 Redf. 302. shall not be made less than three 83 Matter of Rooney, 3 Redf. 15. In mouths from the granting or denial of that ease, the court ordered the pay- any previous application, and the ment upon the petition of the under- issuance of a citation thereon shall taker. But the surrogate's power to he in the discretion of the surrogate, do this was doubted in Matter of (lb.) Hooney, 5 Dem. 285. 439 Administeation of Estate, Etc. § 550. of kin, the executor or admiiiistrator, while he is not justified in an extravagant outlay,^* is not restricted to the bare necessities of . the case, as he is where the rights of creditors intervene. The executor or administrator decides, at his peril, on the amount of the expenditure which will be allowed or disallowed, on the final settlement of his accounts, as it shall be deemed reason- able or otherwise. ^^ He, should not, before ascertaining the amount of the estate, purchase a larger burial lot than is necessary,^® and although the expense of a tombstone has been considered a funeral charge,*^ yet, where the estate is insolvent, it can be allowed, if at all, to a very moderate amount only.^® 84 In Emans v. Hickman ( 12 Hun, ment was excessive. In Matter of 425 ) , the will contained the following Mount ( 3 Redf . 9, n. ) , it was shown clause: "To my executor all money that, out of an estate of $983.30, the in my possession, all money due from administratrix paid $425 for funeral any source or sources whatever, and expenses, besides $60 for clergyman's all property of every kind and de- fee and music, and $78 for a grave- scription held by me, for my funeral stone. Held, that only $200 should expenses and the erection of a be allowed for funeral expenses and monument to my memory in the $50 for a gravestone. In another case, Purdy Yard, in Phillipstown, Putnam it was held that, as against decedent's County." The estate amounted to next of kin, an expenditure of $351 $1,200. The court decided that the for a burial lot is not unreasonable, testator did not intend to spend all where the estate amounts to $13,000; his estate for funeral expenses and but as against creditors, the expendi- the erection of a monument to his ture would not have been allowed, it memory, but only so much as would seems. (Valentine v. Valentine, 4 be suitable to his condition of life; Redf. 265.) Funeral expenses incur- fixed this amount at $150, and di- red by an executor to the amount of rected that the balance be distributed $60 will not be held excessive where among the heirs-at-law, as in cases of the executor acted in good faith, intestacy. See Burnett v. Noble, 5 though testator's estate was not sufii- Eedf . 69 ; Chalker v. Chalker, id. 480 ; eient to pay in full the statutory ex- Campbell V. Purdy, id. 434; Tiekel v. emptions of the widow. (Matter of Quinn, 1 Dem. 432; Matter of Beach, Hildebrand, 23 N. Y. Supp. 148.) An 1 Misc. 27 ; 22 N. Y. Supp. 1079 ; expense of $300 incurred by an exec- Matter of Shipman, 82 Hun, 108; 31 utor for testator's tombstone is reason- N. Y. Supp. 571; Matter of Barnes, 7 able where the estate is valued at more App. Div. 13; 40 N. Y. Supp. 494; than $6,000, and the rights of credit- affd., 154 N. Y. 737. ors are not impaired. ( Matter of How- SSFerrin v. Myriek, 41 N. Y. 315. ard, 3 Misc. 170; 23 N. Y. Supp. 836.) See Springsteen v. Samson, 32 id. 703, ST Patterson v. Patterson, 59 N. Y. 714. 574; Wood v. Vandenburgh, 6 Paige, 86 Matter of Brlacher, 3 Redf. 8. 277; Ferrin v. Myriek, 41 N. Y. 315; In that case, the estate' amounted to Owens v. Bloomer, 14 Hun, 296. In $2,625.78. Held, that the administra- the last case, the estate did not ex- tors should be allowed only $250 of ceed $8,000. An expenditure of $500 $670 expended by them for a monu- for a, headstone was held to be ex- meut and inclosing the burial plot, travagant, and was not allowed as In Matter of Wood ( 3 Redf. 9, n. ) , it against the heirs. In Harvey v. Van appeared that the estate amounted to Cott (71 Hun, 394; affd., 149 N. less than $2,800, and that $700 was Y. 579), the purchase of a monu- charged by the administratrix for ment by the husband, executor of burial lot and monument, and $200 his wife, with proceeds of a policy additional was placed to the account in her favor on his life, was sustained, of funeral expenses. It was held, that 88 Wood v. Vandenburgh, supra. the charge for burial lot and monu- In Cornwell v. Deck (2 Redf. 87), it §§ 551, 552. Administeation of Estate, Etc. 440 § 551. Expenses incident to death — The expense of a special messenger to the family of the decedent, to inform them of his. death, may be allowed, where he dies abroad, and such prompt communication is necessary for the security of the estate, for the burial, and to avoid expenses of delay. So, the expense of accom- panying the body, and of a copy of the verdict of a coroner's jury,, if such copy be necessary to the burial.^® In some of the States, though not in this, the expenses of the decedent's last sickness are given a preference, with the funeral charges.®" Mourning for the family of the testator is not a funeral charge, strictly speaking, although charges therefor have been allowed in some of the States,^'^ and in two cases were allowed here.®* AETICLE SECOISTD. EXPENSES OE ADMINISTEATION. § 552. Personal liability for administration expenses After dis- charging the funeral expenses, the executor or administrator will then have occasion to incur certain expenses incident to the proof of the will, or the grant of administration, as the case may be, and such as are incident to the general administration of the estate. As in the case of funeral expenses, the executor or administrator is primarily liable for these expenses in his individual and not his representative character, although, of course, he is entitled to be reimbursed, out of the estate, his " actual and necessary expenses. was held, that the expense of a tomb- Dem. 524. In the last case it was held stone, if not exeessive, would be al- that, it being the almost universal lowed, although the estate was in- practice for the family -of a deceased, solvent. Since L. 1874, c. 267, funeral person to wear mourning; and a, expenses, including a suitable monu- change of wearing apparel being thus ment, are not only a, charge on the rendered necessary as a part of the estate, but constitute a debt, so as to preparation for the funeral, and as a entitle one furnishing the monument mark of proper respect for the dead; to institute proceedings as a creditor this expense, when reasonably incur- for the sale of the real estate to pay red by those for whom he was bound, debts. (Matter of Laird v. Arnold, in his lifetime, to provide, should be 42 Hun, 136.) borne by his estate. It was also held, 89 Hasler v. Hasler, 1 Bradf. 248. in that case, that the widow should 99 Freeman v. Coit, 27 Hun, 447. be allowed a reasonable expenditure The commissioners proposed this rule ($19) for the disinterment and re- for adoption here in their Draft of burial of decedent's remains, — the Revision (1878), § 549. place where they were first deposited 91 See Wood's Estate, 1 Ashm. 314; having been discovered to be undesir- Be Holbert, 3 La. Ann. 436; Flint- able; also $175 for a mortuary monu- ham's Estate, 11 Serg. k R. 16; Gris- ment; and $40, the purchase price of wold V. Chandler, 5 N. H. 492 ; Mack- a lot in a well-kept cemetery, the title nett V. Macknett, 9 C. E. Green, 296. to which she was allowed to take and 92 Matter of Wachter, 16 Misc. 137; hold in her individual name. 38 N. Y. Supp. 941; Allen v. Allen, 3 441 Administeation of Estate, Etc. §552. as appears just and reasonable," ^^ in addition to his statutory commissions, and consequently in addition to a legacy given by the Y/ill to the executor in lieu of " commissions." ®* The principle on which the rule of the representative's personal liability is founded is, that while he may disburse and use the moneys of the estate for purposes authorized by law, he may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator. ^^ A claim, for example, by an attorney employed by an executor, for services rendered in conducting proceedings for the probate of decedent's will, and otherwise in the settlement of the estate, and for moneys advanced for disbursements therein, is against the executor personally, and not against the estate.*^ The liability of two or more eo-representatives for the services of an attorney retained by them in proceedings against them on their accounting, is joint and personal, although their interests upon a distribution are different; and one of two representatives 93 Co. Civ. Proc, § 2730, as amended 1893; adopting L. 1863, c. 362, § 8. See Shepard v. Stebbins, 48 Hun, 247 ; Matter of Van Nostrand, 3 Misc. 396 ; Balz V. Underbill, 19 id. 215; 44 N. Y. Supp. 419; affd., 16 App. Div. 635. 9* Matter of Pollen, 1 Law Bui. 40. 95 Austin V. Munro, 47 N. Y. 360; Terrin v. Myrick, 41 id. 315; Rey- nolds V. Reynolds, 3 Wend. 244; De- mott V. Field, 7 Cow. 58; Myer v. Cole, 12 Johns. 349; Davis v. Stover, 58 N. Y. 473; Bloodgood v. Sears, 64 Barb. 71; Stedman v. Feidler, 20 N. Y. 437; McMahon v. Allen, 4 E. D. Smith, 519; Stanton v. King, 8 Hun, 4; aflfd., 69 N. Y. 609. In New v. Niooll (12 Hun, 431; affd., 73 N. Y. 127 ) , real estate was conveyed by deed to N. in trust, to receive the rents, etc., and after paying the taxes and other charges on the premises, to apply the residue to the use of R. during life. The trustee employed the plaintiff to make necessary repairs upon the building; but, having no money in hand, promised to pay therefor out of the rents to be subse- quently received. The plaintiff did the work, relying upon this promise and the trust estate. The trustee subse- quently received sufficient money to pay the bill, but neglected to do so. Held, that the estate was not liable upon the trustee's promise, though, query, if the trustee having no funds in his hands, had made a special agree- ment that such expenditure should be made on the credit of the estate and he be exempt from all personal lia- bility therefor, such agreement could not be enforced against the estate, in equity. See Gilman v. Gilman, 6 Sup. Ct. (T. & C.) 211; O'Gara v. Clarkin, 2 id. 675; Mesick v. Mesick, 7 Barb. 120, 124; Ross v. Harden, 42 N. Y. Super. 427 ; 44 id. 26 ; Foland v. Day- ton, 40 Hun, 563; 2 St. Rep. 121. 96 Budlong V. Clemens, 3 Dem. 145 ; Parker v. Day, 155 N. Y. 383. If he overpays an attorney for services, he is personally liable for the excess. (Matter of Bradley, 1 Connoly, 106; Mygatt V. Wilcox, 45 N. Y. 306. ) But the attorney is not liable for the amount so paid. (Shaffer v. Bacon, 35 App. Div. 248; 54 N. Y. Supp. 796; affd., 161 N. Y. 635.) See Bowman v. Tallman, 2 Robt. 385. In Hasler v. Hasler ( 1 Bradf . 248 ) it appeared that A. and B., co-administrators of C, re- tained counsel in a suit touching the estate, and B. died, and A. was ap- pointed his administrator, and paid for the counsel's services from B.'s estate. Held, that such payment was not au- thorized, unless the estate of C. was insolvent at the time; and the fact that B., before his death, had individ- ually promised to pay it, made no difference. § 552. Administbatioit of Estate, Etc. 442 is individually liable for the value of services performed, at his request, in preparing the joint account of both executors.*'^ Qualifying executors, who honestly differ as to the conduct of the affairs of the estate, may each separately employ counsel to render to them professional services on substantially parallel lines, but quite independent of each other, and each executor is entitled to be reimbursed for a reasonable compensation paid by him to his counsel.*^ The representative has no power, therefore, to make an agreement with an attorney by which he creates a lien upon the estate for the amount of his services rendered in an action to recover assets, or to assign the same to him. He may bind himself personally, but not the estate which he represents.** Speaking generally, the Surrogate's Court has not authority to direct an appropriation of any part of the estate, in anticipation of the expenses of administration;^ or to pass upon a bill for services rendered, vrith a view of instructing the representative whether or not, on a submission of the facts by the respective parties, the bill should be paid;^ nor has the court power to pre- scribe the terms upon which a change of attorneys may be effected in a proceeding before it, or determine the amount of compensa- 97 Douglass V. Leonard, 44 St. Rep. l Willcox v. Smith, 26 Barb. 316. 293; 17 N. Y. Supp. 591; leave to ap- Under Co. Civ. Proc, § 2672, the sur- peal denied, 18 id. 144. In that case rogate may authorize a, temporary- it was also held that the question administrator to pay expenses of ad- whether plaintiff, employed as an ac- ministration, — e. g., legal expenses countant by an executor, was to be {Stokes v. Dale, 1 Dem. 260) ; but confined to the estate for compensa- he has no power to authorize him to tion, in the absence of an express mortgage the real property for that agreement, and where the inference purpose (Duryea v. Mackey, 157 from the circumstances was doubtful, N. Y. 204) ; nor will he direct him to was for the jury. advance money to procure witnesses 88 Matter of Delaplaine, 1 Connoly, on the probate. (Fricke's Estate, 4 1; 19 Abb. N. C. 413. Civ. Proc. Eep. 177.) In Swenarton 98 Piatt V. Piatt, 105 N. Y. 488; v. Hancock (22 Hun, 43), pending an Martin v. Piatt, 51 Hun, 429. An appeal from a decree in a probate pro- attorney's claim for services in pro- ceeding, the executors, upon petition curing the probate of a will, being to the Supreme Court, obtained an against the executor personally, he has order directing the surrogate to pay, no lien for the amount upon the prop- out of any funds of the estate in his erty of the estate which may be in his hands, $3,000 to the executors or their possession. (Delamater v. McCaskie, counsel for the expenses of the appeal. 4 Dem. 549.) Compare Arkenburgh On appeal, held void for lack of power V. Little, 64 N. Y. Supp. 742; Lee v. to grant it. Such property belongs Van Voorhis, 78 Hun, 575; 29 N. Y. to the beneficiaries under the will, and Supp. 571; 145 N. Y. 603; Kennedy they cannot be deprived of any part V. Steele, 35 Misc. 105; 71 N. Y. Supp. of it, except by due process of law; 237. As to protecting the lien of an the disposition of such property be- attorney on the interest of his client longs to the executors under their ofii- (a legatee) in the estate, under an cial liability. agreement between them, see Matter 2 Matter of Cohn, 5 Dem. 338 ; of Fernbacher, 5 Dem. 219. See also Stokes v. Dale, 1 id. 260; St. John v. § 48, ante. McKee, 2 id. 236 ; Journault v. Ferris, 443 Administeation of Estate, Etc. §§ 553, 554. tion to which the retiring attorney is entitled.* ISTor will the court direct the compensation of an accountant, employed by the con- testant to examine the accounts of an executor upon his account- ing, — at least, not pending the accounting.* § 553. Expenses Incurred, but not paid It has been repeatedly held that in no event can an allowance be made to a representative for an administrative expense, e. g.^ counsel fees, until he has actually paid it; at least, not by a Surrogate's Court.^ The power of the Supreme Court to direct an executor, on an accounting in that court, to pay an expense, incurred by him but not paid, e. g., counsel fees on a probate trial at circuit — -has been adjudged;^ and in one case, a surrogate's allowance of an incurred expense (seemingly unpaid) was affirmed by the court of last resort.'^ § 554. Expense of proving will. — An executor is bound to pay the expenses of the proof of the will, and of defending the probate, when granted, against attack by appeal or otherwise, and must rely for reimbursement upon the settlement of his accounts, when the beneficiaries under the will are entitled to be heard on the question of the necessity and reasonableness of his expenditures.® id. 320. See Gilman v. Oilman, 6 Sup. Ct. (T. & C.) 211. An attorney employed by the representative should present his account for payment before the final accounting, and the repre- sentative should fix upon the amount which is reasonable to be paid, and pay it on his own responsibility, and credit himself with such payment in his final accounting, so as to enable the parties in interest to interpose objections to it, if it appears to be exorbitant. (Matter of Jarvis, 1 L. Bui. 7.) 3 Matter of Halsev, 13 Abb. N. C. 353; Chatfield v. Hewlett, 2 Dem. 191. 4 Matter of Smith. 2 L. Bui. 50. 5 Matter of Bailey, 47 Hun, 477; Shields v. Sullivan, 3 Dem. 296 ; Mat- ter of Van Nostrand, 3 Misc. 396; Matter of Patterson, N. Y. L. J., Nov. 22, 1892; Matter of Booth, id.. Mar. 9, 1893; Matter of Koch, 33 Misc. 153; 68 N. Y. Supp. 375 ; Matter of O'Brien, 5 Misc. 136. The giving of a note does not supply the want of actual payment. (Matter of Blair, 49 App. Div. 417; 63 N. Y. Supp. 678.) But the representative may file a supple- mental account after payment and then be credited with the amount. (Matter of Blair, 67 App. Div. 116.) 6 Douglass V. Yost, 64 Hun, 155; 28 Abb. N. C. 370. T Gilman v. Gilman, 6 Sup. Ct. (T. & C.) 211; affd., 63 N. Y. 41. 8 In Matter of Jones ( 24 Week. Dig. 333), an allowance was made to an administrator for expenses in resisting successfully proceedings for the revo- cation of his letters ; and in Matter of Wolfe (N. Y. Daily Eeg., Dee. 31, 1883) , where the will directed the pay- ment of debts and then created a. trust for the distribution of the income of the residue, it was held that the ex- penses incurred in proceedings for the revocation of the will were charge- able to the principal and not to the income. ( Citing Whitson v. Whitson, 53 N. Y. 481.) But an administra- tor of a nonresident decedent was not allowed credit for expenses incurred in contesting the probate of a will subse- quently found in the decedent's dom- icile. (Matter of Black, 6 Dem. 331.) See Matter of Blair, 28 Misc. 611; 59 N. Y. Supp. 1090), where an ex- ecutor of a will, who was unsuccessful in procuring its admission to probate, became liable for fees of counsel en- gaged to prosecute an appeal, and afterward, on being appointed admin- istrator, actually paid such counsel § 554. Administeation of Estate, Etc. 444 " If the executors cannot administer the trust devolved upon them, either because they have not means sufficient to defray the expenses thereof, or from any other cause, they should renounce the office." ^ If the executor resides at a distance, — e. g., in another State, — he will be allowed the expenses of his journey hither and return, and of his board while here, in the business of proving the will; for the testator must have known that such a journey would be necessary. ■'° Where, in addition to proving the will here, it is necessary to prove it in another State, his expenses thither, and while there, will be allowed.'-' Where experts are employed as witnesses in a cause affecting the estate, on the order of the court, they may be considered quasi officers of the court, and the court will order them to be compen- sated out of the estate.'^ As to the executor's expenses for counsel in probate proceedings, there is no reason, either on principle, or under the statute, for confining the amount thereof to the taxable costs ; for if that were the case, " there would be many cases where the wills of testators, as well as their estates, could not be fairly protected without great personal loss to the executors. A testator, in naming an executor, gives him an implied authority and direction to do all he reason- fees, he was not entitled to include of such order. Held, on appeal, that the fees in his account as adminis- the physicians were quasi officers of trator, and receive reimbursement the court, and it not being intended from the estate, without first having that they should be dependent upon the item of the fees allowed in his the contingency of an action for their account as executor. (Matter of Blair, compensation, it was made a charge, 67 App. Div. 116; 73 N. Y. Supp. in anticipation, upon the estate; that 675.) such order having been made with the 9 Per Gilbert, J., in Swenarton v. consent of all parties, the physicians Hancock, 22 Hun, 43. became quasi parties to the action in 19 Everts v. Everts, 62 Barb. 577, whose favor a decree had been entered, where the executor, resident of Iowa, and the discontinuance as to them, traveled from that State to Oswego, without notice of the proceedings in this State, to attend the probate of therefor, was a nullity. And further, the will, and to qualify. that although their claim was not a 11 Young V. Brush, 28 N. Y. 667. debt or demand against the testator 12Eollwagen v. Powell (8 Hun, or the personal representative of the 210), which was an action in the Su- deceased, and it was, therefore, ques- preme Court to set aside a will. An tionable if the surrogate could decree order was made, with the consent of the payment thereof; yet, as the sur- all parties, appointing two physicians rogate's order was predicated on that to inquire into the pregnancy of the of the Supreme Court, for the pay- testator's widow, their compensation ment of services ordered by it, and to be a charge against the estate. The could by that court have been directly court afterward awarded them $1,000, ordered to be paid out of the funds in but the suit was discontinued without the hands of the administrator, it was payment of the amount so ordered to proper, as matter of form, to reach the be paid. On petition, the surrogate funds of the estate in the hands of the made an order directing the adminis- special administrator appointed by the trator of the estate to pay the amount surrogate, and would not be disturbed. 445 Administeatiobt of Estate, Etc. § 555. ably can to prove and carry out the will, and this carries with it the right to charge the estate with the reasonable expense." ^* It is certain that an executor has no right to buy off contestants of his decedent's will, and charge the expenditure against the estate.'* § 555. Expenses of litigation generally The expenses incident to the prosecution and defense of actions affecting the administra- tion of the estate, including the employment of attorneys and coun- sel, the obtaining of testimony, and the representative's personal expenses, are always allowed, provided they are shown, on the accounting, to have been necessarily or properly incurred, and the amount is just and reasonable.'* The rule is not confined to the cases where the suit or proceed- ing was in the name of the executor or administrator, as such; but if, acting in good faith, for the benefit of the estate, and under advice of counsel, they sue in a manner apparently beneficial to the estate — e. g., in the name of a third person, instead of their own names as executors — and thereby are subjected to costs, they may be allowed them as against the estate.'® Whether the representative is entitled to be reimbursed for costs and expenses paid or incurred by him, in the prosecution or de- fense of suits by or against him, as such, depends upon the nature 13 Per Merwin, J., Douglas v. Yost, cided that he died without issue, will 64 Hun, 155, supra. not be allowed. (Matter of Notting- 1* BoUes V. Bacon, 3 Dem. 43. ham, 88 Hun, 443 ; 34 N. Y. Supp. 15 The expenses of himself and wit- 404.) Nor will the representative be nesses, incurred in a journey necessa- credited with amount paid to detec- rily undertaken in order to testify in tives for obtaining and collecting tes- a case involving the property of the timony. (Matter of Van Buren, 19 estate, will be allowed. (Elliott v. Misc. 373; 44 N. Y. Supp. 357.) As Lewis, 3 Edw. 40.) And the charge to allowance of counsel fees generally, of counsel will not be limited to the see Matter of Hutchinson, 84 Hun, taxable costs of the action. (lb.) 563; 32 N. Y. Supp. 869; Matter of See Betts v. Betts, 4 Abb. N. C. 323. Spoorer, 86 Hun, 9; 33 N. Y. Supp. The attorney's costs recovered from 136; Matter of Thrall, 30 App. Div. the defendant in an action by the rep- 271; 51 N. Y. Supp. 595 (modified in resentative, on a, collection of the other respects, 157 N. Y. 46) ; Matter claim, including costs, do not belong of Hosford, 27 App. Div. 427 ; 50 N. Y. to the latter, and he should not be Supp. 550; Matter of Archer, 23 id. surcharged with them. (Clute v. 1041; Matter of Quinn, 16 Misc. 651; Gould, 28 Hun, 348.) An expendi- 40 N. Y. Supp. 732; Matter of Arken- ture for a stenographic report of an burgh, 13 Misc. 744; 35 N. Y. Supp. examination of a witness de 6ewe esse, 251; 69 St. Rep. 567. For a case which was not read in evidence at the where the representative was eon- trial, and was never even returned to cerned as attorney, see Matter of Van the court, will not be allowed. (Mat- Wert, 3 Misc. 563; 24 N. Y. Supp. ter of Henry, 5 Dem. 272.) The ex- 719. pense of searching for a person or his 16 Collins v. Hoxie, 9 Paige, 81. heirs, after it has been judicially de- § 555. ADMiNisTRATioiir OF Estate, Etc. 446 of the suit, and his good faith in the matter ; advice of counsel is immaterial.^'' If the prosecution or defense was in good faith, he has not only a claim against the fund, but a right of action against the beneficiaries, for " his reasonable costs and other ex- penses;" ^® but not, where the costs were expressly personally charged to him in the action in which they were incurred,^^ though the fact that they were not expressly charged to him, is not con- clusive that they were incurred in good faith, so as to enable him to their allowance in the Surrogate's Court.^* The fact that the resiilt of a proceeding instituted by the repre- sentative was favorable to him, in the first instance, proves that the proceeding was not altogether groundless, notwithstanding a reversal on appeal.^-' The awarding of costs, on appeal, against the estate is no evidence that the court considered the proceedings unjustifiable. Nor does such a conclusion follow from the fact that costs are awarded against the estate, in a case where the rep- resentative is plaintiff. It is different where he is defendant. If costs are awarded against him in such an action, it is some evidence that the claim was unreasonably litigated.^^ The fact that costs were not awarded against him personally is not conclusive of his good f aith.^^ The good faith of the representative in resisting the claim and defending the action will determine his right to be reimbursed. Thus, where an executor unsuccessfully defended an action brought against him, individually, for the price of a tombstone, ordered by him in pursuance of a direction in the will, he is entitled to be reimbursed, out of the estate, the amount of the judgment paid by him, which included plaintiff's costs and disbursements, and, in 17 Matter of Huntley, 13 Misc. 375 ; actions by and against personal repre- 35 N. Y. Supp. 113. sentatlves, Is fully treated in subse- 18 Co. Civ. Proc, § 1916. See Boyn- quent sections of this chapter, ton V. Laddy, 32 St. Rep. 578 ; 10 21 Matter of Miller, 4 Eedf. 302. N. Y. Supp. 622. A surrogate by a 22 lb. Upon an application for leave decree refusing probate to a codicil to issue execution upon a judgment may award costs to the successful con- recovered in an action, which the ad- testant, and if the executor pays the ministrator had unsuccessfully de- same before an appeal is perfected, he fended, and in which the court had is protected in such payment, as he is awarded costs against the estate to also if no appeal is taken from that the plaintiff, the administrator can- part of the decree which awards such not be allowed to reduce the amount costs. (Matter of Eastman, 25 Week, in his hands by a, charge for counsel Dig. 397.) fees for professional services, in the iSHosaek v. Rogers, 9 Paige, 461; very action in which the judgment Matter of Miller, 4 Redf. 302. See was recovered. (Matter of Nichols, Co. Civ. Proe., § 1836. 4 Eedf. 288.) 20 Tucker v. McDermott, 2 Redf. 23 Matter of Smith, 1 Misc. 269 ; 22 319. The subject of costs, etc., in N. Y. Supp. 1067. 447 Administration of Estate, Etc. §556. addition, a reasonable counsel fee paid to his own attorney, it ap- pearing that lie acted in good faith in defending the action.^* A representative is not justified, however, in incurring expenses in contesting a claim presented against the estate, where there is no fund out of which such claim could be paid, if judgment were recovered; nor in defending claims presented against the estate, out of the proceeds of lands sold to pay debts in proceedings under the statute,^^ especially where the litigation is unnecessarily pro- tracted by repeated appeals after the law has been settled by the courts.^^ It stands to reason that he is not entitled to charge the estate with the expenses of his unsuccessful resistance of an application for an order requiring him to account, nor of his defense in pro- ceedings for contempt for neglecting to account.^^ § 556. What are necessary and reasonable expenditures. — The responsibility rests upon the representative, of deciding what is a necessary or reasonable expense of administration, in a particular case. In general, the necessity and reasonableness of an expense incurred and paid by him, will, upon his accounting, be presumed, and the burden is upon the objector to show that the sum paid 24 Matter of Grout, 15 Hun, 361. See Matter of Ritch, 76 id. 36; 27 N. Y. Supp. 613. 25 Matter of Wilcox, 11 Civ. Proc. Rep. 115 (s. c. as Matter of Wood- ward, 13 St. Rep. 161). So the es- tate should not be charged with costs incurred by him in defending an action brought against him by testator's widow to recover dower in lands de- vised to her for life by the will, but of which the executor had received the income subsequent to testator's death, (lb.) 28 Gross V. Moore, 14 App. Div. 353 ; 43 N. Y. Supp. 945. 27 Gilman v. Gilman, 2 Lans. 1. Compare Tucker v. McDermott, 2 Redf. 320; Shakespeare v. Markham, 10 Hun, 312; aflEd., 72 N. Y. 400. In Matter of Collyer (1 Connoly, 546), on an administrator's accounting, the fol- lowing expenses were not allowed, viz.; Counsel fee paid to an attorney for consultations of the administra- tor, next of kin, before his appoint- ment, as to the selection of an admin- istrator, such appointment being with- out a contest. Payment to counsel for attendance and advice as to the making of an inventory. Payment of a retaining fee to an attorney. Pay- ment of a counsel fee in a proceeding for the revocation of the will, in which the administrator appeared in his rep- resentative capacity as well as next of kin, where he was a, necessary party only as next of kin; especially where his attorney has received costs which he has not credited against the charges for services to the administrator. A large amount of money — $3,000 — paid to a young attorney who was not retained by the administrator, but who, by his persistent attendance in the proceeding, was finally recognized by the administrator as one of his counsel, such expenses not appearing to be necessary or reasonable. Search- ing for evidence by the administrator's attorney for the purpose of bringing actions. A sum paid as counsel fees for services upon furnishing a new bond on the release of one of the ad- ministrator's original bondsmen. Fees to an attorney for services rendered necessary by the attorney's reraissuess. A charge of $20 a day by the attorney of the administrator, for attending sessions of a reference where nothing was done but to adjourn (this charge was reduced to $10 for each of such sittings). See Matter of Oakes, 19 App. Div. 192; 45 N. Y. Supp. 984. § 55Y. Administration op Estate, Etc. 448 was unreasonably large,^* provided the voucher shows, prima facie, an allowable claim.^* The character and amount of the estate, and of the business of its administration, will, to a great extent, deter- mine this question. But in no case ought an expenditure to be allowed, which was not connected with the business of administration. It must have been, in every case, for a purpose either authorized by the will or comprehended in his duty as representative. Thus an executor will not be allowed for the expenses of maintaining the testator's favorite horse, though requested verbally by the testator to keep the horse as long as he should live;^* nor will he be compensated for carrying on testator's business in conjunction with the surviv- ing partner.^^ The surviving partner of the decedent is bound, as such, to col- lect the assets and close the business, without compensation from the estate of his deceased partner.^* An executor cannot be al- lowed, therefore^ the expenses of stocking and managing the de- cedent's farm, or in operating a mill, of which he and the decedent were tenants in common.^^ § 557. Representative's personal services. — The representative is supposed to be fully compensated for his personal services ren- dered to the estate, by the commissions allowed him under the 28 Fowler v. Lockwood, 3 Kedf. 465. istration of the estate, will be disal- 29 " Where an item of an account is lowed. ( Matter of Smith, 1 Misc. attacked, the question upon whom the 269; 22 N. Y. Supp. 1067.) So, too, burden of proof is imposed must be the expense of collecting rents and for decided by the test whether the court taxes, etc., where the widow, who is can, from the voucher therefor, stand- the life tenant, is required by the will ing uncontradicted, justify his allow- to bear such charges. (Matter of Tur- ance thereof as establishing a. prima fier, 24 N. Y. Supp. 91.) See Matter facie case." (Per Eansom, S., Matter of Spears, 89 Hun, 49; 35 N. Y. Supp. of Graham, N. Y. L. J., Dec. 22, 1892.) 35. But the expense of erecting a fac- In Matter of Swart (25 St. Rep. 88), tory building for use in closing up the a surrogate's decree was sustained, estate, and which increases the value disallowing liabilities created for pro- of the land, of which the heirs have re- fessional services and otherwise, in the eeived the benefit, should be credited absence of proof, either that the ser- to the executor and charged against vices were reasonable in amount, or principal. (Matter of Braunsdorf, 2 necessary for the estate's protection. App. Div. 73; 37 N. Y. Supp. 229.) 30 Matter of Teyn, 2 Redf. 306. So 31 Matter of Taft, 28 St. Rep. 315 ; the representative will not be allowed 8 N. Y. Supp. 282; Matter of Hayden, the expenses of lunacy proceedings in- 54 Hun, 197; 26 St. Rep. 911; affd., stituted against the widow and sole 125 IST. Y. 776. legatee of the intestate. (Underbill 32 Ames v. Downing, 1 Bradf. 321. V. Newburger, 4 Kedf. 499.) Pay- gee 17 Abb. N. C. 172, note, ment by an executor on a judgment 33 Larrour v. Larrour, 2 Redf. 69. against a legatee, and a brother of the But charges for threshing grain raised executor, which does not appear to by decedent, if done to prepare for sale have any connection with the admin- or market, are proper. (lb.) 449 Administkation of Estate, Etc. § 557. statute.^* Hence a representative, who, being a lawyer, appears and acts in Ms own behalf, in an action, in which the estate is interested, is not entitled to charge the estate for such services,^^ although he may employ his partner, provided he does not share in the compensation for such services.^* He will not, for example, be allowed for the use of his own horse in going about attending to the business of the estate, nor for its feed, provided by himself. ^^ Except in a case where the will authorizes it, the executors are not justified in employing one of their number to perform extra services as clerk in keeping the accounts of the estate, and allowing him a salary in addition to his statutory commissions f^ nor can they charge the estate for the services of a co-executor, an attorney, in professionally defending, at their request, an action brought against the estate, though the legatees and next of kin united in such request.^® This rule does not apply, however, to the case of the employment by the executors of one who, though named in the will as an execu- tor, never took out letters or exercised any executorial control over the estate.*" The general principle must be deemed settled that allowances for the representative's personal work and labor, e. g., in the re- pair of buildings belonging to the estate, cannot be allowed, unless specifically authorized by the judicial act of the surrogate, or a court of competent jurisdiction, before they are rendered. And in case of a guardian rendering voluntary services, the broad rule has been established that it makes no difference whether he applies to the surrogate for a formal order directing the performance of such service, and fixing the compensation for it, before the service is done (which the siirrogate has no power to grant), or whether, after such a service has been rendered, the surrogate ratifies and 34 " Where the will provides a spe- 36 Matter of Simpson, 36 App. Div. cifio compensation, to an executor or 562; 55 N. Y. Supp. 697; affd., 158 administrator, he is not entitled to N. Y. 720. any allowance for his services, unless 37 Pullman v. Willets, 4 Dem. 536. by a written instrument, filed with 38 Clinch v. Eckford, 8 Paige, 412; the surrogate, he renounces the spe- Vanderheydeu v. Vanderheyden, 2 id. cific compensation." (Co. Civ. Proc, 287. But see Matter of Meilke, 2 § 2730, as amended 1893, consolidating Connoly, 97. former § 2737.) 38 Collier v. Munn, 41 N. Y. 143 35 Matter of Howard, 23 N. Y. Supp. (three judges out of eight dissenting; 836. See Matter of Van Wert, 3 but approved in Smith v. Albany, 61 Misc. 563; 24 N. Y. Supp. 719. A id. 444). mortgage given to an executor as se- 40 Campbell v. Mackie, 1 Dem. 185. curity for a claim for his services as Compare Campbell v. Purdy, 5 Eedf. attorney in defending the estate, — 434. Held, not binding. (Bigelow v. Davol, 69 Hun, 74; 23 N. Y. Supp. 494.) 29 § 558. Admiitistkation of Estate, Etc. 450 allows it, and fixes and awards tke charge against the estate, as an extra compensation j for, in each case, the surrogate is asked to act upon the representation and proof of the guardian as to the necessity, the extent, and the value of the services to be rendered, or which have heen rendered, and hence there may arise the in- centive, on the part of the guardian, to create or magnify the need and to overrate the value of the performance.*^ The rule, however, is not inflexible, and does not apply in a case, for example, where one of the executors, at the request of his co-executors, and with the consent of all parties in interest, took charge of three farms and for a period of fifteen years spent his time and labor in managing their cultivation and collecting their rents and profits; this was no part of his executorial duty.*^ § 558. Employment of agents and clerks — As a representative is not entitled to extra compensation for his own services, in the per- formance of his administrative duties, he cannot employ, and charge the estate for, the services of another, e. g., a lawyer, in doing what he himself might justly be expected to do.*^ If he sees fit to employ another to perform the usual and ordinary ser- vices attendant upon the execution of the trust, e. g., the prepara- tion of his inventory,** the expense of the employment is his own and not that of the estate. In ordinary cases, a representative ought to keep his own ac- counts, as such, and will not be allowed clerk-hire ;*^ but cases are easily conceivable where the magnitude of the estate, or the com- « Matter of Hayden, 1 Connoly, 563. See Matter of Knapp, 8 Abb. N. 454; modfd., 54 Hun, 197; aflfd., 125 C. 308; Matter of Arkenburgh, 13 N. Y. 776; Morgan v. Hannas, 13 Abb. Misc. 744; 35 N. Y. Supp. 251. Pr. (N. S.) 361, and cases infra. 44 Matter of Quin, 1 Connoly, 382. Compare the Parsee Merchant's Case, See Pullman v. Willets, 4 Dem. 536. 3 Daly, 529; 11 Abb. Pr. (N. S.) 209; 45Matter of Beach, 1 Misc. 27; 22 Hooper v. Adee, 3 Duer, 235. But an N. Y. Supp. 1079 ; Matter of Richard- executor or other trustee of a fund in- son, 2 Misc. 288 ; 23 N. Y. Supp. 978 ; vested in land, who pays the highway Matter of Harbeck, 81 Hun, 26; 30 taxes thereon by his personal labor, is N. Y. Supp. 521 ; aflfd., 145 N. entitled to be allowed the amount Y. 648. An allowance as for clerk thereof in his account, as if it had hire cannot be made to an exec- been paid in money. (Lansing v. utor for his personal services, al- LansinfT, 45 Barb. 182; 31 How. Pr. though the affairs of the estate are 55.) But in this case the liability is such as to have justified the employ- created and liquidated by law. ment of a clerk, and the executor's 42 Lent V. Howard, 89 N. Y. 169 ; firm had been obliged to employ a Matter of Meilke, 2 Connoly, 97. clerk to attend to the duties which the 43 Raymond v. Dayton, 4 Dem. 333 ; executor would have performed, if not St. John V. McKee, 2 id. 236 ; Willson engaged in the affairs of the estate, v. Willson, id. 462; Journault v. Ter- (Matter of Butler, 1 Connoly, 58; 9 ris, id. 320; Matter of Van Nostrand, N. Y. Supp. 641.) 3 Misc. 396 ; Matter of Van Wert, id. 451 Abministeatiost of Estate, Etc. § 559. plication of its affairs, "would amply justify the employment of clerical services.*® Where the employment of an agent or clerk, in the management of the estate, is rendered fit and beneficial, by the circumstances of the estate, or is authorized by the will, the expense is a proper charge upon the estate.*^ Thus, where the decedent, a merchant, left a stock of goods in the retail store carried on by him, it was a fair exercise of discretion, by the representative, to employ a clerk to continue the sale at retail, instead of making a forced sale ; and there being no proof of loss to the estate, the wages of the clerk were allowed.** Where business of the estate is required to be transacted at a distance, the representative ought to employ an agent on the spot, instead of incurring the expense of repeated personal journeys thither.*" § 559. Expenses of preparing account for settlement. — How far a representative is justified in employing a lawyer or an accountant in preparing his account for judicial settlement necessarily de- pends upon the circumstances of each case. The Code allows him on a judicial settlement of his account, such sum as the surrogate deems reasonable for his counsel fees, and other expenses not ex- ceeding ten dollars for each day occupied in the trial, and neces- sarily occupied in preparing his account.^ It is held, therefore, that the representative may put into his account a charge for pay- ment to an attorney for making up his account.*^ *8 In a proper case, the representa- the surrogate in the probate proceed- tive may employ an attorney at a ings will not constitute a bar to the specified sum per annum. (Matter of allowance of a further sum on the Beekman, 1 L. Bui. 55.) accounting. ( Douglas v. Yost, 64 Hun, *7McWhorter V. Benson, Hopk. 28; 155; 28 Abb. N. C. 320.) An allowance Cairns v. Chaubert, 9 Paige, 160 ; to an administrator under this section, Fisher v. Fisher, 1 Bradf. 335; Bron- for counsel fees and expenses of his son V. Bronson, 48 How. Pr. 481; accounting, is an "actual expense" Meeker v. Crawford, 5 Redf. 450 ; within section 2557, and may be made Matter of White. 6 Dem. 375 ; Wells although the estate is less than $1,000. V. Disbrow, 48 St. Rep. 746; 20 N. Y. (Matter of Van Kleeck, 2 Connoly, 14.) Supp. 518. In Matter of Steward (90 51 Matter of Selleck, 1 St. Rep. 575. Hun, 94; 35 N. Y. Supp. 366), a pay- Compare Fowler v. Lockwood, 3 Redf. ment to the son of decedent for taking 465 ; Underbill v. Newburger, 4 id. care of the property after the latter'a 499 ; rietts v. Betts, 4 Abb. N. C. 323 ; death, was allowed. Hall v. Campbell, 1 Dem. 416; Hall 48 Cornwall v. Deck, 2 Redf. 87. v. Hall, 78 N. Y. 535 ; Matter of Car- « Everts v. Everts, 62 Barb. 577. man, 3 Redf. 46; Ward v. Ford, 4 id. 50 Co. Civ. Proc, § 2562. The al- 34; Matter of Brown, 16 Abb. Pr. lowance which may be made to an (N. S. ) 457. Where the services of executor on his accounting for ser- a lawyer in preparing an account are vices of his counsel in the probate pro- merely clerical, the statute limits the ceedinga is not limited to the costs amount he is to be paid, as above, allowable under this section; and the Where the services were professional, previous allowance of such costs by counsel is entitled to a professional § 560. Administkation of Estate, Etc. 452 But failing to keep his accounts distinct from his dealings with others, he is not entitled to be allowed, for his own time and ex- penses, more than would be reasonable for time spent in keeping an account in such manner as the law requires.^^ Merely because the representative had not the necessary leisure to do so himself, it not appearing that the employment of an accountant was neces- sary for any other reason, does not justify an allowance for an accountant in preparing the account.^^ TITLE THIRD. widow's quaeantine and sustenance. § 560. The statutory provision — In this State, as in most, if not all, of the States, provision is made by statute, taken from magna charta, for the tarrying of the widow in the chief house of her husband for the period of forty days after his death, without being liable to rent, and for her reasonable sustenance in the meantime, out of her husband's estate ; and this, whether her dower be sooner assigned to her or not.®* This right to remain in the husband's house relates only, it is held, to lands of which the widow was dowable, that is to say, in which the husband had an estate of inheritance.®^ Upon the ex- piration of the forty days, the right ceases, whether her dower has meanwhile been assigned or not, and thereupon the heir may expel her.®® fee to be charged as an expense of ad- main (Moore v. Mayor, etc., of N. Y., ministration. (Matter of Graham, 8 N. Y. 110) ; or by virtue of a para- N. Y. L. J., Dec. 22, 1892.) See Har- mount lien prior to the marriage (Van risou V. McAdam, 38 Misc. 18. Duyne v. Thayre, 14 Wend. 233; 19 f 2 Matter of Wilcox, 11 Civ. Proe. id. 162) ; or barred by a decree of di- Rep. 115. vorce (Pitts v. Pitts, 14 Abb. Pr. 53 Matter of Quin, 1 Connoly, 382. [N. S.] 97; 52 N. Y. 593) ; or by her For other cases, see chapter XXII, on acceptance of a provision in the hus- Costs, post. band's will, given in lieu of dower 54 1 E. S. 742, § 17; L. 1896, ^. 547, (Lewis v. Smith, 9 N. Y. 517; Grain § 184. v. Cavana, 36 Barb. 410; 62 id. 109). 56 Voelckner v. Hudson, 1 Sandf. See Matter of Mersereau, 38 Misc. 208. 215. A widow is entitled to be en- As to the effect of alienage on a claim dowed of the third part of all the real for dower, see Burton v. Burton, 1 property of which her husband was Abb. Ct. App. Dec. 271; Goodrich v. seized of an estate of inheritance at Russell, 42 N. Y. 177. As to lands any time during the marriage ( 1 R. held by the husband, as tenant in com- S. 740, § 1; Durando v. Durando, mon with a third person, and as to 23 N. Y. 331), unless, of course, she partnership lands, see Smith v. Jack- has, by joining him in a conveyance, son, 2 Eaw. 28; Smith v. Smith, 6 released her right thereto (Hawley v. Lans. 313. James, 5 Paige, 318, 543); or unless Ba Jackson v. O'Donaghy, 7 Johns, the lands have been taken from her 247; Siglar v. Van Riper, 10 Wend, husband by the right of eminent do- 414. 453 Administration op Estate, Etc. §§ 561, 562. § 561. What is a reasonable sustenance. — In regard to the widow's right to a reasonable sustenance during the forty days, the fact that the estate is insolvent is not material,^^ except as it may control the discretion of the surrogate, either in ordering the amount to be allowed, or in determining the reasonableness of the amount expended for that purpose by the executor or adminis- trator. The reasonableness of the sum to be allowed for sus- tenance, which is, of course, in addition to the articles set apart for her, and the one hundred and fifty dollars for furniture,^^ is to be determined in the light of all the circumstances of the par- ticular case, the allowance being more or less as the case may seem to require, or none at all, perhaps, if it appears that, all things considered, none ought to be made.^® But the discretion is a legal discretion, and is subject to appeal. In a case where all the real and personal estate, except a small legacy, was given by the will to the widow for life, the surrogate's decision that she was not entitled to an allowance for forty days' sustenance, nor to one hundred and fifty dollars for household furniture, was sustained on appeal.®" But the sustenance to be al- lowed for is, in any case, that of the widow herself; she cannot be allowed, by virtue of this statute, to provide out of the estate for the maintenance of the children;®^ nor, as "sustenance," will she be allowed her mourning outfit, or her personal expenses in at- tending her husband's funeral. She is entitled to the use of the supplies left on hand in the house during her quarantine, and the reasonable cost of her board during that period.®^ TITLE EOUETH. beduction of estate to possession. AETICLE FIRST. PEOCEEDINGS BEEOEE ISSUE OF LETTERS. § 562. Extent of representative's authority In regard to the collection of the estate, before the grant of letters, there was for- merly a great difference between the powers of an executor and an administrator. At common law, an executor was said to derive his title from the will itself, and not from the probate ; the letters 57 Johnson v. Corbett, 11 Paige, 265. 59 See Kersey v. Bailey, 52 Me. 199; 58 See ante, § 508 ; Matter of Hallenbeek v. Pixley, 3 Gray, 524. Wachter, 16 Misc. 137; 38 N. Y. Supp. eopeek v. Sherwood, 56 N. Y. 616. 941. 61 Johnson v. Corbett, 11 Paige, 265. 62 Matter of Miller, 1 L. Bui. 48. § 563. Administration op Estate, Etc. 454 issued to him being evidence only of his title, and not the founda- tion of it. On the other hand, the authority of an administrator springs from, and is founded on, the grant of letters to him.^^ Even a person entitled to administer in preference to every one else, and competent in every respect, has no right to interfere with the estate before the issuing of letters to him. An executor, how- ever, was held to have the right — as a deduction from the prin- ciple that he derived his authority immediately from the will — to do nearly all acts in regard to the estate before obtaining letters, and letters, therefore, were only necessary to him when he com- menced legal proceedings in which he was obliged to prove his title to act as executor; which he could only do by showing a grant of letters to him. By the Revised Statutes, however, the powers of executors have been considerably limited, and they cannot now interfere with the estate further than is necessary for its preservation, nor can they dispose of any part of it, except to pay funeral charges.^* Any person, therefore, who takes into his possession any of the assets of the decedent, without being authorized to do so as ex- ecutor, administrator, or collector, is liable to account for the full value of such assets, and cannot retain or deduct for any debt due to him.®^ § 563. Effect of letters upon prior acts If, however, letters are subsequently granted to such person, the letters are retroactive, and legalize the acts which were before tortious.®^ But this rule extends only to those acts which he might have done, had he been executor at the time, and will not protect an executor who, before the grant of letters, issued execution against a debtor of the tes- tator and sold property thereunder.^^ 83 Valentine v. Jackson, 9 Wend, letters to him are inadmissible against 302. See ante, §§ 130, 131. him in his representative capacity. 64 2 R. S. 71, § 16. Accordingly, ( Fitzmahony v. Caulfield, 87 Hun, 66 ; one to whom a due-bill, belonging 33 N. Y. Supp. 876.) to the. testator's estate, purported to 65 2 R. S. 81, § 60. See § 130, have been transferred by a person, 35 absolve the representative from the Misc. 123; 71 N. Y. Supp. 310.) duty of trying to collect it. (Matter § 629. Administeation of Estate, Etc. 516 tative's account.®* Indeed, the Surrogate's Court is the only forum where the question of the individual liability of a sole rep- resentative, upon an alleged indebtedness to the intestate, can be determined.™ § 629. Authority to sell or compound debts due to decedent. — The common-law power of executors and administrators to compound with debtors of their decedent,^^ has been confirmed by statute, which empowers the surrogate to " authorize the executor or ad- ministrator (1) to compromise or compound a debt or claim, on application, and for good and sufficient cause shown, and (2) to sell at public auction, on such notice as the surrogate prescribes, any uncollectible, stale, or doubtful debt or claim belonging to the estate." It is also provided that " any party interested in the final settlement of the estate may show, on such settlement, that such debt was fraudulently compromised or compounded." ^^ It will -be observed that the statute does not extend to claims against the estate, though it would seem that a power to permit the com- pounding of such claims might prove equally beneficial. '^^ There has never been any doubt that the representative of a decedent had ample power, at common law, to compound a debt due the latter, in his lifetime; and, irrespective of the statute, it is his duty to compound and release a debt, when the interest of the estate requires such action.''* Hence, he may settle and discontinue 69 Co. Civ. Proc, § 2731, as amended Ch. 388; Gillespie v. Brooks, 2 Redf. 1893. He ia chargeable, on his ac- 349. counting, for the unpaid principal, to- 72 Co. Civ. Proc, § 2719, as amended gether with accrued interest. (Mat- 1893; adopting L. 1847, c. 80, §§ 1,2. ter of Clark, 34 St. Rep. 523; 11 N. The law of 1847 had been amended Y. Supp. 911.) Where an executor by L. 1888, e. 571, and by L. 1893, satisfied of record his own mortgage, c. 100, but it, and the amendatory act given to his testator, in his lifetime, of 1888, were repealed by L. 1893, to secure his own bond, but did not c. 586. The amendatory act of 1893, pay the bond, his estate, on his death, c. 100, was not expressly, though it is liable, at the instance of testator's was impliedly, repealed with the heir, for the amount due on the bond, original statute. (Matter of Brownell, 39 St. Rep. 918; T3 See Matter of Bronson, 69 App. 15 N. Y. Supp. 475.) Div. 487; 74 N. Y. Supp. 1052. But 70 Burkhalter v. Norton, 3 Dem. 610. executors and administrators have the An application for adjudication as to power to submit to arbitration, dis- the amount due from an executor to puted claims or demands, in favor of, the estate and directing the deposit or against, the estate. (Wood v. thereof in a, trust company, will not Tunnicliflf, 74 N. Y. 38.) be granted pending a reference upon 74Leland v. Manning, 4 Hun, 7; the executor's accounting, which can Matter of Scott, 1 Redf. 234; Matter determine the facts upon which the of Albrecht, 1 Connoly, 12; Murray application was necessarily based, v. Blatchford, 1 Wend. 583. A pro- ( Matter of Oilman, 3 St. Rep. 340.) vision in the will authorizing the Tl See Chouteau v. Suydam, 21 N. executors to compound with debtors Y. 179; Van Home v, Fonda, 5 Johns, of the estate who were unable to pay, 517 Administkation op Estate, Etc. § 630. an action commenced by his decedent in his lifetime, without leave of the surrogate and without being substituted as plaintiff in the action.''^ The power of the surrogate is not confined, as has been supposed, to the compromise of claims against insolvent debtors,^® but extends, as well, to claimls against solvent debtors, where there is any reason to doubt either the legality of the claim," or the existence of a valid set-off.^* The application to the surrogate for leave to compromise may be ex parte, and should disclose all the facts and circumstances warranting the compromise proposed, such as the condition of the estate, the amount of the claims against it, whether presented under a published notice or otherwise; in short, the same facts should be shown as would be required if the ques- tion of the propriety of the compromise was before the court on a judicial settlement of the petitioner's account, on the objection of parties interested.^® The court will not sanction the executing, by the representative, of a composition-deed, by which a long ex- tension of credit is given the debtor, without present payment of any part of the debt. This is not a " compromise " of the debt, which means the acceptance of a part in satisfaction of the whole.*" Where the debt is a part of a trust estate, the amotint received, on the compromise, though, in part, it represents the in- terest accumulated on the debt, belongs to the principal of the trust.^i § 630. Misapplication of assets. — The representative is held to a faithful and intelligent application of the assets to actual and existing liabilities, such as the assets are legally applicable to ; and if he assumes to pay a demand which has no legal foundation, or wholly to forbear suing them, does 8i In Matter of Philbin (N. Y. Law not authorize the executors to abstain J., July 9, 1893), the executor had from deducting, from a legacy for the compromised a debt of $1,500 due the benefit of a poor person, a debt due estate for $1,350. The accounting ex- from him to the testator. (Stagg v. eeutor claimed that the compromise Beekman, 2 Edw. 89.) represented the principal of the debt, T5 Auken v. Kiener, 9 St. Eep. 669. with interest accrued up to the time 76 Howell V. Blodgett, 1 Redf. 323; of the compromise, and to the extent Patten's Estate, 1 Tuck. 56. that the sum received in compromise Tl Shepard v. Saltus, 4 Redf. 232. represented interest, it should be ap- 78 Berrien's Estate, 16 Abb. Pr. (N. propriated to the fund to be paid over S.) 23. to the life tenants. Held, that the 79 Matter of Richardson, 31 St. Rep. amount received from the debtor 957 ; 9 N. Y. Supp. 638. If the repre- formed part of the corpus of the trust, sentative compromises, without the and could not be considered in the authority of the surrogate, a judg- same light as bonds or interest-bear- ment held by him, he must establish ing securities passing to the executor affirmatively the propriety of such on testator's death; consequently the settlement. (Matter of Quinn, 30 St. rule of Riggs v. Cragg (26 Hun, 90) Eep. 210; 9 N. Y. Supp. 550.) did not apply. 80 Matter of Loper, 2 Redf. 545. §630. ADMINISTEATIO]Sr OF ESTATE, EtC. 518 and could not have been recovered, the claim may properly be dis- allowed on his accounting.*^ And if he negligently allows an in- valid claim to go to judgment, without employing counsel, to attend the trial, or taking an appeal, he may be charged with the amount paid on the judgment.®^ He cannot allow claims which, though otherwise valid, are barred by the Statute of Limitations, whether the claim is his own^ or another's f^ nor can he revive a debt so barred by a new promise.*® It is no part of the duty of a representative to subject the estate of his decedent to a demand from which it is by law exempt. If he can do it in any manner, it must at all events be by a positive contract. A provision in the will for the payment of all just debts does not revive a debt barred by the statute.*'' Where the representative has allowed a claim against the estate, it is not res adjiidicata against the credit- ors or next of kin. On the final accounting, the wisdom of his action in allowing the demand against the estate may be litigated by them against the representative,_and passed upon, even though such a course may involve the trial of a disputed claim.** An 82 Dye V. Kerr, 15 Barb. 444. 83 Matter of Saunders, 23 N. Y. Supp. 829; 4 Mise. 28. 84 Rogers v. Rogers, 3 Wend. 503. See ante, § 565. 85 Bloodgood V. Bruen, 8 N. Y. 362 ; Matter of Hill, 26 St. Rep. 290; 7 N. Y. Supp. 328; Hamlin v. Smith, 72 App. Div. 601; Matter of O'Rourke, 12 Misc. 248; 34 N. Y. Supp. 45; Matter of Oosterhoudt, 15 Misc. 566; 38 N. Y. Supp. 179. After a lapse of upward of twenty years since the pay- ment, by an executor, of a debt barred by the Statute of Limitations, the court may presume that the executor, in paying it, had evidence of a new promise by the testator; and credit may be allowed accordingly for such payment. (Broome v. Van Hook, 1 Redf . 444. ) So the payment of a judg- ment, obtained against the executor on a demand barred by the statute, on proof of a new promise made by liim, was held a proper charge against the estate. Every presumption must be given in favor of the executor, after a long lapse of time — e. g., twenty-one years — that he had good and suflBcient reason for making the new promise. (lb.) An administra- tor will not be charged with com- pound interest in a case where he has acted in good faith, and apparently refused to interpose the defense of the Statute of Limitations, where there has been long acquiescence by the next of kin. (Matter of Kennedy, 30 St. Kep. 215; 9 N. Y. Supp. 552.) 86 Matter of Kendrick, 107 N. Y. 104 ; Bucklin v. Chapin, 1 Lans. 443 ; Flynn v. Diefendorf, 51 Hun, 194; 4 N. Y. Supp. 934; Visscher v. Wesley, 3 Dem. 301; Cotter v. Quinlan, 2 id. 29; Shute V. Shute, 5 id. 1; Matter of Bradley, 25 Mise. 261; 54 N. Y. Supp. 555; Hamlin v. Smith, 72 App. Div. 601; Spicer v. Raplee, 4 id. 471; 38 N. Y. Supp. 806; Balz v. Under- bill, 19 Misc. 215; 44 N. Y. Supp. 419. See Schutz v. Morette, 146 N. Y. 137 ; 66 St. Rep. 271. 8T Bloodgood v. Bruen, supra. 88 Matter of Strickland, 1 Connolv, 435; 22 St. Rep. 902. It was said, in that case, that section 2730 (now section 2728) of the Code, permitting any party "to contest the account with respect to a matter affecting his interest in the settlement and distri- bution of the estate," did not conflict with section 2743, for the dispute of the validity of a debt or claim there mentioned, but it has reference to a dispute by the administrator or exec- utor. See Butler v. Johnson, 41 Hun, 206; Visscher v. Wesley, 3 Dem. 301. The surrogate may on a judicial settlement of the account determine the validity of any claim against the 519 Administbation of Estate, Etc. § 630. application of assets pursuant to an invalid direction contained in the will, e. g., paying for masses to be said for the repose of tes- tator's soul — although the invalidity of such a direction had not been judicially declared at the time, will not, it seems, entitle the executor to be credited therewith, on his accounting.*^ And where, with full knowledge, he distributes the assets to legatees, without reserving sufficient to pay debts due himself, or his com- missions, he is not entitled, on his accounting, to an order that the legatee refund.^" A representative who pays, from the per- sonal assets, a debt which is properly chargeable only upon the real property, may be held to account, as if no such payment had been made, and must look to the real property for reimbursement.®^ Personal property, although specifically bequeathed by the will, must be applied to the payment of the debts of the estate, before land devised can be made chargeable therefor. Consequently, where the executor first applies the rents of the real estate to the payment of the debts, it is a misappropriation of the fund, for which he will be held personally liable.®^ Before the personal estate of a testator will be discharged from the burden of pay- ing the debts, it must clearly appear that it was intended that it should be, which will not be inferred from the fact that au- thority is given to sell all or some part of the real estate for the payment of debts, especially in a case where no disposition is made of the personalty.** Where a testator had given a mortgage upon lands, to secure an accommodation indorser of his note, the amount of the note is payable out of the personal property before recourse can be had to the land.®* estate, and the fact that a claim is in 92 Nagle v. McGinniss, 49 How. Pr. favor of the administrator is irama- 193. See Matter of Oosterhoudt, 15 terial. (Matter of Williams, 1 Misc. Misc. 566; 38 N. Y. Supp. 179. 35; 22 N. Y. Supp. 906.) 83 Sweeney v. Warren, 127 N. Y. 89 0'Conner v. Gifford, 117 N. Y. 426. The testator leased certain of 275; 27 St. Kep. 453. But a creditor, his lands, in his lifetime, and it was who failed to present his claim within agreed that the lessee should erect a, the time prescribed by the published barn thereon, and that in case the notice, cannot object to the allowance, lessor died pending the lease, the where it was consented to by the lessee should haye a legal claim residuary legatee. (lb.) against lessor's estate for the value of 90 Lang V. Howell, 29 Abb. N. C. the barn. Held, that the claim was 117; 21 N. Y. Supp. 102. valid, but that the fact that the de- 91 Johnson v. Corbett, 11 Paige, cedent lessor had no personal prop- 265. Compare Matter of Hosford, 27 erty did not make the claim a charge App. Div. 427; 50 N. Y. Supp. 550. upon the real estate in the nature of Executors may lawfully pay out of an equitable mortgage. (Matter of the estate the amount due on a con- Williams, 1 Misc. 35.) tract for the purchase of land exe- 94 Cochrane v. Hawver, 54 Hun, cuted by the testator, which land has 556; 28 St. Kep. 1. been devised by him. (Matter of Davis, 43 App. Div. 331.) § 631. Administeation of Estate, Etc. • 520 TITLE SIXTH. liquidation aktd payment of debts and tax. ARTICLE FIRST. liquidation of claims. SUBDIVISIOlf 1. asceetaining ceeditoes. § 631. liquidation of debts before the Revised Statutes Execu- tors and administrators are required to proceed " with diligence " to pay the debts of the decedent.®^ The present system of as- certaining the creditors, and liquidating the debts of the decedent, differs materially from that prevailing before the adoption of the Revised Statutes. The changes introduced tend to discourage multiplicity of suits, and to secure a perfect equality among cred- itors of the same class, which before was frequently not the case. A brief statement of the former system will shed light upon the one at present prevailing. Under the old system, a personal representative, immediately upon his appointment, or, if none was appointed, then any person who intermeddled with the estate as an administrator de son tort, was liable to an action for the re- covery of a debt due by decedent. The estate was always pre- sumed to be solvent, and suiEcient to pay all claims in full, and, therefore, it was not necessary to allege, in the declaration, that the representative-defendant had assets. If this presumption was not rebutted by plea and proof, and judgment was had against the personal representative, whether by default or on demurrer, upon verdict on any plea, except plene administravit, or admitting assets to such a sum in riens ultra, he was concluded from denying that he had assets to satisfy the judgment.^® Unless, therefore, the representative was prepared to admit that he had assets applicable and sufficient for the payment of the claim, he was obliged to contest the action, though prepared to admit the claim to be a just one. Thus, to an action on a simple contract debt of the de- cedent, the representative could plead that he had fully adminis- tered all the goods, etc., of the decedent, which had come into his hands to be administered — technically, a plea of plene admin- istravit. If he admitted the possession of a certain amount of 05 Co. Civ. Proc, § 2719, as amended 96 3 Wms. on Exrs. (6th Am. ed.) 1803 ; adopting 2 E. S. 87, § 27. 2070 ; People v. Judges of Erie, 4 Cow. 445. 521 Administeation of Estate, Etc. § 631. assets, but not enough to pay the debt in suit, this was a plea of plene administravit prceter; or he might admit assets and plead that there were other debts to which they were applicable, in preference to the debt in suit. Thus, to an action on a simple contract debt, he could plead that he had fully administered, ex- cept as to one hundred dollars, and that there was an unpaid judg- ment debt for m'ore than that amount, or a bond debt, or a simple contract debt upon which a suit had been commenced, or a debt due to himself for which he had retained. ^^ With few excep- tions, where a plea was found against an executor or adminis- trator, he became personally liable for the costs, and when he pleaded that he was never executor or administrator (ne unques executor or administrator), or that a release had been given, he was personally liable for the damages as well as the costs, the reason given being that he had pleaded a plea which he knew to be false, and had thus unnecessarily delayed the plaintiff. ^^ In- deed, the whole reason for subjecting representatives to personal liability for costs was their having pleaded falsely; but a plea which the decedent might have made, such as nan assumpsit or non assumpsit sex annos, was not considered technically a false plea, though the jury found for the plaintiff.^® The form of the judgment against a representative depended upon the pleadings. If the defendant pleaded that he had never been executor, etc., or a release to himself, and the issue was found against him, the judgment was that the plaintiff do recover the debt and costs, to be levied out of the assets of the testator, etc., if the defendant have so much, but if not, then that both the debt and costs be levied out of the defendant's own goods. If the de- fendant pleaded any other plea, except the two above mentioned, the judgment directed the execution to be levied out of the goods of the testator, etc., if the defendant had so much, and if not, then the costs to be levied out of the goods of the defendant. If the executor pleaded plene administravit j either general or special, and nulla bona or nulla bona ultra, and the plaintiff was satisfied of the truth of the plea, or, on issue joined, it was f oimd for the defend- ant, then the judgment was for execution to be levied of future assets quando acciderint. The difference between these two sorts of judgment is not so great a^ would at first appear, for although the judgment was only de bonis testatoris, yet the executor, upon STSee 2 Chitty PI. (17th Am. MQsterhout v. Hardenbergh, 19 ed.) 382 et seq.; 3 Wms. on Exrs., Johns. 266; Evans v. Pierson, 1 Wend 1941 et seq. 30. 98 People V. Judges of Erie, supra. § 632. Administkatiok of Estate, Etc. 522 a deficiency of assets, was ultimately obliged to pay the debt and tke costs out of his own property, because the judgment, as above stated, was conclusive proof of assets in his hands sufficient to satisfy it ; and where the executor, to a writ of execution in such a case, de boms testatoris, did not produce assets sufficient to satisfy the judgment, the sheriff might return a devastavit by the executor, and, upon this return, an execution de bonis propriis might issue.-' By taking a judgment to be levied on future assets, the plaintiff admitted full administration of the estate up to that time, and could not have execution until some assets came into the hands of the defendant, when he might bring an action of debt on the judgment, or take a proceeding scire facias to have execution issued on the judgment, and, in such action or such proceeding, the liability of the executor for assets that had come to his hands, or that he might have collected after the judgment, was determined.^ It will be seen, therefore, that actions at law against executors and administrators were used as means, not only of establishing the legality of claims against the estate, but also of determining the question of the proper conduct and manage- ment of the estate by the representative, and the amount of assets for which he was accountable. § 632. Liquidation of debts under the Revised Statutes The Revised Statutes altered the whole system of the common law in this regard. A judgment against an executor or administrator now proves nothing more than the amount of the indebtedness of the estate to the plaintiff. The jurisdiction as to the accounts is given to the Surrogate's Court or a court of equity; and the judg- ment creditor cannot have a distribution of the estate, except through the medium of those tribunals, nor can he lawfully issue execution on his judgment, except on the order of the surrogate. The judgment is in fact only a liquidation of the debt, and does not conclude the executor or administrator, on the question of assets at all.^ " The old system of preferential administration having been almost entirely subverted, all the pleadings and other parts of the ancient superstructure, in so far as it was raised for the protection of that system, have gone with it." * Since ques- tions relating to the due administration of the estate cannot now, as formerly, be determined in an action for the decedent's debt, 1 People V. Judges of Erie, 4 Cow. 3 Ginochio v. Poreella, 3 Bradf. 277. 445. ■* Per Cowen, J., Parker v. Gainer, 2 2 Archbold's Pr. 86; 1 Paine & 17 Wend. 559. See Allen v. Bishop, Duer's Pr. 51. 25 id. 414. 523 Administeation of Estate, Etc. §§ 633, 634. against the personal representatives of the debtor, a judgment in such an action is no longer evidence of assets or of want of them.® It seems clear, therefore, that the provision of the statute, retain- ing the old form of judgments against executors and adminis- trators, vfas incongruous and out of harmony with the modern system.® § 633. Equality among creditors — The general principle per- vading the present system of settling decedents' estates is, that the executor or administrator is to be deemed a trustee for all the persons interested in the estate, and that all such persons, whose claims are equally meritorious, are equally entitled to payment; the whole of the assets are brought under the control of the Surrogate's Court, and not a dollar can be reached, by execution or otherwise, without his assent. Nothing is gained, therefore, by a creditor in obtaining a judgment against the representatives, beyond the liquidation of the debt.'' It is clearly a principal ob- ject of the present system to produce equality among the creditors of a deoedent, giving a preference to certain classes of debts only. § 634. Representative's duty to ascertain creditors. — It is, there- fore, important for the representative to ascertain, before pro- ceeding to discharge a debt, the probable amount of the assets applicable to the payment of debts, and also the nature and extent of the decedent's indebtedness; otherwise, if after paying some of the debts there is not enough left to pay the others in full, he is chargeable with the excess of the pro rata paid.* The personal representative is a trustee for all the creditors. * To enable him, therefore, to ascertain all the creditors, and to determine definitely the amount of all the claims against the decedent, he is authorized, by public notice, to require all such claims to be presented to him within a certain time. The principle on which the statute pro- ceeds is, that the representative, being a trustee, is, like all trustees where the names of the cestuis que trust are not given in the deed, SGinoehio v. Porcella, 3 Bradf. 277. of a deficit of assets, is a fundamental See now, Co. Civ. Proc, § 1824. principle, for the enforcement of 6 2 R. S. 88, §§ 31, 39. In Allen v. which abundant provision has been Bishop (25 Wend. 414), Nelson, Ch. made." See Parker v. Gainer, 17 J., said: "There are some sections Wend. 559. in the Revised Statutes which it is im- 7 See Mills v. Thursby, 2 Abb. Pr. possible to reconcile with the general 432. system prescribed in respect to the 8 Nichols v. Chapman, 9 Wend. 452 ; settlement of estates of deceased per- Clayton v. Wardell, 2 Bradf. 1; sons. The system itself does not seem Veeder v. Mudgett, 95 N. Y. 295; to have been fully comprehended by Matter of Keef, 43 Hun, 98. its authors. A pro rata distribution SBuckhout v. Hunt, 16 How. Pr. among the creditors of a class, in case 407. §§ 635, 636. Administeation of Estate, Etc. 524 bound to exercise the utmost care before he accepts a claim as entitled to payment, and the law will afford him a reasonable time to examine it. § 635. Ad-interim restraint on creditors In furtherance of the same object, judgment creditors are restrained by statutory pro- vision from issuing execution upon a judgment against an ex- ecutor or administrator, unless on an order of the surrogate who appointed him. And if there is a deficiency of assets, execution can issue only for the sum that appears to be a just proportion of the assets applicable to the judgment.-^" As a further restraint upon creditors, it is provided that costs cannot be recovered against executors or administrators, except in certain cases where the claims sued on have been rejected by the executors. The creditor's right of action, however, is not absolutely suspended; he may prosecute his action, but he must do so at his own cost and expense, and not at the cost and expense of the estate, unless he can show that the executor has been guilty of some laches or illegal act in regard to the adjustment of his claim. ^^ § 636. Notice to creditors to present claims At any time after the granting of letters, the executor or administrator may insert a notice, once in each week for six months, in one or more news- papers printed in the county, as the surrogate directs, " requiring all persons having claims against the deceased, to exhibit the same, with the vouchers therefor, to him at the place to be speci- fied in the notice, at or before the day therein named, which shall be at least six months from the day of the first publication of the notice." ^^ The surrogate will grant an order for the publication 10 Co. Civ. Proc., §§ 1825, 1826. ment of 1890, the notice was to be The rule at common law was, that first published " after the expiration every one was conclusively presumed of at least six months since the grant- to have knowledge of what was trans- ing of letters " — for no reason that acted in the king's courts, and that the any one was ever able to discover, record was constructive notice to The requirement that the claim should every one affected thereby of all be presented at the representative's therein contained ; and an executor or " place of residence or transaction of administrator could not excuse him- business," is also happily done away self for having consumed the estate with. It was held, under the former in paying debts of an inferior degree, statute, that the notice need net by showing want of knowledge of the specify, as the place of presentment, judgment. And this is still the rule, the place where the representative unless the representative avails him- transacted his own personal business, self of the right to publish notice, etc. or his private residence. He might 11 Buekhout v. Hunt, 16 How. Pr. select a place as his place of business 407. See subd. 3 "of this article, post, or residence, so far as his relation to 12 Co. Civ. Proc, § 2718, as amended the estate is concerned, e. g., the office 1893; adopting 2 R. S. 34, as amended of his attorney; and the designation L. 1890, c. 456. Before the amend- of such place in the notice made that 525 Administkation of Estate, Etc. § 637. of tbe notice upon the application of the representative or his attorney. The application is usually in writing, but verification is not required. If the surrogate is desired to designate more than one nevv^spaper for the publication of the notice, either in the county or elsewhere, he should be informed of any facts and cir- cumstances calculated to influence his selection. ^^ Publication in one newspaper printed in the county, pursuant to the order of the surrogate^ is sufiicient, unless he directs a publication in some other newspaper also.^* The notice is for the protection of the executor or adminis- trator, and of the estate; there is no absolute obligation to give it at all}^ Hence, his omission to publish a notice vnll not have the effect of subjecting him to costs, in an action by a creditor for a debt due by decedent. ■'® Immaterial errors or omissions in the notice will not affect its validity, e. g., the omission of the middle letter of the name of the testator in the notice is immaterial, as the law recognizes but one christian name;^^ or using the word '' requested " instead of " required " in the notice to creditors.^* SUBDIVISION 2. PEESENTATION AND PEOOF OF CLAIMS. § 637. What claims may be presented. — Claims which have been established by judgment, ^^ or which have been decided upon the residence or place of business of such newspaper alone is deemed most the executor, for that purpose, within likely to give notice to creditors, as the meaning and object of the statute, required by the statute and whether (Hoyt V. Bonnett, 58 Barb. 529; revd., a publication in one paper was suf- on other grounds, 50 N. Y. 538 ; dis- iicient. See Murray v. Smith, 9 Bosw. approving Murray v. Smith, 9 Bosw. 689. In New York county, the notice 689.) But the notice was held de- must be published in The Neio York fective if it required presentment to Law Journal, and the surrogate desig- be made to the attorney of the exec- nates another paper in addition, utors as such, instead of to the exec- 15 Field v. Field, 77 N. Y. 294 ; utors themselves. (Hardy v. Ames, Bullock v. Bogardus, 1 Den. 276;Rus- 47 Barb. 413; Whitmore v. Foose, 1 sell v. Lane, 1 Barb. 519; Fort v. Den. 159.) Gooding, 9 id. 388; Comstoek v. 01m- 13 The statute provides for a notice stead, 6 How. Pr. 77. " in a newspaper or newspapers 16 Bullock v. Bogardus, supra; over- printed m the county;" but there is ruling, on this point, Harvey v. Skill- no reason why, as heretofore, the court man, 22 Wend. 571. In the earlier should not designate, besides a paper case of Knapp v. Curtiss (6 Hill, 386), printed in the county, another paper the court declined to be governed by printed in another county. the rule in Harvey v. Skillman, supra, 14 Dolbeer v. Casey, 19 Barb. 149. which case, however, it attempted to It wa/s said to be doubtful under the distinguish. former statute (but without good 17 Cornes v. Wilkin, 79 N. Y. 129. reason), whether a mere order of pub- 18 Prentice v. Whitney, 8 Hun, 300. lication is sufficient, without a formal 19 Matter of Phyfe, 5 N. Y. Leg. adjudication that a publication in Obs. 331; Matter of Browne, 35 Misc. § 637. Administkatiow op Estate, Etc. 526 by the representative,^" before or during the publication, need not be presented after the publication of the notice ; but the neces- sity of presentation is not avoided by the knowledge of their ex- istence, by the representative.^' Any claim of whatever character may be presented, provided it existed against the deceased in his lifetime, and provided further that it is one which survives him. A claim for services, rendered after the testator's death, is against the executor personally and not against the estate.^^ So a claim by the personal representative of a deceased executor, for debts paid by such executor in administering the estate of his testator, is not a claim against the decedent.^^ ISCor does the statute extend to the liability of the estate of a deceased executor, for assets held by him as such at his death, ^* nor to claims made by the executor against other parties, and in favor of the estate, except strictly in the way of set-off.^^ To the extent of the assets which have come into their hands to be administered, executors or administrators are liable on all contracts made by the testator or intestate, whether broken before or after his death,^** except contracts limited to, and not broken during, the lifetime of the deceased, and except covenants in law, not broken during the life- time of the deceased. Their liability is not affected by the fact 362; 71 N. Y. Supp. 1034. Where the to a surviving eo-partner, on account representative has been substituted of the partnership transactions (Bab- for a deceased defendant in a pending cock v. Lillis, 4 Bradf. 218; s. c, sub action, he is not entitled to presenta- nom. Sellis' Case, 3 Abb. Pr. 272; tion of the demand. (Tindal v. Jones, Payne v. Matthews, 6 Paige, 19; but 11 Abb. Pr. 258; 19 How. Pr. 469.) compare Kirby v. Carpenter, 7 Barb. See Matter of Clarke, 57 App. Div. 373; Arnold v. Arnold, 90 N. Y. 580) ; 430 ; 68 N. Y. Supp. 243. the purchase money of land contracted 20 Field v. Field, 77 N. Y. 294. but not paid for by the decedent, un- 21 Matter of Morton, 7 Misc. 343 ; less the vendors elect to look to the 28 N. Y. Supp. 82. . land (Johnson v. Corbett, 11 Paige, 22 Clark V. Todd, 41 St. Rep. 758; 265), and an order for judgment as 16 N. Y. Supp. 491; Matter of Arken- in case of nonsuit, against the de- burgh, 13 Misc. 744; 35 N. Y. Supp. cedent in his lifetime, entered in the 251. Where a testator, in his will, minutes of the court, though the gave to his widow as much as she record be not signed or filed till after would need for support, an account for his death ( Salter v. Neaville, 1 Bradf. support furnished by a third person, 488 ) , are examples of this class of is not a claim against the decedent, liabilities. For other cases, see Eib- ( Godding v. Porter, 17 Abb. Pr. 374.) let v. Wallis, 1 Daly, 360; Hall v. 23 Stewart v. O'Donnell, 2 Dem. 17. Bennett, 49 N. Y. Super. 301 ; Oilman 24 Sands v. Craft, 10 Abb. Pr. 216 ; v. Wilber, 1 Dem. 547 ; distinguishing 18 How. Pr. 438. But see Fowler v. Bank of Poughkeepsie v. Hasbrouck, Hebbard (40 App. Div. 108; 57 N. Y. 6 N. Y. 216; Terry v. Bale, 1 Dem. Supp. 531), which was the case of a 452. Services of a son on his father's claim against decedent founded upon farm, — Held not to be a legal claim his liability as guardian. against the father's estate. (Wamsley 2BAkely v. Akely, 17 How. Pr. 21. v. Wamsley, 48 App. Div. 330; 62 N. 26 See 2 R. S. 113, §§ 1-5. Thus, a Y. Supp. 954.) See Otis v. Hall, 117 balance due from a deceased partner N. Y. 131, 527 Administeation of Estate, Etc. § 638. that a concurrent remedy Cixists against the heir or devisee, e. g., on a covenant which runs with the land, and, therefore, descends to the heir,^^ though, as we have seen, the executor cannot himself sue on such a covenant, unless substantial damages were caused, by the breach, to the personal estate.^* The rule extends to im- plied contracts. Thus, the liability of a stockholder, imposed by law,^^ for a debt of the company incurred before its capital stock was paid in, survives his death and may be enforced against his estate.^" But a cause of action given by the statute,^^ against the trustees of a corporation, for a failure to file a report as required, is penal in its character and does not survive a trustee's death. ^^ §638. Decedent's joint obligation The former 'rule, that the estate of a person jointly liable on contract, with others, is dis- charged by his death, *^ is now abrogated, and where an action is pending, the court may cause the decedent's representative to be brought in, or, where the liability is also several, it may direct a severance.^* Contingent liabilities, for which the estate is not primarily liable, and upon which its liability has not been fixed — e. g., claims against the estate of a deceased partner, for partner- ship debts, while the survivor is living and the remedy against him has not been exhausted — may properly be presented under the notice. ^° Hence, the provision of the statute limiting the time for commencing suits upon claims disputed or rejected, includes claims which are contingent, as well as those where the liability is certain and fixed.^® A claim for a possible deficiency on a mortgage foreclosure and sale, for which the decedent would have been liable, if living, should be proAaded for by the representative, and hence may be presented under the notice. The claims which an executor or administrator is competent to adjust and settle are not confined to claims arising on contract, nor to those cognizable in the common-law courts. The object of the statute is to allow a presentment of aU claims against the 2TWms. on Exrs. (6th Am. ed.) 34 Co. Civ. Proc, § 758. See Randall 1591; Dicey on Parties, 315. v. Sackett, 77 N. Y. 480. 28 See § 542, ante. 35 Hoyt v. Bonnett, 50' N. Y. 538; 29 L. 1849, e. 308. Selover v. Coe, 63 id. 438; Whitlock's 30 Chase v. Lord, 16 Hun, 369. See Estate, 1 Tuck. 491; Francisco v. Mahoney v. Bernhardt, 27 Misc. 339; Fitch, 25 Barb. 130; White v. Story, 58 N. Y. Supp. 748. 43 id. 124; Harbeck v. Pupin, 23 Abb. 31 L. 1848, c. 40, § 12. N. C. 190. 32 Bank of California v. Collins, 5 36 Cornes v. Wilkin, 79 N. Y. 129. Hun, 209; Reynolds v. Mason, 54 See Williams v. Eaton, 3 Redf. 503; How. Pr. 213. Matter of Saunders, 4 Misc. 28. 33Risley V. Brown, 67 N. Y. 160; Hauck. V. Craighead, id. 432. § 639. Administeatioh^ of Estate, Etc. 528 estate, whether of a legal or an eqiiitable nature,^^ such as a claim against the estate for a tort of the deceased — e. g., the conver- sion of personal property^® and unliquidated claims by a surviv- ing partner, against the estate of deceased partner, growing out of the partnership, including payments made after his death.^® Where a member of a co-partnership procured credit for his firm by means of false and fraudulent representations, and subse- quently died, a judgment, recovered against the surviving partner for the debt contracted by means of such representations, does not merge the right of action, against the decedent's executor or administrator, for the deceit.*" Suing the surviving partner on the debt does not waive the right of action against the decedent's representative' for the tort, as the plaintiffs are not bound to elect, but are entitled to recover of the former whatever they can secure under the contract, and also to obtain, against the latter, redress for whatever damage they may have sustained from the fraud.*^ The statute provides that causes of action for wrongs to the property, rights, or interest of any person, survive as against the representatives of the wrongdoer,*^ except as stated.*^ But though an action will not lie against executors for a fraud of the testator which does not benefit the assets, it will lie on a contract fraudulently performed.** Actions to recover damages for neg- ligence of an innkeeper, common carrier, bailee, surgeon, attor- ney, etc., are in reality founded upon a contract, express or implied, and are usually brought in the form ex contractu. Such causes undoubtedly survive; so, a cause of action for trespass de honis asportatis.*^ § 639. Effect of not presenting claim. — The neglect of a cred- itor to present his claim within the time specified in the published notice does not bar his right of action on the claim, nor prevent 37 Skidmore v. Post, 32 Hun, 54 ; aside. But the mere fact that the Broekett v. Bush, 18 Abb. Pr. 337 ; executor has an equitable defense, has White V. Story, 43 Barb. 124; 28 How. never been held to be a ground for Pr. 173. Compare Cornes v. Wilkin, his refusing to refer. (Robertson v. 79 N. Y. 129; Hoyt v. Bonnett, 50 id. Sheill, 3 Dem. 161.) 538. « Morgan v. Skidmore, 3 Abb. N. C. 38 Broekett v. Bush, supra. 92. See Matter of Pierson, 19 App. 39 Francisco v. Fitch, 25 Barb. 130. Div. 478; 46 N. Y. Supp. 557. In York v. Peck (9 How. Pr. 201), « lb. See Harbeck v. Pupin, 23 an opinion was intimated that the Abb. N. C. 190. statute applied to claims of a legal 42 2 R. S. 447, § 1. See Bond v. nature only. The same view was Smith, 4 Hun, 48. taken in Sands v. Craft (10 Abb. Pr. 43 See § 543, wnte. 216), where an order awarding costs « Troup v. Smith, 20 Johns. 33. against an executor, granted on the 45 HeinmuUer v. Gray, 13 Abb. Pr. ground that he had refused to refer (N. S.) 299. a strictly equitable cause, was set 529 Administeation of Estate, Etc. § 640. his presenting it on the accounting of the representative, or mov- ing on it to compel the representative to account and pay his claim.*® But if it is not presented he cannot complain of a dis- tribution of the personal estate to the parties entitled.*'^ Its only efPect is to limit his recovery, in any action he may bring on the claim, to the amount of the assets remaining in the representa- tive's hands unadministered at the commencement of the action,** and to deprive him of the right to costs. It is only in case a consent to the determination of the claim by the surrogate is not filed or the claim is not referred or prosecuted within six months after its dispute or rejection, that he is forever barred from main- taining an action upon it, against the representative.*^ § 640. Verification of claim. — In speaking of the requisite proof of claims, a distinction should be made betvpeen disputed claims, that is, claims vs^hich the representative rejects and which are after- ward disposed of on trial, and those claims which the representa- tive allows, on their being verified to his satisfaction. The statute declares that " he may require satisfactory vouchers in support of any claim presented, and the afiidavit of the claimant that the claim is justly due, that no payments have been made thereon, and that there are no set-offs against the same" to his knowledge.^" The verification of a claim gives it the character of an " undis- *6 Cotter V. Quinlan, 2 Dem. 29 ; ministrator to exact proof of a speei- Matter of Mullon, 145 N. Y. 98; 64 fied character is not compulsory upon St. Rep. 551 ; Lesser v. Keller, 29 N. the personal representative, but is a Y. Supp. 829. privilege accorded to him which he ■4T Matter of Morton, 7 Misc. 343; may take advantage of or not. There 28 N. Y. Supp. 82. is nothing in the statute which neees- 48 Co. Civ. Proc, § 2718, as amended sarily requires that the evidences of 1893. See Mayor, etc. v. Gorman, 26 the debt should be laid before the App. Div. 191; 49 N. Y. Supp. 1026. executor or administrator, or that 49 Co. Civ. Proc, § 1822, as amended claimant should make oath of the jus- 1895; Baggott v. Boulger, 2 Duer, tice of the claim, unless required to 160; Erwin v. Loper, 43 N. Y. 521. do so by the executor or admiuistra- The subject of the limitation of ac- tor." (Ransom, S., in Matter of tions against executors and adminis- Sears, N. Y. Law J., June 6, 1890.) trators will be considered hereafter. It is enough if the statement shows The presentment of a claim, and a the transaction out of which the claim consent to refer, furnish no ground arose, its general character and for denying a motion to revive a pend- amount. (Titus v. Poole, 145 N. Y. ing action on the same claim against 414; 65 St. Rep. 344.) The claimant the decedent. Such presentment and is not required to specify in his consent do not amount to the com- affidavit an independent demand con- mencement of another action, avail- ceded to be due from him to the es- able as a defense. (Dalton v. Sand- tate, but which the administrator land, 4 Civ. Proc. Rep. 73.) may or may not plead as a counter- so Co. Civ. Proc, § 2718, as amended claim, at his option. (Osborne v. 1893 ; adopting 2 R. S. 88, § 35. " The Parker, 66 App. Div. 277 ; 72 N. Y. statute authorizing an executor or ad- Supp. 894.) 34 § 641. Administration of Estate, Etc. 530 puted debt." ^^ The claimant is not bound to furnish other evi- dence of the debt, unless required to do so by the representative.^^ He may be required to furnish a bill of particulars, or make his claim more definite and certain. ^^ The claim need not he pre- sented to each of tvpo representatives.^* But it is a general prin- ciple that claims mthheld during the life of an alleged debtor, and sought to be enforced after his death, are alv?ays to be carefully scrutinized, and only admitted upon satisfactory proof ; and where it appears that there was a subsequent dealing in which the pre- tended creditor was a debtor, and did not present his claim in diminution of the debt, distinct and definite proof will be re- quired, and the clearest indications of honesty and fairness.^^ §641. Debt due representative from decedent The representa- tive is not permitted to liquidate his personal claim against the de- cedent, by admitting it in his representative capacity, as he may do in the case of claims presented by other creditors. He is ex- pressly forbidden to " satisfy his own debt or claim out of the property of the deceased until proved to, and allowed by, the sur- rogate ;" and this, to the end that " it shall not have preference over others of the same class." "* Prom the common-law right which an executor or administrator had, to retain, as a creditor, so much of the assets as might be necessary to discharge his claim, a conclusive presumption arises in favor of the payment of his debt, where, during his lifetime, the representative made no claim that his debt had not been paid.^^ 61 Lambert v. Craft, 98 N. Y. 342. same. (Clark v. Coe, 52 Hun, 379.) An allowance by an executor of a note In Matter of Hill ( 26 St. Rep. 290 ; 7 made by his testator as a claim N. Y. Supp. 328 ) , the administrator against the estate implies that it has presented his personal claim, a greater not been paid. (Matter of Kellogg, part of which was barred by the Stat- 104 N. Y. 648.) ute of Limitations, to himself and his 62 Russell V. Lane, 1 Barb. 519; co-administrator. He subsequently, Gansevoort v. Nelson, 6 Hill, 389. without consideration, assigned the 63 Townsend v. New York Life Ins. claim to his daughter, who, upon a Co., 4 Civ. Proo. Rep. 398; Weller v. reference of it as a disputed claim, Weller, 4 Hun, 196. obtained a judgment upon the testi- 54 Lambert v. Craft, 98 N. Y. 342; mony of a person incompetent under Genet v. Binsse, 3 Daly, 239. Co. Civ. Proc, § 829. On the admin- 65 Kearney v. McKeon, 85 N. Y. 137; istrator's accounting, held, that judg- Matter of Smith, 1 Misc. 253. See ment having been eoUusively obtained, § 653, post. would not be allowed. 66 Co. Civ. Proc, § 2719, as amended 5T EUwood v. Northrup, 106 N. Y. 1893 ; adopting 2 R. S. 88, § 33. The 172, 182. The settled rule is that the fact that the executor secured his representative cannot pay the claim to private debt by a mortgage on chat- himself before it is judicially estab- tels held by him as executor carries lished on his accounting. (Matter of with it its own condemnation, and the Babcock, 29 St. Rep. 947 ; 9 N. Y. mortgagee cannot hold them as against Supp. 554.) Although a representa- those having a prior right to the tive cannot retain from moneys in his 531 Admietisteation of Estate, Etc. 642. § 642. Surrogate's jurisdiction to determine representative's claim. — " Where a contest arises between tlie accounting party and any of the other parties, respecting property alleged to belong to the estate, but to which the accounting party lays claim, either indi- vidually or as the representative of the estate, or respecting a debt alleged to be due by the accounting party to the decedent, or by the decedent to the accounting party," the Surrogate's Court has jurisdiction to try and determine either the representative's alleged title, or the validity of the alleged debt, on the judicial settlement of his account f^ thus making an exception to the gen- eral rule that Surrogates' Courts have no jurisdiction to try and determine the disputed claims of creditors.^* It was not the in- tention of the Legislature to deprive the court of power to examine the proof presented by the representative, and to determine its sufficiency, even where no contest arises over it by the parties, and it has been held that the surrogate may entertain a proceeding by the representative for the proof of his claim, in advance of the accounting.®" It is the duty of the court theoretically, at least, to examine every voucher, including that of the representative himself, whether contested or not, to see if it justifies the allow- ance and payment of the claim.®-' The surrogate is expressly au- hands the amount of a debt due him from the intestate, until it has been legally established and allowed, yet the parties in interest may assent thereto, and such assent will take the place, anJ answer the purpose, of formal proof and adjudication thereon, and bind the parties assenting in the absence of proof of fraud or mistake as to the claim. (Ledyard v. Bull, 119 N. Y. 62.) 58 Co. Civ. Proc, § 2731, as amended 1895 (former § 2739). The repre- sentative is not confined to this statutory remedy; he has forfeited no right as a creditor by assuming another character; his assignee may, therefore, maintain an action on it, the same as any other creditor. (Snyder v. Snyder, 96 N. Y. 88.) But the representative himself cannot maintain an action against himself and his co-representative for its re- covery. (Starbuck v. Farmers' L. & T. Co., 28 App. Div. 308; 51 N. Y. Supp. 8.) The fact that the repre- sentative has died is no bar to the proof of the claim. (Matter of Cooper, 6 Misc. 501.) 59 Lambert v. Craft, 98 N. Y. 342; Matter of Haxton, 33 Hun, 364; Stil- well V. Carpenter, 2 Abb. N. C. 242; Matter of Ryder, 38 St. Rep. 29; 13 N. Y. Supp. 542. See Neilley v. Neilley, 89 N. Y. 352. eo Matter of Marcellua, 165 N. Y. 70. Matter of Rider (129 N. Y. 640), holding the contrary, was decided with reference to a time when L. 1837, c. 460, giving the surrogate power to determine a representative's claim, had been repealed. Subsequently sec- tion 2719 was amended (L. 1893, c. 686) by inserting the provisions of the Act of 1837. Therefore the pre- vious decisions under the latter act are pertinent and controlling. (Kyle V. Kyle, 67 N. Y. 400; Shakespeare v. Markham, 72 id. 400; Boughton v. Flint, 74 id. 476.) 61 Kyle V. Kyle, supra; Shakespeare V. Markham, supra; Smith v. Chris- topher, 3 Hun, 585. The representa- tive is entitled to interest on his claim, until a final settlement of his accounts, though, some time before such settlement, he received funds suflScient to reimburse himself from a sale of the personal estate. (Matter of Saunders, 23 N. Y. Supp. 829; 4 Misc. 23.) § 643. Administration of Estate, Etc. 532 thorized to examine the accounting party, under oath, touching his receipts and disbursements, or touching any other matter re- lating to his administration of the estate, or any act done by him under color of his letters, etc.^^ The only claims which the sur- rogate has jurisdiction to try and determine, under the statute re- ferred to, are held to be those of which the representative is the sole owner, and, consequently, the representative cannot prove a claim due a firm of which he is a member;®^ though it has been held, that the fact that others were jointly interested with the representative, or that he acquired an additional interest by as- signment, after he became such, did not affect the authority of the surrogate to adjudicate in regard to it.** § 643. Character of proof required — It is said that a representa- tive's claim requires stricter proof than the claims of other credit- ors. The rule is general that the claimant's own affidavit verify- ing his claim is not, of itself, the proof required The existence of the debt must be established by legal evidence,*® in addition to the verification of the claim by the representative himself;** and such verification must be, in each particular, the same as the verification which he may require of another creditor. Thus, where the administrator (sworn on his own behalf, without ob- jection) failed to testify that no payments had been made on ac- count of his claim, or that there were no offsets against it, the claim was rejected, as these were held to be affirmative facts to be established by the claimant.*'' It was said, indeed, that a repre- sentative's claim against the estate is to be regarded with suspicion, when not based upon some written obligation of the decedent.*^ But this is a hard, if not altogether erroneous, view of the law. In an ordinary action for debt, the plaintiff is not required 62 Co Civ. Proc, § 2729. App. Div. 583; 69 N. Y. Supp. 125; 6£ Matter of Jones, 2 Misc. 221; 23 Matter of Humfreville, 6 App. Div. N. Y. Supp. 767. 535; 39 N. Y. Supp. 550; Matter of M Shakespeare v. Markham, 72 N. Maroellus, 165 N. Y. 70. Y. 400. But, it seems, a different M Terry v. Dayton, 31 Barb. 519; question would arise where the repre- Clark v. Clark, 8 Paige, 152; Matter sentative, after he became such, pur- of Babzer, 23 Week. Dig. 305 ; Matter chased a claim in which he had of Saunders, 4 Misc. 28 ; Matter of no prior interest. (lb.) And see Childs, 5 id. 560; Matter of Weeks, Sehreyer v. Holborrow, 63 How. Pr. 23 App. Div. 151. See Brooks v. 228, explaining Scrantom v. Bank of Brooks, 4 Redf. 313. Rochester, 24 N. Y. 424. 6T Wood v. Rusco, 4 Redf. 380 ; Mat- es Underbill v. Newburger, 4 Redf. ter of Clapsaddle, 4 Misc. 355 ; 24 N. 499; Keller v. Stuck, id. 294; Wil- Y. Supp. 313. But see Matter of Hams v. Purdy, 6 Paige, 168; Matter Neil, 35 Misc. 254. of Stevenson, 86 Hun, 325; 33 N. Y. 68 lb. And see Wright v. Wright, Supp. 493 ; Matter of Arkenburgh, 58 4 Redf. 345. 533 Administration of Estate, Etc. § 644. to show affirmatively, as a condition of recovery, nonpayment, the nonexistence of any set-off or other such affirmative defenses. These defenses could, ordinarily, be proved only by the claimant himself, and as he vpould be incompetent to testify, under section 829 of the Code, the anomaly of requiring a specific kind of proof to establish the claim, while the statute disqualifies the only per- son competent to prove the fact from testifying thereto, will not be tolerated.^® § 644. Statute of Limitations against the debt, suspended. — In view of such possible contest, on the judicial settlement of the rep- resentative's account, the statute provides, that " from the death of the decedent, until the first judicial settlement of the accounts of the executor or administrator, the running of the Statute of Limitations against a debt due from the decedent to the account- ing party, or any other cause of action, in favor of the latter against the decedent, is suspended, unless the accounting party was appointed upon the revocation of former letters issued to an- other person ; in which case, the running of the statute is so sus- pended, from the grant of letters to him, until the first judicial settlement of his account. After the first judicial settlement of the account of an executor or administrator, -the Statute of Limi- tations begins again to run against a debt due to him from the decedent, or any other cause of action in his favor against the decedent." ''* The statute does not run between the decedent's death and the first judicial settlement of the executor's account, although the period of such suspension continues more than six years succeeding one year after the granting of letters.^-"^ 69 Matter of Freeman, N. Y. Law decedent, it was held, that the plain- J., July 11, 1891. "As a condition of tiff was not required to prove non- receiving the benefits which the stat- payment of the sum due; that pay- utes accord to a creditor thus present- ment was an affirmative defense, the ing his claim, he must make the proof burden of establishing which was therein set forth, if required by the upon the defendant. See Matter of personal representative; but if the Rowell, 45 App. Div. 323; Hicks v. claim is rejected, the Revised Stat- Walton, 14 id. 199. utes require no other or different evi- to Co. Civ. Proc, § 2731, as amended dence than would be necessary in an 1895 (former § 2739). See Treat ordinary suit to recover upon a v. Fortune, 2 Bradf. 116; Moyer similar contract or claim, in vrhieh v. Weil, 1 Dem. 71; Matter of Gard- no personal representative was inter- ner, 5 Eeaf. 14. The statute does not ested." (lb., per Ransom, S.) See apply to a debt due a third person, Matter of Maeomber, 31 St. Rep. 963; and assigned to the executor. (Mat- aflfd., 33 id. 912. In Lerehe v. Brasher ter of Robbins, 17 Misc. 264.) (104 N. Y. 161), which was an action Tl Matter of Powers, 124 N. Y. 361; by an administrator to recover com- 36 St. Rep. 347; O'Flyn v. Powers, pensation for services rendered to the 136 N. Y. 412; 21 N. Y, Supp. 905. §§ 645, 646. Administeation of Estate, Etc. 534 SUBDIVISION 3. DETEEMIM^ING DISPUTED CLAIMS. § 645. Accepting or rejecting claims — The executor or admin- istrator ought to decide upon the claims presented to him with reasonable dispatch. He may reject the claim outright, or he may settle it by compromise.''^ If he has reason to doubt the justice of the claim, he may agree to a determination thereof by the surro- gate upon his accounting or he may consent to refer it to a ref- eree, to hear and determine, or he may admit some items of the claim and reject others so as to set the Short Statute of Limita- tions running.''^ On the other hand, it is of the first importance, to the creditor, to know explicitly whether, and if so when, his claim is rejected, and whether the representative consents to a judicial determination thereof. For in case the claim is disputed or rejected, and a consent to the determination of the same by the surrogate is not filed, the creditor's right of action on the claim, if it, or any part of it, is then due, is barred after six months from such dispute or rejection.''* The creditor is barred, not only of his action against the representative, but also of every other remedy to enforce payment, out of the decedent's property.'^ § 646. Short limitation of action on rejected claim. — The statute provides, that " where an executor or administrator disputes or rejects a claim against the estate of the decedent, exhibited to him. either before or after the commencement of the publication of a notice requiring the presentation of claims, as prescribed by law, unless a written consent shall be filed by the respective parties with the surrogate, that said claim, may be heard and determined by him upon the judicial settlement of the accounts of said execu- tor or administrator, as provided by section 2743, the claimant must commence an action, for the recovery thereof, against the ex- ecutor or administrator, within six months after the dispute or re- 72 As already pointed out (am,te, 73 Wintermeyer v. Sherwood, 77 § 629), the representative may, un- Hun, 193; 28 N. Y. Supp. 449. der the authority of the surrogate, 74 Co. Civ. Proe., § 1822, as amended compromise or compound a debt due 1895. The court has power, upon the to the estate, but no provision is made accounting, to determine whether a for the submission to the surrogate claim against the estate has been re- for his direction in regard to the jected or admitted by the accounting compromise of debts due hy the estate, executor. ( Browne v. Lange, 3 How. The representative must, therefore, Pr. (N. S.) 162; Matter of Von der rely upon his own judgment in Lieth, 25 Misc. 255; 55 N. Y. Supp. settling such an indebtedness. 428.) 75Selover v. Coe, 63 'N. Y. 438. 535 Admististeation op Estate, Etc. §§ 647, 648. jeetion, or, if no part of the debt is then due, within six months after a part thereof becomes due; in default whereof, he, and all persons claiming under him, are forever barred from maintaining such an action thereupon, and from every other remedy to enforce payment thereof, out of the decedent's property." ''^ The statute is said to be highly penal, and must, therefore, be strictly con- strued.'^ In general, the statute may be said to apply to any claim, provable under the notice to creditors, e. g., a contingent claim,''* or a claim for funeral expenses.™ § 647. When statute begins to run — Under the statute, as it has stood since the amendment of 1882, publication of notice to creditors is not necessary to set running the period of limitation f^ the limitation applies to demands exhibited to the representative either before or after the commencement of the publication of the notice. Claims may be presented at any time after the representa- tive qualifies and enters upon the discharge of his duties; and the eilect of his decision on the claim is the same, whether pre- sented before or after publication of such notice.*^ § 648. What amounts to a rejection of claim. — There must be decisive evidence of the rejection of the claim, before the statute will be held to apply. *^ The disputing or rejecting must be un- equivocal; refusing to pay as at present advised, and asking par- ticulars, is not disputing, within the statute.** Mere silence on the 76 Co. Civ. Proc, § 1822, as amended given to the original statute. (Tucker 1895. See 2 R. S. 89, § 38. This v. Tucker, 4 Abb. Ct. App. Dec. 428; statute does not apply where the exec- 4 Keyes, 136; Plagg v. Ruden, 1 utor was, at testator's death, and has Bradf. 192.) But now the rule is continued to be, a nonresident. (Hay- changed as above. See Cramer v. den V. Pierce, 144 N. Y. 512.) Bedell, 27 Week. Dig. 340. The entry 7T Elliot V. Cronk, 13 Wend. 35. of an order of reference is the com- T8 Cornes v. Wilkin, 79 N. Y. 129 ; meneement of an action for the pur- Hoyt V. Bonnett, 50 id. 538. pose of determining the period of raKoons v. Wilkin, 2 App. Div. limitation. (Leahy v. Campbell, 70 13; 37 N. Y. Supp. 640. As to th^ App. Div. 127; 75 N. Y. Supp. 72.) meaning of " debts " and " creditor," 81 Field v. Field, 77 N. Y. 294. see Co. Civ. Proc, § 2514, subd. 3, as When the claim is absolutely re- amended 1900. jected, suit may be brought at once. SOSnell V. Dale. 43 St. Rep. 498; (Matson v. Abbey, 70 Hun, 475; 141 17 N. Y. Supp. 575; Wintermeyer v. N. Y. 179.) Sherwood, 77 Hun, 193; 28 N. Y. 82 Reynolds v. Collins, 3 Hill, 36. Supp. 449. But see Ulster County 83 Hoyt v. Bonnett, 50 N. Y. 538; Sav. Inst. V. Young, 161 N. Y. 23; 55 overruling in effect, Cooper v. Felter, N. E. 483, containing obiter remarks 6 Lans. 485. In Cooper v. Felter it to the contrary. Prior to the amend- was held, that if, upon the presenta- ment of 1882, the limitation applied tion of a claim, an executor does not only to demands exhibited after the admit or reject it, he must be re- commencement and before the com- garded as disputing it. There is also pletion of the publication of notice to a dictum to the same effect in Tucker creditors; that being the construction v. Tucker, 4 Abb. Ct. App. Dec. 428; §648. Administkation of Estate, Etc. 536 part of the representative does not authorize the inference that the claim has been admitted.^* Even an unreasonable delay in object- ing to a claim does not preclude the defense of the Statute of Limi- tations, in an action on the claim.^^ A mere neglect to pay an hon- est debt upon demand, or even a refusal to pay it, if put upon any other ground than that the debt, or some part of it, is not legally or equitably due, is not a disputing or rejection within the statute.*® The rejection may be oral, or in writing,*' but, however expressed, it must be made to the claimant personally, or to his au- thorized agent;** merely filing it is not sufficient.** Service of a written notice may be made, instead of personally, by leaving it at the claimant's place of residence or otherwise, as prescribed by section 979 of the Code.^" 4 Keyes, 136. In Hoyt v. Bonuett, the plaintiffs presented to the execu- tors certain claims against the estate. The latter caused to be served upon the former a written notice, stating in substance that, as at present ad- vised, they declined to pay the claims, and stated that as they had no other means of information, they would be greatly obliged if the plaintiflFs would furnish them with a bill of particu- lars. No action was commenced by plaintiffs within six months after the service of notice, nor did they make any offer to refer. In the account presented by defendants, upon their final accounting, plaintiffs' claims were omitted. They appeared and objected to the account upon that ground. The surrogate overruled the objection, passed the accounts, and de- creed distribution without reference to plaintiffs' claims. Held, error ; that defendants had not disputed or re- jected the claims so as to put the statute in operation, and the action was not barred. In Matter of Miller (27 St. Rep. 784; 9 N. Y. Supp. 60), upon the presentation of a verified claim to the executor by the claimant, a conversation was had in reference thereto, but it was not clear that the claimant would have understood from it that his claim was rejected. Held, that the executor could not rely on such conversation as a legal rejection of the claim, within the meaning of the statute, especially as it also ap- peared that the executor himself, by subsequently serving a formal rejec- tion, did not regard the conversion as final. See Spencer v. Hall, 30 Misc. 75; 62 N. Y. Supp. 826. In Matter of Eichman (33 Misc. 322; 68 N. Y. Supp. 636), a written notice that the executors " doubt the justice of the claim " and offering to refer, was held not to amount to a dispute and rejec- tion. 84 Matter of Callahan, 152 N. Y. 320; Schutz v. Morette, 146 id. 137; 66 St. Rep. 271; Matter of Pierson, 19 App. Div. 478 ; 46 N. Y. Supp. 557 ; Matter of Doran, 38 id. 544; 73 St. Rep. 593. In Matter of Whitney ( 39 St. Rep. 899; 15 N. Y. Supp. 468), a claim rejected by executors, two years after it was presented, was held to have been properly considered as a " disputed claim." To the same effect, Matter of Edmonds, 47 App. Div. 229 ; 62 N. Y. Supp. 652. See contra, Mat- ter of Miller, 27 St. Rep. 784 ; 9 N. Y. Supp. 60. ss Bueklin v. Chapin, 1 Lans. 443. S6Kidd V. Chapman, 2 Barb. Ch. 414. 87 Peters v. Stewart, 2 Misc. 357; 21 N. Y. Supp. 993. The rejection may be by written notice, signed by the attorney of the representative, done at the latter's request. (Selover v. Coe, 63 N. Y. 438; Wintermeyer v. Sher- wood, 77 Hun, 193; 28 N. Y. Supp. 449.) 88 An agent of the creditor who, un- der authority, presented the claim to the representative, has like authority, on behalf of the creditor, to receive notice of the rejection of the claim. See Peters v. Stewart, supra. 89 Potts V. Baldwin, 67 App. Div. 434; 74 N. Y. Supp. 655. 90 Peters v. Stewart, supra. 537 Administration of Estate, Etc. §§ 64:9, 650. § 649. Waiver of statute — Prior to the amendment of 1895, the reference of the claim was necessary in order to avoid the short statute, and it was held that the representative's offer to refer, though accepted by the claimant, if not followed by an actual sub- mission, was not a waiver of the statute. To constitute such a waiver, the offer should be accepted within the six months, and this followed by an actual submission.^^ This principle, it would seem, is still applicable. Where an executor, to whom a claim was presented, rejected it, but afterward entertained negotiations in reference to settlement, and procured delay, it was held, that the first rejection could not be deemed to make effectual the statute bar, but must be deemed waived by the subsequent acts of the executor, and that the statute only began to run from the time when he finally rejected the demand. ^^ But where the claim is once rejected, the statute cannot be evaded by successive presenta- tions, though varying in form and detail.®^ Where the executor or administrator admits the validity of a debt, by paying the in- terest from time to time, or a part of the principal, it is tantamount to a formal admission of its justice, upon presentment under the notice.^ After account filed and a hearing and report thereon, the representative cannot serve a notice rejecting a petitioner's claim, as the account is equivalent to an admission thereof.®^ § 650. Reference of disputed claims. — If a consent to the deter- mination of the claim by the sxirrogate is not filed, the latter, of course, has no further power respecting it, and the creditor must resort to another remedy. " If the executor or administrator doubts the justice of any claim presented, he may enter into an agreement in writing with the claimant, to refer the matter in con- troversy to one or more disinterested persons, to be approved by the surrogate. On filing such agreement, and approval of the surrogate, in the office of the clerk of the Supreme Court in the county in which the parties, or either of them, reside, an order shall be entered by the clerk, referring the matter in controversy to the person or persons so selected." *® The agreement to refer should present substantially the issue between the parties. It is 91 Comes V. Wilkin, 79 N. Y. 129; wood, 77 Hun, 193; 28 N. Y. Supp. Snell V. Dale, 43 St. Rep. 498; 17 449. N. Y. Supp. 575. See Bank of Fish- 9* Johnson v. Corbett, 11 Paige, 265. kill V. Speight, 47 N. Y. 668. 95 Wright v. Beirne, 2 Dem. 539. 92 Calanan v. McClure, 47 Barb. 96 Co. Civ. Proc, § 2718, as amended 206; Adler v. Davis, 31 Misc. 47; 63 1893; adopting and modifying 2 E. S. N. Y. Supp. 241. 88, § 36, as amended L. 1859, u. 261, 93 Titus V. Poole, 145 N. Y. 414; 65 § 2. St. Eep. 344; Wintermeyer v. Sher- §§ 651, 652. Administeation of Estate, Etc. 538 a substitute for the pleadings in an ordinary action.®^ Only those claims can be referred which the representative is legally compe- tent to adjust and settle;®^ consequently, a personal claim of the representative against the decedent is not referable, though all the parties consent thereto.*^ Several claims of different indi- viduals cannot be united in one claim and referred.' § 651, Steps necessary to confer jurisdiction. — To confer juris- diction, the necessary steps are (1) the agreement to refer, (2) ap- proval by the surrogate, and (3) the filing thereof, and entry of the order of reference in the proper office.^ A substantial com- pliance with the terms of the statute is enough to confer juris- diction on the referee, to decide the controversy, and on the court to confirm his report. Thus, an order signed by the surrogate, reciting the presentation of the claim, and that the parties had agreed to a reference, and a consent to the order signed by the attorneys on behalf of the parties, amount to an agreement in writing to refer, which is sufficient under the statute. The naming of the referee in the order is sufficient evidence that he was ap- proved by the surrogate.* The order should be entitled in the Supreme Court, though it is no objection that it was entitled in the Surrogate's Court. The order and agreement should be filed with the county clerk, but it may be filed nunc pro tunc, to sustain the judgment on the referee's report.* § 652. Naming the referee. — Although a reference can be di- rected only on consent, the court can appoint another person as referee, in the place of the one agreed on, but declining to act; unless the stipulation provides otherwise.^ Where the contro- 97 Woodin V. Bagley, 13 Wend. 453. 2 Wait v. Van Demark, 18 St. Eep. An agreement between the executor 1 ; 2 N. Y. Supp. 265. and a creditor to " submit " the mat- 3 Bucklin v. Chapin, 53 Barb. 488 ; ter in controversy to certain persons 35 How. Pr. 155. An executor who to " determine and award " upon the consents to a reference and partici- same, and that judgment shall be en- pates in the proceedings until the tered " upon such award and determi- final submission, thereby waives an ob- nation," is not an agreement, under jeetion that the stipulation was ap- the statute, to refer. (Akely v. Akely, proved by the surrogate of the wrong 17 How. Pr. 21.) county, and a motion to vacate the S8 See § 637, ante; Van S'looten v. reference on that ground is too late. Dodge, 145 N. Y. 327; 64 St. Rep. 682. (Montgomery v. Burgess, 92 Hun, See Shorter v. Mackey, 13 App. Div. 289; 36 N. Y. Supp. 711.) 20; 43 N. Y. Supp. 112. 4 Bucklin v. Chapin, supra. See 93 Shakespeare v. Markham, 10 Hun, Comstock v. Olmstead, How. Pr. 77 ; 311 ; affd., 72 N. Y. 400. Robert v. Ditmas, 7 Wend. 522. 1 Myers v. Cronk, 45 Hun, 401; 6 Hustis v. Aldridge, 144 N. Y. 508 ; aflfd., 113 N. Y. 608, where it was also 64 St. Rep. 40, thus overruling Le- held, that, in this proceeding, the eoeq v. Pottier, 65 Hun, 598, so far referee could not decree the specific as that case holds the contrary, performance of a contract. 539 Administration of Estate, Etc. § 653. versy before the original referee, named in the agreement, has proceeded to a decision and report by him, it may thereafter be treated as one in an action in which the court, on setting aside the referee's report, may direct a reference, without consent, to an- other referee; the original consent and reference having been a waiver of a trial by jury.® § 653. Proceedings before referee. — It is not necessary to give notice of the proceeding to beneiiciaries under the will or to next of kin.^ The reference is to proceed as in an ordinary action.* The statute declares, that " the same proceedings shall be had in all respects, the referees shall have the same powers, be entitled to the same compensation, and subject to the same control, as if the reference had been made in an action in which such [Supreme] court might by law direct a reference." ^ It is stated, generally, that claims against a deceased person not presented to him during his lifetime, but sought to be enforced against his estate, after death, are to be carefully scrutinized, and only admitted upon satisfactory proof.-'" The referee should determine the claim, upon the whole case presented ; and if enough does not appear to authorize the submission of the case to a jury, it should be dis- missed.-'^ The representative standing upon his denial, in the agreement to refer, of the justice of the claim, may make any de- fense that the decedent might have made if alive, and as if the same were properly pleaded in an action brought upon the claim.^* s Adams v. Brady, 67 Hun, 521; 22 isted until decedent's death. (Matter N. Y. Supp. 466; Hasten v. Buding- of Mallory, 13 Misc. 595; 35 IST. Y. ton, 18 Hun, 105. See Rayror v. Supp. 155.) See Van Wagner v. Laux, 28 id. 35. Royce, 46 St. Rep. 380; 19 K Y. 7 Mayer v. Gilligan, 2 St. Rep. 702. Supp. 143. Conversations and admis- 8 Testimony of a witness out of the sions by decedent are unsatisfactory State may be taken by commission, evidence. (lb.) ; S. P., Hewlett v. (Paddock v. Kirkham, 102 N. Y. 597.) Jewesson, 46 St. Rep. 144; 19 N. Y. 9 Co. Civ. Proc, § 2718, as amended Supp. 193. See Gallagher v. Brews- 1893. ter, 153 N. Y. 364; Kellogg v. Ogden, 10 Kearney v. McKeon, 85 N. Y. 27 App. Div. 214; Matter of Smith. 137; Ulrieh V. Ulrieh, 42 St. Rep. 216; 1 Misc. 253; 22 N. Y. Supp. 1025. Yates V. Root, 4 App. Div. 439; 38 The rule that uncontradicted testi- N. Y. Supp. 663; Winne v. Hills, 91 mony of a disinterested witness is to Hun, 89; 36 N. Y. Supp. 683; Hughes be taken as true and cannot be disre- V. Davenport, 1 App. Div. 182; 37 garded, does not apply to a claim N. Y. Supp. 243 ; Rowland v. Howard, against a decedent's estate. ( Hughes 75 Hun, 1; 26 N. Y. Supp. 1018; Van v. Davenport, supra.) Slooten V. Wheeler, 140 N. Y. 624; 55 n Forbes v. Chichester, 30 St. Rep. St. Rep. 554; Wheeler v. Eastwood, 370; 8 N. Y. Supp. 747. 88 Hun, 160; 34 N. Y. Supp. 513; 12 McLaughlin v. Webster, 141 K Y. O'Neill V. Barry, 20 App. Div. 121; 76: 59 St. Rep. 541. By making the 46 N. Y. Supp. 752; Matter of Pearl, stipulation to refer, the executor is 62 App. Div. 519. But the rule does estopped from denying that his testa- not apply where no right of action ex- tor left a will, and that letters testa- § 654. AuMIIflSTEATION OF ESTATE, EtC. 540 As the agreement to refer need not notice matters of defense to the claim, every species of legal proof adapted to show the injus- tice of the claim, or its invalidity as a whole, or in degree or amount, is admissible on the hearing, including set-off,^^ estoppel,^* payment in whole, or in part,^^ and the Statute of Limitations.-^* And, as no pleadings are used in these proceedings,^'^ the court will examine the proofs made by the parties, in order to ascertain the grounds of recovery or defense.''* § 654. Effect of the amendment of 1893. — Before the readop- tion of the original statute into the Code in 1893, with the added provision that on the entry of the order of reference, " the pro- ceeding shall become an action in the Supreme Court," ^^ the reference, under the statute, was declared to be a special proceeding and not an action; that it was founded solely upon the statute, and, therefore, the referee possessed only those powers which were expressly conferred thereby or were fairly inferable from its pro- visions.^" Hence he had no power over the subject of costs ;^^ could not render an affirmative judgment on a counterclaim in favor of the estate (defendant) f^ could not require a bill of par- ticulars, or allow the plaintiff for items of an account, not covered by the claim presented to the representati-\'e f^ and could not allow an amendment of the claim or vary the matter referred.^* The i mentary were issued to him. (Ban- 199; 43 N. Y. Supp. 541. The declara- field V. Rumsey, 4 Sup. Ct. [T. & C] tion of the claimant, while decedent 322.) was alive, that payment had been 13 It seems, the proper course is for made, is enough to warrant its disal- the personal representative to bring lowance. (Stark v. Eobbins, 2 App. an action or put the claimant to an Div. 615; 38 N. Y. Supp. 48.) To the action, as it is uncertain whether, hav- same effect, Crawford v. Ormsbee, ing set oflf part of such a demand, the supra. representative can bring any action 18 Tracy v. Suydam, 30 Barb. 110; for the residue. (Mowry v. Peet, 88 Converse v. Miner, 21 Hun, 367. But IST. Y. 453.) A joint obligation against the objection must be taken before claimant and another cannot be set judgment, not on appeal. (Faburn v. off. (Matter of Miller, 23 Misc. 319.) Dimon, 20 App. Div. 529; 47 N. Y. See § 569, ante. As to set-offs to Supp. 227.) claims of creditors, when presented on IT Rutherford v. Soop, 85 Hun, 119; the judicial settlement, of a trustee's 32 N. Y. Supp. 636. account, under Co. Civ. Proc, § 2812, 18 Eaynor v. Laux, 28 Hun, 35. see Matter of Mitchell, 61 Hun, 372; 19 Co. Civ. Proc, § 2718, as amended 16 N. Y. Supp. 180. 1893. 1* Crawford v. Ormsbee, 6 App. Div. 20 Roe v. Boyle, 81 N. Y. 305. See 50; 39 N. Y. Supp. 740. Paddock v. Kirkham, 102 id. 599. 15 Although slight proof of payment 21 Smith v. Velie, 60 N. Y. 106. may defeat the claim, some proof must 22 Mowry v. Peet, 88 N". Y. 453. be given. (Steinan v. Scheuer, 15 23 Townsend v. N. Y. L. Ins. Co. App. Div. 5; 43 N. Y. Supp. 1112; (Ct. of App.), 4 Civ. Proc. Rep. 398. Matter of Rowell, 45 App. Div. 323; 24 Eldred v. Eames, 115 N. Y. 401; 61 _ N. Y. Supp. 382.) See Hicks- 26 St. Rep. 277. In that ease, it was Alixanian v. Walton, 14 App. Div. held error for the referee to allow, 541 Administration of Estate, Etc. § 654. distinction between statutory references and others, -whioh is in- herent in the nature of the proceeding, Avas declared not oblit- erated by the general language of the statute giving referees therein the same powers possessed by referees in actions. " While the statements and proceedings stand in lieu of pleadings, they still are not pleadings, and are not governed in all respects by the same rules which apply to the construction and ofEce of pleadings in an action." ^^ It was further held, that, as a statutory proceed- ing, the only authority for a judgment therein was the report of the referee, to be first confirmed by the court,^® and that the suc- cessful plaintiff was not entitled, as of right, to taxable costs as in an action, or even as in a special proceeding, under the Code, the provisions of which relating to costs did not apply to a refer- ence of this kind, the plaintiff being only entitled, as a matter of right, to recover his disbursements as allowed by the Eevised Statutes. ^^ On the other hand, it had been loosely stated that as the filing of the agreement, with the approval of the surrogate, was, " in effect, a mode of commencing an action " by the cred- itor, he was liable for costs in ease of faihire to recover, the same as unsuccessful plaintiffs in other actions f^ and again, that the reference " stood in the place of an action," and that the entry of the order of reference was to be deemed the commencement' of an action, for the purpose of determining whether, under the Statute of Limitations, an action had been brought within the time limited thereby.^^ Upon the amendment taking effect, the question necessarily arose whether the " inherent distinction " between this kind of statutory reference and references in ordinary actions, was de- stroyed by the provision which declares the proceeding to be an under objection and exception, the Denise v. Denise, 110 id. 562; Krill v. plaintiff to witlidraw several large Brownell, 40 Hun, 72; Hatch v. Stew- items of the claim on the credit as art, 42 id. 164; Hallook v. Bacon, 64 well as the debit side of Ms account, id. 90; 45 St. Rep. 485; Matter of It was held, however, in another case, McQueen, 58 Hun, 172; 33 St. Rep. that the omission to specify interest 807; Vaughn v. Strong, 66 Hun, 278; in the presentation of the claim did 21 N. Y. Supp. 154; Roberts v. Pike, not prevent its recovery on the refer- 13 id. 559; 19 Civ. Proo. Rep. 422. ence. (Fredenburg v. Biddlecome, 17 ZSMunson v. Howell, 20 How. Pr. Week. Dig. 25. ) See Morrell v. Van 59 ; 12 Abb. Pr. 77 ; Linn v. Clow, 14 Buren, 77 Hun, 569 ; Von Hermanni v. How. Pr. 508 ; Boyd v. Bigelow, id. Wagner, 81 id. 431. 511. 25 Per Ruger, C. J., in Eldred v. 29 Bucklin v. Chapin, 1 Lans. 443; Eames, supra. Tracy v. Suydam, 30 Barb. 110; San- 26 Smith V. Velie, 60 N. Y. 106; Coe ford v. Sanford, 4 Sup. Ct. (T. & C.) V. Coe, 37 Barb. 235 ; 14 Abb. Pr. 86 ; 686 ; Leahy v. Campbell, 70 App. Div. Radley v. Fisher, 24 How. Pr. 404. 127 ; 75 N. Y. Supp. 72. 2T Larkins v. Maxon, 103 N. Y. 681 ; § 655. Administration of Estate, Etc. 542 action. An opinion may be ventured that it was the intention of the Legislature, by the clause in question, to supersede the set- tled rule, above stated, that referees, in these proceedings, had only limited powers, and could not vary the matter referred. Thus, it is now within the power of the referee to allow an amendment of the claim,^" to consider those of an equitable nature,^' and to adjudicate upon the question of costs.^^ One object of the pro- vision seems to have been to settle the much-vexed question as to costs in these proceedings, and the applicability thereto of that provision of the Oode which specifies the cases in which costs may be awarded against an executor or administrator in a civil action in which he is an unsuccessful defend ant.^^ Another object clearly was, to do away with the practice under the Revised Statutes, which continued to govern this proceeding, in accordance with which, before judgment, a rule nisi was entered, and either party dissatisfied could move to set aside the report; if the court refused to set aside the report, judgment was rendered.^* The practice, in this respect, is now assimilated to that in ordinary actions. It is no longer necessary to move to confirm the re- port, as heretofore;^ but "judgment may be entered on the report of the referee, and such shall be valid and effectual in all respects as if the same had been rendered in a suit commenced by the ordinary process, and the practice on appeal therefrom shall be the same as in other civil actions." ^* § 655. Referee's report, and judgment thereon — The referee is to report to the Supreme Court, making findings of fact and con- clusions of law, as in ordinary actions.^''^ As noted above, the old practice, under the Revised Statutes, according to which judg- ment could be entered only by order of court, on motion, has been superseded by the amendment of 1893.^* The only way to obtain 30 Lee V. Lee, 85 Hun, 588 ; 33 N. Y. 35 Jenkinson v. Harris, supra. See Supp. 115; Lounsbury v. Sherwood, Eadley v. Fisher, 24 How. Pr. 404, 53 App. Div. 318; 65 N. Y. Supp. 676. and § 656, post. 31 Matter of Zinke, 90 Hun, 127; 36 Co. Civ. Proc, § 2718, as amended suh nom. Zinke v. Zinke, 35 N. Y. 1893. Supp. 645. 37 Shea v. Cornish, 29 Abb. N. C. 32 Jenkinson v. Harris, 27 Misc. 289; 22 N. Y. Supp. 168; Matter of 714; 59 N. Y. Supp. 548; Fisher v. Sunderlin, 23 id. 648. Bennett, 21 Misc. 178 ; 47 N. Y. Supp. 38 The court had no power to order 114. judgment against the report of the 33 Co. Civ. Proc, §§ 1835, 1836. referee. It had to be confirmed, and "In determining questions of costs, judgment ordered thereon, or be set the referee shall be governed by " aside ; in which case a new trial fol- these sections. (Co. Civ. Proc, § 2718, lowed before the same referee, or an- as amended 1893.) See § 656, post. other appointed in his place. (Coe v. 34 Graham's Practice, 576; Boyd v. Coe, 14 Abb. Pr. 86; 37 Barb. 232.) Bigelow, 14 How. Pr. 511. In Sharpe v. Freeman (45 N. Y. 802), 543 Administration of Estate, Etc. § 656. a review of the rulings of the referee was by motion made, at Special Term, on a case and exceptions, to set aside the report, or for a new trial; or by an appearance and exceptions taken on the confirmation of the report.^'' But now judgment may be entered on the report by the clerk, as in other actions. The rule that the referee had no power to pass upon the question of oosts^ that matter being for the court to determine, upon a special applica- tion, showing the facts on which a right to costs was based,*" no longer exists. Formerly, an appeal, if taken, was from the order of the Special Term confirming the referee's report and not merely from the judgment entered on it;*^ but now the practice is the same as in other civil actions. § 656. Awarding costs and disbursements to successful party. — The Code amendment of 1893 put to rest a question frequently raised, and differently determined, whether the successful claim- ant was entitled to costs and disbursements in these proceedings as a matter of right, as in ordinary actions, or whether both costs and disbursements, or, if not both, which, were discretionary. It was early held,*^ under the Revised Statutes,*^ that costs in these proceedings could be awarded to the creditor only where he would be entitled to costs in an action on his claim against the representative; that the statute was the only authority for giving costs at all, and that there was no reason in the nature of the proceeding, nor growing out of the policy of the statute, why costs should be given in an action, and withheld in this sort of proceed- ing, and, finally, that the conditions precedent to the right of the court to award costs in an action against executors, as prescribed by the statute, were equally controlling on the question of award- ing costs in this proceeding. It was consequently held, that the statutory condition — e. g., that the representative had unreason- ably resisted or neglected to pay the claim — must be shown to' it was held, that the judgment entered ply to this proceeding. (Denise v. did not render the claim a judgment Denise, 110 N. Y. 562.) debt as to the grantee of heirs-at-law, *o Smith v. Randall, 67 Barb. 377 ; and did not preclude the heirs from Mersereau v. Ryerss, 12 How. Pr. 300 ; setting up the Statute of Limitations Howe v. Lloyd, 2 Lans. 336 ; Morgan to the claims upon which it was re- v. Skidmore, 3 Abb. N. C. 92 ; Hall v. covered. Brennan, 64 Hun, 394; 19 N. Y. Supp. 39 Baumann v. Mosely, 63 Hun, 492 ; 623. See § 654, ante. For provi- 18 N. Y. Supp. 563; Schreyer v. Hoi- sions as to the award of costs, see borrow, 63 How. Pr. 229; Raynor v. § 656,>o«t. Laux, 28 Hun, 35. See Godding v. « Hatch v. Stewart, 42 Hun, 164. Porter, 17 Abb. Pr. 374. The provi- *2 Robert v. Ditmas, 7 Wend. 522. siou of Code (§ 1002), that a trial by 43 2 R. S. 90, § 41; substantially re- a referee cannot be reviewed by a mo- enacted by §§ 1835, 1836, of the Code tion for a new trial, etc., did not ap- of Civil Procedure, § 656. Administratioin- of Estate, Etc. 544 have been violated by the representative^ to entitle the claimant to costs. That is to say, neither in an action nor in this proceed- ing was the representative liable to costs unless he was guilty of a violation of some duty.** This is now made the rule under the present practice, by the provision that the question of costs, in this proceeding, shall be governed by sections 1835 and 1836 of the Code;*^ a provision which supersedes a number of decisions on this point;*"- — ^ rulings that the court had no power, in these proceedings, to grant an extra allowance, or anything more than 44 Robert v. Ditmas, 7 Wend. 522; scribed by law, requiring creditors to also Carhart v. Blaisdell, 18 id. 531. present their claims, and that the pay- By the Code of Procedure (old Code) ment thereof was unreasonably re- no provision was made as to costs in sisted or neglected, or that the defend- these proceedings, and the Legislature ant did not file the consent provided seems to have intended that no costs in section 1822 at least ten days be- at all could be awarded therein, if we fore the expiration of six months from may draw an inference from an inter- the rejection thereof, the court may polation in section 317, which pro- award costs against the executor or vided that " whenever any claims administrator, to be collected either against a deceased person shall be re- out of his individual property, or out ferred, pursuant to the provisions of of the property of the decedent, as the Revised Statutes, the prevailing the court directs, having reference to party shall be entitled to recover the the facts which appear upon the trial, fees of referees and witnesses and Where the action is brought in the other necessary disbursements, to be Supreme Court, the facts must be eer- taxed according to law." (So held in tified by the judge or referee, before Van Siekler v, Graham, 7 How. Pr. whom the trial took place." (§ 1836, 208; Avery v. Smith, 9 id. 349. Con- as amended 1897.) ira, Linn v. Clow, 14 id. 508; Radley « In Denise v. Denise (110 N. Y. V. Fisher, 24 id. 404. See Pursell v. 562 ) , it was held, that the conditions Fry, 19 Hun, 595; 58 How. Pr. 317.) of section 1836, on which alone a rep- This clause of section 317 of the old resentative, or the estate, can be Code is not found in the present Code charged with costs in an action, do of Civil Procedure; but it was not re- not control the court in the matter of pealed by the General Repealing Act costs in a special proceeding of this of 1880 (c. 245), and was in full force kind; and that the court has power and effect (Larkins v. Maxon, 103 to award costs to a successful creditor N. y. 680 ; Krill v. Brownell, 40 Hun, on a reference of his claim, notwith- 72 ; Hatch v. Stewart, 42 id. 164 ; standing he had violated one of the Overheiser v. Morehouse, 16 Abb. N. conditions of section 1836, to wit, C. 208; Sutton v. Newton, 15 id. 452; in not haiang presented his claim Hale v. Edwards, 67 How. Pr. 262. " within the time limited by a notice Oonirn, Miller V. Miller, 32 Hun, 481; published as prescribed by law, re- Daggett V. Mead, 11 Abb. N. C. 116), quiring creditors to present their until the amendment of 1893. And claims." As this decision was inter- see Osborne v. Parker, 66 App. Div. preted, the court had no power in 277 ; 72 N. Y. Supp. 894. these proceedings to award any costs 45 " Where a judgment for a sum of at all, as such, but only the fees of money only is rendered against an ex- the referee and necessary disburse- ecutor or administrator, in an action ments, to which the party is entitled brought against him in his repre- as a right under section 317 of the old sentative capacity, costs shall not be Code. (Hendricks v. Isaacs, 52 Hun, awarded against him, except as pre- 100, and cases supra.) It was so scribed in the next section " ( § 1835 ) . held, also, in some cases, under the " Where it appears, in a case specified Code of Procedure. ( Van Siekler v. in the last section, that the plaintiff's Graham, 7 How. Pr. 208. But see demand was presented within the time contra, Linn v. Clow, 14 id. 508; Rad- limited by a notice, published as pre- ley v. Fisher, 24 id. 404.) 545 Administeatiojst of Estate, Etc. § 657. Ms disbursements, to a successful defendant, the representative.*^ As the proceeding is no longer " a special proceeding," the Code provision — that costs therein " may be avsrarded to any party, m the discretion of the court, at the rates allowed for similar ser- vices in an action brought in the same court " ** — does not apply. § 657. When costs allowed and by whom As the right to re- cover costs in these proceedings is now the same as in actions against an executor or administrator on a claim which he refused to pay, the Code provisions*® regailating costs in such actions are properly mentioned here. Where a judgment for a sum of money is awarded against the representative, in an action against him, the statute prescribes certain conditions precedent to the right of the plaintiff to recover costs, to wit: it miist appear (1) that the plaintiff's demand was presented within the time limited by the public notice, and (2) that payment was unreasonably resisted or neglected, or (3) that the defendant failed to file a consent to the determination thereof by the surrogate within a certain time."" 4T Hopkins v. Lott, 111 N. Y. 577; not apply to these proceedings, though Van Sickler v. Graham, 7 How. Pr. sections 1835, 1836, 3246 did. In 208 ; Walker V. Gardener, 8 Misc. 468. Hearn v. Sullivan (13 Abb. N. C. Contra, Munson v. Howell, 20 id. 59; 371), costs in addition to disburse- Newton v. Sweet, 4 How. Pr. 134. It ments were awarded, as allowable un- is settled that since the amendment a der section 3240. In Vaughan v. successful defendant is entitled to Strong (66 Hun, 278; 21 N. Y. Supp. costs as of right. (Adams v. Olin, 78 154), it was held not proper to direct Hun, 309; 29 N. Y. Supp. 131; Winne that costs, if allowed, be the same as V. Hills, 91 Hun, 89; 36 N. Y. Supp. in an action; that the same rule 683.) In Hendricks V. Isaacs (52 Hun, should apply as in an action against 100; 22 St. Rep. 563; revd., on other executors and administrators, and points, 117 ]Sr. Y. 411), the claim- where such claim is not unreason- ant having succeeded on a new trial, ably resisted, the successful claimant granted on defendant's appeal, with should only recover his disburse- costs to him in the event of his sue- ments; that section 3240 of the Code cess on such new trial, the claimant applied to such a proceeding, and that was held entitled to recover such eostsi where the claim was unreasonably It may be noted that (in July, 1889). contested the court might award costs, after the decision of Hendricks v. in addition to the disbursements which Isaacs (supra), the same General the prevailing party is entitled to un- Term (Bertholf v. Carr, 24 St. Rep. der section 317 of the old Code of 805) concluded to follow Miller v. Procedure. Miller 32 Hun, 481) —which has been « Co. Civ. Proc, §§ 1835, 1836. frequently discredited — and held, that See Henning v. Miller, 83 Hun, 403; section 3246 of the present Code was 31 N. Y. Supp. 878; Ellis v. Filon, a substitute for section 317 of the 85 Hun, 485; 33 N. Y. Supp. 138; Code, of Procedure, and that section Mulligan v. Cannon, 25 Civ. Proc. Rep. 3246 did not give to the successful 349. claimant the right given him by the 50 This condition takes the place of old Code to his disbursements. See the executor's " refusal to refer," eon- Krill V. Brownwell, 40 Hun, 72, and tained in section 1836, prior to the cases supra. amendment of 1895. Under the for- *8 Co. Civ. Proc, § 3240. It was mer statute it was held that it was held in Fredenburg v. Biddlecome (17 the duty of the claimant to offer to Week. Dig. 25) that this section did refer his claim, and that such offer 35 657. Admin"isteatio]S" OB' Estate, Etc. 546 On such oonditions tke court, having reference to the facts ap- pearing on the trial, may award costs against the executor or administrator, to be collected out of his individual property or out of the property of the decedent; and such costs are a matter of right.^^ An extra allowance may also be granted.^^ These con- ditions apply only to actions against executors, etc. f^ provision is made for costs in actions by executors in section 3246 of the Code.'"* And they do not apply to actions commenced against the decedent in his lifetime, and continued, after his death, against the executor, etc. ;^^ nor to actions upon claims created since his might be oral (Lanning v. Swarts, 9 How. Pr. 434; Roberts v. Pike, 13 N. Y. Supp. 559 ) , and that until such ofifer, the representative could not be said to have refused it. (Proude v. Whiton, 15 How. Pr. 304; affd., id. 304, note.) See Burnett v. Gould, 27 Hun, 366. It was also held, that re- fusal to refer could not be implied from a rejection of the claim. (Proude V. Whiton, supra; Buekhout v. Hunt, 10 How. Pr. 407; Ehrenreich v. Licht- enberg, 29 Misc. 305.) In Fort v. Gooding (9 Barb. 388), it had been held, that if the executor unquali- fiedly rejected the claim, the person who set it up -nras not bound to de- mand a reference, in order to charge the executor with the consequences of refusing such reference, but could con- strue such rejection as a refusal to refer. This point was expressly over- ruled in Proude v. Whiton, supra, however. In Gorham v. Ripley (16 How. Pr. 313), the creditor's demand having been rejected, he offered to refer to referees to be approved by the surrogate. The executors, instead of accepting this offer, offered to refer to three referees named by themselves, to be approved by the surrogate. Held, a refusal to refer, which ren- dered them liable for costs in an ac- tion on the demand. 51 Snyder v. Snyder, 26 Hun, 324 ; Rooney v. Lenmon, 3 L. Bui. 101; Brainerd v. De Graef, 29 Misc. 560; 61 N. Y. Supp. 953. 52Niblo V. Binsse, 47 Barb. 436; 32 How. Pr. 92; Roberts v. Pike, 13 N. Y. Supp. 559; 19 Civ. Proc. Rep. 422. 53 Fox V. Fox, 22 How. Pr. 453; Woodruff V. Cook, 14 id. 481; Curtis V. Dutton, 4 Sandf. 719; Howe v. Lloyd, 2 Lans. 336; 9 Abb. Pr. (N. S.) 257; Morgan v. Skidmore, 3 Abb. N. C. 92; overruling Fish v. Crane, 9 Abb. Pr. (N. S.) 252. 54 See § 571, amte. An executor is. required to begin an action upon a claim, alleged to be due the estate which he represents, by virtue of trans- actions taking place between his tes- tator and the defendant while the for- mer was alive, in his name as execu- tor, and is not chargeable individually with the costs of an unsuccessful pros- ecution thereof, in the absence of bad faith; nor does the fact that he would be entitled as a beneficiary to a share of the recovery, render him chargeable with a proportion of the costs as a. person beneficially interested in the recovery. (Hone v. De Peyster, 106 N. Y. 645.) 55 Benedict v. Caffe, 3 Duer, 669; Lemen V. Wood, 16 How. Pr. 285; Tin- dall V. Jones, 19 id. 469; 11 Abb. Pr. 258; Merritt v. Thompson, 27 N. Y. 225; Mitchell v. Mount, 17 Abb. Pr. 213; Yorks v. Peck, 9 How. Pr. 201. Merritt V. Thompson (supra) ex- pressly overrules McCann v. Bradley (15 How. Pr. 79), which had given a contrary construction of the statute, but in which another ground for de- nying plaintiff's motion to be allowed costs existed, and was noticed by the court. Mitchell v. Mount (supra), decided at about the same time as Merritt v. Thompson, was followed by Lemen v. Wood ( supra ) , and a view in harmony therewith was adhered to in Tindall v. Jones (supra). The same conclusion as that in Merritt V. Thompson is said to have been reached, in the General Term, in Haight V. Hayt, which, however, is not reported upon this point, but was affirmed on the merits by the Court of Appeals (19 N. Y. 464), and the costs of the several appeals allowed, on the ground that an appeal is in the 547 Administration of Estate, Etc. § 658. decease, by or under the direction of the executors f^ nor does the statute apply to costs on appeal, or interlocutory costs.^' In order to avail himself of the statutory exemption from costs, the ex- ecutor or administrator must bring himself clearly within the conditions contemplated by the statute. The rule prevails now as from the beginning, that the representative must have been guilty of some violation of duty, such as an unreasonable neglect or refusal to pay the claim when presented, before he can be prop- erly charged with costs, in addition to referee's fees and disburse- ments; and no such violation of duty being shown, it is error to allow costs. In any event, the award of costs is governed by sec- tion 3228 of the Code, and unless the claimant recovers more than fifty dollars, the defendant is entitled to costs.®* § 658. Necessity of presentation of claim. — As to the first con- dition, it is fatal to a claim for costs that the creditor (plaintiff) had not presented his claim®® in the time prescribed by the notice, if a notice was published. It is not necessary that the claim should be presented after the publication of the notice has begun; it may be presented at any time after the representative qualifies and enters upon the discharge of his duties; and his decision on the justice of the claim has the same effect as though the claim was presented after the publication of the notice.®" It is wholly imma- terial, therefore, whether the executor ever advertised at all for the presentation of claims.*^ It does not matter that the repre- sentative unreasonably resisted and neglected to pay or refer; plaintiff is not entitled to costs, if his claim was not presented within the statutorv limitation.®^ nature of a new action, and that, as 59 A \ierbal notice is not sufficient to the appeal, the executors ceased to (King v. Todd, 27 Abb. N. C. 149; 21 be defendants. Civ. Proc. Rep. 114. See § 637, ante) ; 56 Smith V. Patten, 9 Abb. Pr. (N. nor is a mere demand enough. (Miles S.) 205. V. Crocker, 88 Hun, 312; 34 N. Y. 57 Benjamin v. Ver Nooy, 168 N. Y. Supp. 761.) 578 ; Hunt V. Connor, 17 Abb. Pr. 466 ; 60 Field v. Field, 77 IST. Y. 294; Judah V. Stagg, 22 Wend. 641. The Clark v. Post, 45 Hun, 265; revd., statute does not apply to equitable on other points, 113 N. Y. 17. actions. ( Richards v. Stillman, 57 61 Brinker v. Loorais, 43 Hun, 247. App. Div. 182; 68 N. Y. Supp. 188; Certainly it is no ground for giving McBride v. Chamberlain, 26 id. 94; costs to plaintiff that no notice was 56 St. Rep. 431; Marryatt v. Riley, ever published. (Snyder v. Young, 4 2 Abb. N. C. 119.) To warrant the How. Pr. 217; Van Vleck v. Sur- charging of the costs on the repre- roughs, 6 Barb. 345; Bullock v. Bo- sentative personally, he must be gardus, 1 Den. 276.) found to be guilty of mismanagement 62 Supplee v. Sayre, 51 Hun, 30 ; or bad faith In the defense. (Co. Civ. King v. Todd, supra. The rule is not Proc., § 3246.) See ante, § 571. altered by the fact that the creditor 58 Lamphere v. Lamphere, 54 App. was unaware of the publication of no- Div. 17 ; 66 N. Y, Supp, 270. tice to present claims, until the statu- §659. ADMiNiSTEATioisr OF Estate^ Etc. 548 § 659. TJnreasonable resistance As to the second condition — that, to charge defendant with costs, he must be shown to have " unreasonably resisted or neglected " to pay the claim, — in de- ciding whether such resistance or neglect was reasonable or not, the court must have " reference to the facts which appear on the trial." If the court finds that the defense was reasonable and proper, it is sufficient to exempt the defendant from costs, al- though in the end he was unsuccessful.®* Where there is reason, in the complicated nature of the accounts involved, in the great amount of business transacted and in the supposed and actual existence of grave counterclaims, to justify the defense actually made, especially if it appears that the judgment was rendered for a much smaller sum than the original claim, costs should not be awarded to plaintiff. '^* It must appear, however, that the defend- ant had good reason to believe that there was a valid defense to the claim, in whole or a material part of it, or that the defense would probably have been successful, if, for example, he could have procured the attendance, at the trial, of a certain witness.*"^ Where the claim is materially reduced on the trial, it cannot be said to have been unreasonably resisted.®^ The claim on which tory period allowed therefor had ex- ant's favor. Held, erroneous, on judg- pired. (Clarkson v. Root, 18 Abb. N. ment being rendered against her, on C. 462.) Horton v. Brown (29 Hun, the third trial, to grant a motion for 654), so far as it holds that the first costs on the ground that payment had condition must have been complied been unreasonably resisted. Where with and one of the subsequent condi- .in administrator did not expressly re- tions must have also happened, in or- fuse to pay the claim until suit was der to entitle plaintiff to costs, has brought, and the year allowed for the been overruled. payment of claims had not expired, — 63 But though no costs are awarded, Held, that he should not have been the claimant may be allowed his dis- taxed with costs. (Patterson v. Bu- bursements. (Outhouse v. Odell, 84 chanan, 40 App. Div. 493; 58 N. Y. Hun, 494; 32 N. Y. Supp. 388; Mulli- Supp. 179.) gan V. Cannon, 25 Civ. Proc. Rep. 63 Cruikshank v. Cruikshank, 9 How. 349 ; Lounsbury v. Sherwood, 53 App. Pr. 350 ; Comstock v. Olmstead, 6 id. Div. 318.) 77; Buckhout v. Hunt, 16 id. 407; 64 Johnson v. Myers, 103 N. Y. 666. Harrison v. Ayres, 18 Hun, 336; Pur- 65 Stephenson V. Clark, 12 How. Pr. sell v. Fry, 19 id. 595; 58 How. Pr. 282. He will not be charged with 317; Pinkernelli v. Bischoff, 2 Abb. costs for resisting a claim referred N. C. 107 ; Daggett v. Mead, 1 1 id. under the statute, where he has acted 116; Webster v. Nichols, 21 Week, with reason and good faith, although Dig. 566 ; where the claim was reduced the claim be finally allowed. (Vaughn one-third. But a reduction of one- V. Strong, 66 Hun, 278; 21 N. Y. fifth, in a claim for services, in conse- Supp. 154.) In that case, which was quence of a difference of opinion as to a reference in a special proceeding, it value, where there had not been a, de- appeared that defendant found, among nial of the whole claim, does not papers of deceased, documents in his relieve from costs. (Fort v. Gooding, handwriting from which she had a 9 Barb. 388.) For other illustrations, right to assume that the claims were see Darling v. Halsey, 2 Abb. N. C. unjust; and that, on two successive 105; Healy v. Murphy, 21 Civ. Proc. trials, referees had found in defend- Rep. 13; Rauth v. Davenport, 45 St. 549 Administeation of Estate, Etc. § 660. the recovery is had must be substantially the same as the O'lie which was presented to, and rejected by, the executor.^'' But the fact that the plaintiff was allowed to amend his complaint so as to claim a larger recovery, and to prove and to recover a larger compensation for services, than that stated in the claim presented to the executors, does not change the claim from that originally presented;®® nor does the fact that the action was for a smaller sum than the amount claimed in the account as presented and rejected, deprive plaintiff of his costs.®* § 660. Failure to file consent. — As to the third condition — that to charge the defendant with costs, he must have failed to " file the consent as provided in section 1822," — the foregoing considerations are entirely applicable. A failure to consent is a fact, and not a conclusion of law, and before costs can be included in the judgment, the fact of a failure must be found or certified to by the referee, or if the certificate does not state all the facts, fully and fairly, they may be shown by affidavits on a motion for costs.™ Under the statute as it stood prior to the amendment of 1895 the reply of the representative, on rejecting the claim, to the claimant's suggestion of a compromise and reference, that the claim had better take its course at law, was held a refusal to refer, entitling the latter to costs, on a recovery.'^* The condition that the consent must be filed, in order to exempt the representative from liability for costs, applies to a claim rejected prior to the amendment,''^ but where the claimant brings an action on the claim within the time allowed the representative to file the statu- tory consent, the former's right to costs is deemed to have been waived.''^ Rep. 926 ; 22 Civ. Proo. Eep. 121 ; manded, was entitled to costs. To the Dukelow V. Searles, 48 St. Rep. 91 ; same eflfeet, Davis v. Gallagher, 37 Wells V. Disbrow, 48 St. Rep. 746; 20 App. Div. 627; Adler v. Davis, 31 N. y. Supp. 518; Ryan v. McElroy, 15 Misc. 47. App. Div. 216; Anderson v. McCann, TO Ely v. Taylor, 42 Hun, 205. Un- 14 id. 365; Davis v. Myers, 86 Hun, der the former statute, the certificate 236 ; Matter of Raab, 47 App. Div. 33. of the referee, based upon a concession OT Genet v. Binsse, 3 Daly, 239. of the defendant, on the trial, that he 68 Field V. Field, 77 N. Y. 294. had refused to refer the claim, should 69 Carter v. Beckwith, 104 N. Y. 236. be conclusive upon the court in award- It is not necessary for plaintiff to ing costs. (lb.) See Russell v. Lane, show that, after the rejection of the 1 Barb. 525; Wilkinson v. Littlewood, claim, he offered to refer the matter 67 How. Pr. 474; Meltzer v. Doll, 91 before the commencement of the ae- N. Y. 365. tion. (lb.) But in Nellis V. Duesler 71 Clark v. Corwin, 39 St. Rep. 784; (44 St. Rep. 228; 18 N. Y. Supp. 315), 21 Civ. Proc. Rep. Iu8. it was held, that where an executor 72 Carter v. Barnum, 24 Misc. 220; rejected a claim and refused to refer 53 N. Y. Supp. 539. it, the claimant, though, recovering 73 Hart v. Hart, 45 App. Div. 280; only a small part of the amount de- 61 N. Y, Supp, 131; Hoye v. Flynn, §§ 661, 662. Admhstisteation of Estate, Etc. 550 The rule has always been that costs against executors, can only be allowBd on special order of the court.'* In actions in the Supreme Court, the Code requires the facts to be certified by the judge or referee, before whom the trial took place. '^ Where the costs were not imposed upon the defendant personally, but were ordered ^o be paid out of the estate, he is not injured, and will not be heard to complain of the absence of the certificate of the judge or referee who tried the cause.'® AETIOLE SECOND. payment of debts. SUBDIVISION 1. classes of debts and oedee of peioeitt. § 661. Whole estate liable for debts — Having considered the methods by which the creditors of the decedent are ascertained, and their claims determined, we proceed to the subject of the payment of the liquidated'' debts out of the surplus remaining after the discharge of the expenses of the administration.'* It is well to remark here that the whole estate, both real and per- sonal, is liable, under all circumstances, for debts contracted by the decedent in his lifetime, without regard to any disposition he may have mad© of his property by will, as the will operates only on what remains after payment of his just debts. '^ § 662. What law governs priorities as between creditors The established American rule is, that, so far as creditors are con- cerned, the assets are to be disposed of according to the laws of the place of their location, and the place where the representative 30 Misc. 636; 64 N. Y. Supp. 252. See Graef, 29 Misc. 560; 61 N. Y. Supp. contra, De Kalb Ave., etc., Church v. 953.) Kelk, 30 Misc. 367; 62 N. Y. Supp. TSMeltzer v. Doll, 91 N. Y. 365; 393. Eflfray v. Masson, 45 St. Rep. 296. 74 Hall v. Brennan, 64 Hun, 394; 77 A claim allowed by the represen- 19 N. Y. Supp. 623; aflFd., 140 N. Y. tative is a liquidated debt. (Matter 409; Effray V. Masson, 45 St. Eep. 296, of Lydecker, 17 St. Rep. 702.) See and eases in § 655, note 40, ante. § 648, ante. 75 Watson V. Abbey, 141 N. Y. 179; 78 The right of the representative to 56 St. Rep. 690; Whitcqmb v. Whit- be reimbursed for the just and reason- comb, 92 Hun, 443 ; 36 N. Y. Supp. able expenses of the administration is 607 ; Lounsbury v. Sherwood, 53 App. paramount to the demands of any Div. 318; 65 N. Y. Supp. 676; Mat- creditors. (Hardenberg v. Manning, tcr of Raab, 47 App. Div. 33; 62 N. 4 Dem. 437.) See § 552, ante. Y. Supp. 332. Such certificate may be 79 Matter of McComb, 17 St. Rep. made by a referee, independent of, and 723. after, his report. (Brainerd v. De 551 Administeatiow of Estate, Etc. § 663. obtains his authority to act; and not by the laws of the decedent's domicile at the time of his death. But the distribution of the residuum, after the payment of debts, etc., is governed by the law of the decedent's domicile.*" Another principle, however, governs the case of the unauthorized removal of assets from the State of the decedent's domicile, after his death, into a foreign jurisdiction, where principal letters of administration are granted upon them. In such a case^ the assets thus removed from the decedent's domicile without authority and brought irregularly into another jurisdiction, ought not to be sequestrated for the use of creditors of the latter jurisdiction to the prejudice of those of the former. Where called upon, in such case, to determine the rights of the creditors of decedent's domicile in a foreign State, and his creditors in this State, with respect to the priority of the former, the surrogate vdll act as if he were sitting in the foreign State and administering its laws, and not our own. If the law of the testator's domicile, — from which, after his death, his assets were, -without right or authority, brought into this State, — gives a preference of payment to the debt due to the physician who attended decedent in his last illness (as the statute of 'New Jersey does), over general creditors, the surrogate here will give him siich preference over a domestic judgment creditor, to the extent of the assets thus broixght into this State. *^ § 663. The order of preference among creditors. — The common- law rule, which prevailed in this State before the adoption of the Eevised Statutes, prescribed the following order for the payment of a decedent's debts: (1) funeral charges and the expenses at the probate office; (2) debts due to the State; (3) debts of record, as judgments, recognizances, and iinal decrees; (4) debts due for rent, and debts by specialty, as bonds and sealed notes, and, 80 2 Kent's Comm. 419, note e; our own citizens to secure their claims Story on Conflict of Laws, §§ 524,525; ovit of the assets situated within our Lawrence v. Elmendorf, 5 Barb. 73. own jurisdiction ; after which, and the In Lynes v. Coley (1 Eedf. 405), the payment of expenses, the further ad- testator, at the time of his death, was ministration was to be left to the domiciled in Connecticut, in which jurisdiction where the estate was to State his will was admitted to pro- be finally closed. Hence, a legatee, bate, and letters were issued. Ancil- resident here, could not compel the ex- lary letters were subsequently issued ecutor to account here for assets not to the executor here. Held, he could left by the testator in this State. be called upon to account here for 81 Hardenberg v. Manning, 4 Dem. only such assets as the testator left 437. In that case, there was no domi- in this State, and which were here at ciliary administrator, to whom the the time the letters ancillary were -court could order the transmission of granted, and that the accounting of the assets, as in the case of an ancil- the executor here was to be carried no lary administration, further than was necessary to enable § 664. Admih-isteatiok" of Estate, Etc. 552 lastly, debts by simple contract.*^ Besides these classes of pre- ferred debts, it was possible, in various ways, to obtain a prefer- ence of one debt over others of the same class, — e. g., by obtain- ing a judgment — the judgment first obtained having a prefer- ence over others: and the executor or administrator might con- fess judgment; so he might retain for a debt due to himself in preference to other debts of the same class, due to strangers.** By the statute,** the executor or administrator, after discharging the funeral expenses and the cost of the administration, is re- quired to pay the debts of the decedent in the following order of " 1. Debts entitled to a preference, under the laws of the United States; " 2. Taxes assessed upon the estate of the deceased, previous to his death; " 3. Judgments docketed, and decrees entered, against the de- ceased, according to the priority thereof, respectively; "4. All recognizances, bonds, sealed instruments, notes, bills, and unliquidated demands and accounts." § 664. Preferences prohibited. — No preference can be given in the payment of any debt, over other debts of the same class, ex- cept those specified in the third class, i. e., judgments and decrees, which are to be paid according to the time of their docketing.*'"* But rents due or accruing, upon leases held by the deceased at the time of his , death, may, by order of the surrogate, be paid before debts of the fourth class, if it appears to the satisfaction of the surrogate that such a preference will benefit the estate.*" Debts not due are on an equality with debts due and payable,*''^ and may be paid by an executor or administrator, according to the class to which they belong, after deducting a rebate of legal 82 2 Kent's Comm. 416; 2 Wms. on 85 Co. Civ. Proc, § 2719, as amended Exrs. {7th ed.) 991; Toller, 259. 1893 (formerly 2 R. S. 87, § 28). The 83 Decker v. Miller, 2 Paige, 149; entry, by a justice of the peace, of a Rogers v. Hosack, 18 Wend. 319; 6 judgment in his docket, does not make Paige, 415. See § 641, amte. A tea- it a debt of record. (Sherwood v. tator could not (and cannot now) de- Johnson, 1 Wend. 443.) And unless, feat the rules of law as to precedence a transcript is filed, and the judgment of debts, by directing his executors to is docketed, in the county clerk's office, make an equal distribution of his as- it is not a " judgment docketed " en- sets among all his creditors. ( 2 Wms. titled to a preference. ( Stevenson v. on Exrs. 990.) Weisser, 1 Bradf. 343.) 84 The provisions of the Revised 88 Co. Civ. Proc, § 2719, as amended Statutes (2 R. S. 87, §■§ 27-30, 33), 1893 (formerly 2 R. S. 87, § 30). on this subject, were carried into Co. 87 Id. (formerly 2 R. S. 87, § 28). Civ. Proc. (§ 2719) by L. 1893, c. 686, with only unimportant verbal changes. 553 Administbatioit of Estate, Etc. §§ 665, 666. interest upon the sum paid, for the unexpired term of credit, without interest.^^ The commencement of a suit for the recov- ery of a debt, or the obtaining a judgment thereon against the executor or administrator, does not entitle such debt to any preference over other debts of the same class.®" A debt due to an executor or administrator has no preference over others of the same class, and he cannot retain funds in his hands for the payment of such debt or claim, until it has been proved to, and allowed by, the surrogate.®" § 665. Preference under United States laws. — By the Federal statute, whenever the estate of any deceased debtor in the hands of the executors or administrators is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and every executor or administrator who pays any debt due by the estate for which he acts, before he satisfies and pays the debts due to the United States, is answerable in his own person and estate for so much as remains unpaid."^ It is also provided that whenever the principal in any bond given to the United States is deceased, and his estate and effects are instifficient for the payment of his debts, and in case any surety in the bond, or his executor, administrator, or assignee, pay to the United States the money dvie on the bond, such surety, his executor, ad- ministrator, or assignee, shall have the like priority for the re- covery and receipt of the moneys out of the estate and effects of the deceased principal as is secured to the United States, and may maintain a suit upon the bond, in law or equity, in his own name, for the recovery of all moneys paid thereon. § 666. Taxes. — On the theory that the people of the State suc- ceeded, at the revolution, to the prerogatives of the crown of Great Britain, within the limits of the State, it has been said that, independently of the statute, all debts due to the State, e. g., taxes, 88 Id. (formerly 2 R. S. 87, § 29). Cranch, 390; concurred in by Piatt, 89 Id. (formerly 2 E. S. 87, § 28). J., in Aiken v. Dunlap, 16 Johns. 85.) sold, (formerly 2 R. S. 87, § 33). This preference would exist in favor 91 U. S. R. S. 691, §§ 3466, 3468. of the United States, independently of The last clause was, no doubt, put the statutes of this State, if it be into the statute to meet a doubt ex- true, as has been held (U. S. v. Dun- pressed whether the original statute can, 4 McLean, 207), that the laws of created a lien on the assets in the the United States control all State hands of representative; and whether, laws for the distribution of estates, if, without notice of the debt being a and supersede all State laws upon the preferred one, he distributes the estate subject that come within their pro- without providing for it, he would be visions. (U. S. v. Duncan, 12 111. liable personally. (Per Marshall, C. 523.) J., in United States v. Fisher, 2 § 666. ADMiiTiSTEATiojsr OF Estate, Etc. 554 should have a preference in payment over debts of the same rank due to individuals.®^ But since the adoption of the Revised Stat- tites, the State has no right of priority in payment, except as con- ferred by that statute, on the principle of expressio unius est ex- clusio alterius. The taxes upon the real property of the deceased, which are to be paid out of the personal estate, are only those which were assessed previous to the death of the deceased.®^ It does not change the rule that proceedings had not been had upon the assess- ment necessary to create a lien on the land f* all that is required is that theassessment of thetax shall havebeen so far completed, in the name of the person designated as owner, as that it could not, there- after and before the owner's death, be changed or altered by the as- sessment officers.®^ Taxes are chargeable to the corpus of the estate, and are not payable by the heir or devisee. ^^ A direction in a will for the payment over to trust beneficiaries, of the net in- come, "after payment of all taxes and assessments," does not show an intention to relieve the corpus of the estate, and make the taxes assessed at testator's death a charge on the income; it oould only have been intended to provide for the annual current expenses, after his death.®^ But where the direction is that the executor shall remain in charge of land until the youngest child comes of age, and that all rents and interest be paid by the executor to the wife, out of which she shall pay all taxes, the executor is entitled to credit, against the income fund, for taxes paid by him.®* The representative is not warranted in paying taxes assessed subse^ 92 See 2 Kent's Comm. 416. officers before the death of such per- 93 Matter of Mansfield, 10 Misc. son, shall be payable from his estate 296; 31 N. Y. Supp. 684. See ante, in due course of administration. § 615. So taxes assessed during de- (Per Euger, C. J., in Matter of Bab- cedent's lifetime, upon real property cock, supra.) in which he had a life interest, are 90 Matter of Babcock, supra; Mat- entitled to preference under the stat- ter of Arkenburgh, 13 Misc. 744; 35 lite. (Coleman v. Coleman, 5 Eedf. N. Y. Supp. 251; Matter of Doheny, 524.) See Krueger v. Schlinger (19 70 App. Div. 370; 75 N. Y. Supp. 24. Misc. 221; 43 N. Y. Supp. 305), where 9T Matter of Philbin, N. Y. Law J., it was said that the word " taxes " in July 9, 1892. the statute, referred only to personal 98 Matter of Smith, 1 Misc. 269 ; 22 taxes. N. Y. Supp. 1067. In that case, the 94 Matter of Babcock, 115 N. Y. 450, will also provided that if the widow s. c. as Matter of Detmold, 4 N. Y. accepted thereunder, she should pay Supp. 903 ; Matter of Franklin, 26 all taxes on the estate out of the in- Misc. 107 ; 56 N. Y. Supp. 858. come. Held, the executor was not 95 The meaning of the act requiring entitled to credit for taxes paid, in executors to pay taxes assessed upon the absence of any proof that the in- the estate of the deceased " previous come was insufficient for that purpose, to his death," etc., is that assessments, and the payment by him was neces- so far completed that the name of the sary for the preservation of the estate, person, named as owner, cannot be See Clarke v. Clarke, 145 N. Y. 476; changed or altered by the assessment Matter of Mansfield, 10 Misc. 296. 555 Administration of Estate, Etc. § 667. queiitly to his decedent's death ;^® they are chargeable tipon the land. There is, therefore, no ratable apportionment, varying ac- cording to the period of the year in which the decedent died, of the amount to be paid out of the personalty, and that chargeable on the land.^ The term " taxes " does not include assessments made by a municipal corporation under authority derived from the Legislature;^ and, although such an assessment, which was con- firmed at the time of the decease of the testator, is a personal debt, and should be paid out of the personal estate, it is not en- titled to any priority before other debts. ^ § 667. Judgments and decrees. — Before the adoption of the Ee- vised Statutes, judgments had a right of priority of payment as among themselves, according to the date, not of their entry, but of the issue of execution upon them. Now, however, they are pay- able " according to the priority thereof, respectively," * — that is, of their docketing. The fact that the judgment is more than ten years old, and hence has ceased to be a lien on real estate, does not affect its right to priority.® The judgments contemplated are those entered , " against the decedent :" a judgment against his representative, though founded on his debt, is not, therefore, in- ssWilleox V. Smith, 26 Barb. 316; of five judgment creditors of the lat- Matter of Benedict, 15 St. Rep. 746; ter claimed a priority of payment on Matter of Young, 17 Misc. 680; sub the ground of the prior date of the nom. Matter of Cornell, 41 N. Y. docketing of his judgment, although Supp. 539; 15 App. Div. 285. As to this would exhaust the entire fund in the authority of administrators, etc., court for distribution. Held, that all to deal with real estate, see ante, judgments docketed prior to the vest- §§ 530, 595. ing of the estate in the judgment 1 Griswold v. Griswold, 4 Bradf. debtor, on the death of his wife, at- 216. tached simultaneously; that the liens 2 Matter of Hun, 144 N. Y. 472; 63 were all of the same rank, no one be- st. Rep. 729. ing superior to the other; and that 3 Seabury v. Bowen, 3 Bradf. 207. the money should be distributed pro 4 Co. Civ. Proc, § 2719, as amended rata. In Matter of Gates (44 St. Rep. 1893; Matter of Foster, 8 Misc. 344; 104; 18 N. Y. Supp. 873; affd., 21 id. 29 N. Y. Supp. 316; Trust v. Harned, 576), a judgment had been docketed 4 Bradf. 213; 4 Abb. Pr. 270. This against decedent six years before he rule of priority is different in the case died, but no administrator was ap- of a judgment debtor who acquires pointed until ten years had expired title to real estate after the docketing from the docket of the judgment, and of several judgments against him. In the administrator was discharged two such case, the liens of the several years thereafter. Held, that under judgments attach together at the same Co. Civ. Proc, § 1380, the lien of the instant, all stand upon the same foot- judgment could be enforced within ing, and the oldest judgment has no three years and six months of the priority. (Goetz v. Mott, 21 Abb. N. issue of letters of administration, and C. 246; 15 Civ. Proc. Rep. 11.) In that that time did not run from the Matter of Hazard, in N. Y. Surr. Ct. death of the intestate. (N. Y. Law J., Feb. 23, 1893), on pro- 5 Ainslie v. Radcliff, 7 Paige, 439; ceedings for the distribution of » Matter of Townsend, 83 Hun, 200; 31 wife's estate, the whole of which she N. Y. Supp. 409. had bequeathed to her husband, one § 667. Admiitisteatioi^ of Estate, Etc. 556 eluded in tlie class. 'The statute expressly declares that "the com- mencement of a suit for the recovery of a debt, or the obtaining a judgment thereon against the executor or administrator, shall not entitle such debt to preference over others of the same class." * A question has arisen, v?here the estate is insolvent and cannot pay the class of judgments in full, whether the part of the judgment which represents a recovery for costs against the representative, in an action by a creditor to establish the claim, is entitled to be paid in full, though the rest of the judgment is payable only pro rata. It has been held, that such costs are ei^itled to priority, in proceedings for payment out of, or against, particular funds or properties, when equitable principles require that payment of costs should be made separate from the debt.^ e Co. Civ. Proe., § 2719, as amended 1893 (formerly 2 R. S. 87, § 28). See Schmitz V. Langhaar, 88 N. Y. 503; Sippel V. Maeklin, 2 Dem. 219; Mat- ter of Casey, 6 N. Y. Supp. 608; Par- ker V. Gainer, 17 Wend. 559; James V. Beesly, 4 Redf. 236. An award against the estate, under a submis- sion made by the representatives, is not entitled to priority of payment as a judgment; though the award may bind the representative personally, it cannot prejudice the rights of other creditors, having debts of equal de- gree, to share equally in the distribu- tion of the estate. (Wood v. Tunni- cliff, 74 N. Y. 38.) A judgment cred- itor of the decedent cannot obtain a preference by the commencement of an action against the representative, and his fraudulent vendee of the as- sets, to set aside the fraudulent trans- fer and have the assets applied to the payment of his judgment. (Evering- ham V. Vanderbilt, 51 How. Pr. 177.) Where a judgment has been recovered against an executor in an equitable action by a creditor whose claim was incurred in the continuance of the business by the executor under the direction of the will, a provision which requires the defendant to pay it out of the funds and property be- longing to the estate, and directs him to pay the plaintiff's judgment and to hold the remainder of the estate sub- ject to the order of the court is im- proper. In such case plaintiff must proceed to collect his debt in the mode prescribed by law, by pro- ceedings in the Surrogate's Court. (Willis V. Sharp, 115 N. Y. 396; 26 St. Rep. 125.) It seems, that if the creditors of the decedent, at the time of his death, did not consent to the carrying on of the business by the ex- ecutor, they have the right to insist that the estate, as it existed at his death, 'shall be used for the payment of their debts, and the expenses of ad- ministration, to the exclusion of debts subsequently created by the executor, but if they do consent, different prin- ciples must apply, and creditors of the business must share pro rata with the other creditors in the whole estate. If the business was carried on without the consent of the creditors, and the estate has been thereby increased, then the original creditors should probably alone share in the estate, as it came to the executor, and the cred- itors of the business should alone have the increase made by their con- tributions to the capital of the busi- ness, (lb.) TSo held in Shields v. Sullivan, 3 Dem. 296, on the principle of the case of Columbia Ins. Co. v. Stevens, 37 N. Y. 536; and in Matter of Randell, 8 N. Y. Supp. 652. In the last case, the court ( Weiant S. ) said : " Where expense is imposed upon a creditor to enforce his claim by resistance thereto made in the interest of the fund or property of those entitled to the same, I do not see why such creditor should not be first reimbursed to the extent of the costs awarded him for such re- imbursement. It is but the marshall- ing and disposing of funds or proper- ties in court upon principles of equity, where no fixed rules of law intervene to the contrary." But compare Shuts • 557 Admi:nisteation of Estate, Etc. §§ 668-670. § 668. Judgment entered after a party's death. — But a final judgment, entered in the names of the original parties, as per- mitted, in case either party has died, " after an accepted offer to allow judgment to be taken, or after a verdict, report or decision, or an interlocutory judgment, but before final judgment is en- tered," * is not such a judgment. Such a judgment " does not become a lien upon the real property or chattels real of the de- cedent, hut it establishes a debt to be paid in the course of the ad- ministration ;" ® and if such a, judgment has been duly docketed, it has the same force ^nd effect, as regards priority in payment, as if the decedent had died on the day after its entry. ■"* § 669. Foreign judgments. — Judgments rendered in sister States, or foreign countries, as they cannot be docketed here, take rank only as simple contract debts.^"' But judgments of the Federal courts, sitting in this State, are doubtless entitled to be included among " judgments docketed." ^^ § 670. Rent due on leases. — Among the fourth class, in the or- der of payment, are to be included rents due or accruing upon leases held by the decedent at the time of his death. But such rents the Surrogate's Court has authority to order paid, before the other debts of this class, when it satisfactorily appears that such preferred payment will benefit the estate. -^^ Such a direction should be made after a hearing had, upon a petition, and on proof of all the facts and circumstances, by affidavits or oral testimony, disclosing in what way the alleged benefit may accrue. In the V. Shute ( 5 Dem. 1 ) , where it was the judgment, nunc pro tunc, as of the held, that, in case of a deficiency of term prior to decedent's death. (Mat- assets, costs included in the judgment ter of Dunn, 5 Redf. 27.) recovered against the representative, n Brown v. Public Adm'r, 2 Bradf. upon a demand against the decedent, 103; Hubbell v. Coudrey, 5 Johns. 132; had no preference. See Matter of Ma- Taylor v. Bryden, 8 id. 173; Pawling honey, 37 Misc. 472; 75 N. Y. Supp. v. Bird, 13 id. 192. 1056. In Matter of Casey ( 6 N. Y. 12 See Bernes v. Weisser, 2 Bradf. Supp. 608), it was held on appeal 212; Manhattan Co. v. Evertson, 6 from a decree, on an accounting of Paige, 457 ; Willard on Exrs. 280 ; executors, that costs contained in a Dayton on Surr. 288. judgment against executors for costs 13 Co. Civ. Proc, § 2719, as amended should be paid in preference to leg- 1893 (formerly 2 P. S. 87, § 30). Be- acies. fore the Revised Statutes, rents were 8 Co. Civ. Proc, § 763. preferred next after debts of record, 9 Co. Civ. Proc, § 1210. and a practical preference was also 10 Matter of Clark, 5 Dem. 377; cit- given by the landlord's right to dis- ing Nichols v. Chapman, 9 Wend, train for rent. (2 R. S. 500.) The 452; Salter v. Neaville, 1 Bradf. 488; present rule gives, in effect, the same Bernes v. Weisser, 2 Bradf. 212; Mat- preference, in the cases mentioned in ter of Clark, 15 Abb. Pr. 227; Ainslie the text. Distress for rent was abol- V. Radeliff, 7 Paige, 439. It is not ished in 1846. (L. 1846, c. 274.) necessary to obtain an order to enter §§ 671-673. Administration of Estate, Etc. 558 absence of proof of actual benefit, the surrogate cannot assume to direct the payment of rent as a preferred claim. ^* Where the surrogate's decree stated that it appeared, to his satisfaction, that a preference allowed by him -would benefit the estate, it was held conclusive, upon appeal. -"^^ The surrogate may not only direct the preference upon an application to him for that purpose, but he may, upon the final accounting of the representative, ratify his preferential payment of rent, upon proof of benefit to the estate. -"^ §671. Debts by specialty. — There is also a class of debts not mentioned in the statute, which are, nevertheless, good as against the executors or administrators, and form a sort of fifth class, e. g., a voluntary bond of the testator, given in his lifetime, payable at, or immediately after, his death. In the absence of fraud, such a bond has been held a valid debt against the estate, and to have a preference over legacies, though it must be postponed to debts con- tracted for valuable consideration.-'^ SUBDIVISIOlSr 2. MABSHALLING ASSETS. § 672. Order of priority. — Questions frequently arise between heirs or devisees and executors, as to how far the personal prop- erty must be exhausted in the payment of debts, before the real estate can be resorted to, and bow far executors can be compelled to pay off incumbrances on the land out of the personal property. The rule governing the order of marshalling assets toward pay- ment of debts is, to apply: (1) the personal estate; (2) lands de- scended; (3) lands devised.^® § 673. Personal assets primarily liable for debts. — The personal efetate of the testator is deemed the natural and primary fund for the payment of debts and legacies, and the testator is presumed to act upon this legal doctrine, until he shows some other distinct and unequivocal intention.^* Thus where the testator specifically !■! Cooper V. Felter, 6 Lans. 485. years, which is assets in the hands of Pacts must appear, aho-wing explicitly the personal representative. (John- that a benefit will accrue to the es- son v. Corbett, 11 Paige, 265.) tate ; a general allegation to this effect 16 Hovey v. Smith, 1 Barb. 372. will not suffice. (Harris v. Meyer, 3 17 Isenhart v. Brown, 2 Edw. 341. Eedf. 450.) 18 Livingston v. Newkirk, 3 Johns. 15 Hovey v. Smith, 1 Barb. 372. Ch. 312, and eases imjfro. Rent of a pew in church cannot be 19 Hoes v. Van Hoesen, 1 N. Y. 120 ; made a preferred debt, under the stat- affg. 1 Barb. Ch. 379. And see McKay ute, unless it be due on a lease for v. Green, 3 Johns. Ch. 56; Hawley v. 559 ADMIig-ISTEATION OF EsTATE, EtC. § 674. bequeathed his chattels to one person and devised his real prop- erty to another, without any direction as to which should he ap- propriated to satisfy an existing judgment against him, it was held that the personal property must be applied first.^" Where the testator charges the payment of his debts upon certain specified real estate, and if that should prove insufficient, then upon his other real estate, as between the legatees and devisees, the per- sonal estate is exonerated from the debts. ^^ But where the heirs and next of kin are the same persons, the payment of debts from the proceeds of realty is not objectionable.^^ The common-law rule, that the personal estate of a deceased person will be applied to the payment of his contract debts, to the relief of his real estate, is not of universal application, and will not be enforced where it ' is in apparent hostility to the plain intent of the deceased, as ex- pressed in his will, and would defeat bequests made therein.^^ In general, personal property, specifically bequeathed, cannot be ap- plied, unless the remainder of the personalty is insufficient f* but where a plain intention can be gathered from the will, that certain personal property shall be treated as real, it must be regarded as effecting a conversion thereof, and specific legacies must be re- sorted to, before chattels so converted are applied. ^^ Real prop- erty equitably converted retains its initial character and cannot be resorted to so long as the personalty is sufficient. ^^ §674. Where assets are insufficient — Where the personal prop- erty is not sufficient to pay all the debts, and the real estate must be resorted to, the land which is not devised must, as between James, 5 Paige, 318, 448. Where Wlifere it ^was the intention of the land held under an unpaid contract of testator to appropriate the proceeds purchase is devised for life, with re- of a house and lot to the payment of mainder in fee, the unpaid purchase legacies and at the time of his death money is to be paid out of personal the personalty was insuflScient for assets. But the tenant for life can- that purpose, — Held, that other real not require the application of the estate not appropriated to the pay- residuary personal estate to improve- ment of legacies should be first re- ments of the land, so as to render it sorted to for the payment of his debts, productive for his benefit. (Cogswell (Jouffret v. Jouffret, 20 App. Div. V. Cogswell, 2 Edw. 231.) See § 738, 455; 46 N. Y. Supp. 810.^ post. Land held under lease from the 22 Matter of Braunsdorf, 13 Misc. Seneca Nation of Indians, for the pur- 066 ; 35 N. Y. Supp. 298 ; 2 App. Div. poses of transfer, descent, and distri- 73. bution, is real estate, and rents re- 23 Rice v. Harbeson, 63 N. Y. 493. ceived therefor by the executors are 24 Toch v. Toch, 81 Hun, 410; 30 not available for the payment of gen- N. Y. Supp. 1003. eral legacies. (Matter of McKay, 33 26 Downing v. Marshall, 1 Abb. Ct Misc. 520; 68 N. Y. Supp. 925.) App. Dec. 525. 20 Rogers V. Rogers, 3 Wend. 503. 26 Matter of Mansfield, 10 Misc 21 Youngs V. Youngs, 45 N. Y. 254. 296; 31 N. Y. Supp. 684. § 675. Administeation of Estate, Etc. 560 heirs and devisees, be first taken ;^^ although, in a peculiar case, where the personal property in hand was insufficient, the surro- gate directed debts to be paid by the executors out of rents of the real estate then in hand, leaving the rights of the parties to be subsequently settled ;^^ and, in another case, the proceeds of land sold under a power in the will, were applied to the payment of debts, although the power contained directions to invest the pro- ceeds for the benefit of a specific legatee.^ § 675. Mortgage debts — At common law, a mortgage debt, whether there was a bond or covenant or not, was primarily pay- able, like other debts, out of the personalty, and the devisee or heir might compel such payment, by the representative, and thus relieve the realty from the burden of the debt, unless, in the event of a will, the testator expressly or impliedly directed the debt to be paid out of the realty. By the provisions of the Revised Statutes (now incorporated into the Real Property Law), a mortgage cannot be construed as implying a covenant to pay the debt; and in the absence of an express covenant in the mortgage, and of any sepa- rate bond or other instrument to secure the payment, the remedy of the mortgagee is confined to the mortgaged lands.^'' It is also provided that, whenever any real estate, subject to a mortgage executed by any ancestor or testator, shall descend to an heir or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own property, without resorting to the executor or administrator of his ancestor, unless there be an expreSjS direction in the will of the testator that the mortgage be otherwise paid.^^ Where the real and personal property are 27 Graham v. Dickinson, 3 Barb Ch. was re-enacted in the Real Property 169. And see Livingston v. Living- Law (L. 1896, c. 547, § 214). See ston, 3 Johns. Ch. 148. Home v. Fisher, 2 Barb. Ch. 559 ; Sev- 28 Skidmore v. Romaine, 2 Bradf. eranee v. Griffith, 2 Lana. 38 ; Cole- 122. man v. Van Rensselaer, 44 How. Pr. 29 Matter of Shannon, 1 N. Y. Supp. 368, and cases cited. Where a person 747. Compare Matter of McKay, 24 took a conveyance of land subject to Misc. 255 ; 53 N. Y. Supp. 563. Where a mortgage, covenanting to indemnify a will empowers the executors to sell the grantor against it, and, having the real estate when in their judg- paid part of it, died intestate, — Held, ment they deem it for the best inter- the land was the primary fund for th* ests of the estate, they are entitled payment of the residue, and the per- to reimburse themselves from the pro- sonal estate was to be resorted to only ceeds of such sale for debts paid by as auxiliary. (Cumberland v. Cod- thein in excess of the personal estate, rington, 3 Johns. Ch. 229.) irrespective of whether the power was 31 L. 1896, c. 547, § 215 (1 R. S. given for the purpose of paying debts. 749, § 4) ; Matter of Kene, 8 Misc. (Matter of Bolton, 146 N. Y. 257; 66 102; 29 N. Y. Supp. 1078. For what St. Rep. 630.) has been held to be an express direc- 30 1 E. S. 738, § 139. This statute tion by a testator, see Mosely v, Mar- 561 Admis'isteatiobt of Estate, Etc. §675. thrown into one fund, in which the same parties are interested equally, the executor may, for the benefit of the estate, apply personal property to pay a mortgage on the realty. ^^ While, however, the land upon which the mortgage is a lien is the primary fund for the payment of the mortgage debt, it is not the exclusive fund ; for if the primary fund is exhausted, then the general assets may be resorted to.^^ It is a general rule that a creditor, who has a security upon a fund which is primarily liable, is bound to exhaust his remedy against it, and can only come in against the personal estate for the deiiciency.^* It is shall, 27 Barb. 45 ; House v. House, 10 Paige, 158; Mollan v. Griffith, 3 id. 402; Halsey v. Reed, 9 id. 446, 454; Smith v. Lawrence, 11 id. 206; Wright V. Holbrook, 32 N. Y. 587. A mere direction in the will to pay debts is not enough to relieve the land from the burden of the mortgage. (Rapalye V. Rapalye, 27 Barb. 610; Taylor v. Wendel, 4 Bradf. 324; Meyer v. Cahen, 111 N. Y. 270.) A direction in a will to pay all of testatrix's debts, " whether on bonds and mortgages or otherwise," has been held, in accord- ance with the apparent intent of the testatrix, to include mortgages on property included in deeds of gift exe- cuted by testatrix in her lifetime, as well as a mortgage on property de- vised. (Waldron v. Waldron, 4 Bradf. 114.) It was held, before the Revised Statutes, that a testator might, by dispositions and language tantamount to express directions, charge his per- sonal estate with the payment of an incumbrance subject to which he had purchased lands. The intent gathered from the whole will was sufficient. (Cumberland v. Codrington, 3 Johns. Ch. 272.) So a mortgage given to secure an accommodation indorser for future indorsements does not charge the mortgaged lands in exoneration of the personal estate. (Cochrane v. Hawver, 54 Hun, 556.) Where there is an express direction in the will that a mortgage be otherwise paid than from the mortgaged lands, so as to take the case out of the statute, such mortgage-debt is as obligatory upon the executor as is the payment and discharge of any other debt of the testator. (Matter of Hopkins, 57 Hun, 9.) If the will shows an intent to treat mortgage-debts of the testa- tor as ordinary debts, and the fund designated by him for their payment 36 fails, they are chargeable upon his en- tire real estate devised, each portion of which must bear a share propor- tionate to its value. ( Searles v. Brace, 19 Abb. N. C. 10; Wells v. Wells, 30 id. 225; 24 N. Y. Supp. 874.) See Mills V. Mills, 28 Misc. 633 ; 59 N. Y. Supp. 1048.) 32 Hepburn v. Hepburn, 2 Bradf. 74. See Pease v. Egan, 131 N. Y. 262. 33 And under 2 R. S. 191, § 152, the court, having jurisdiction of a foreclosure suit, may decree the pay- ment of any deficiency by the personal representatives of the mortgagor; and the surrogate, in proceedings before him to compel obedience to such a de- cree by the executor, has no power to pass upon the validity of the judg- ment, sufficiency of the complaint, or any other question raised in the ac- tion. (Glacius V. Fogel, 88 N. Y. 434.) In Williams v. Eaton (3 Redf. 503 ) , it was held, that where there was reason to anticipate a deficiency upon a foreclosure of the mortgage, the executor should be directed to re- serve, from the personal estate, a suf- fieient sum to afford the mortgagee his proportion of his demand against the estate, pro rata with the other creditors, and to that extent, should satisfy the deficiency. Compare James V. Beesly, 4 Redf. 236; Glacius v. Fogel, id. 516; Livingston v. Gardner, id. 516, note. 34 Halsey v. Reed, 9 Paige, 446. And the rule is as applicable to the claims of legatees as to the claims of creditors. ( Rice v. Harbeson, 63 N. Y. 493.) But a vendor's lien for the pay- ment of the purchase money is not a mortgage within the statute, and, except as against creditors having a prior right, an heir or devisee can compel the executors or administra- tors to pay the unpaid purchase §§ 676, 677. Administeation of Estate, Etc. 562 obviously impossible, withia the space at our command, to go further into this subject.^® The application of the real estate to the payment of debts, where there is a deficiency of assets, by proceedings in the Surrogate's Court for that purpose, is fully treated in the next following chapter. § 676. Copartnership debts — The right of a creditor of a firm to share in the estate of a deceased member of the firm in the hands of his administrator, where there is no joint estate and the surviving partner is insolvent, is governed by the rules by which courts of equity are gnaided in distributing the separate estate of an insolvent, as between his separate creditors and those of a cO' partnership of which he was a member. While, as a general rule, in such cases, the separate creditors are entitled to be first paid, yet where a creditor, at the time a debt is contracted, for the benefit of the firm, requires therefor, and receives, the joint and several obligation of the co-partners individually, it thereby becomes the several debt of each of them; the holder is entitled to the benefit of the security according to its terms, and has the right to prove it against the separate estate of the decedent, and to share equally with the other separate creditors in the distribu- tion.^® SUBDIVISIOIsr 3. PBOCEEDIITGS TO COMPEL. PAYMENT OF DEBTS. § 677. Judgments against representative. — One of the new rules adopted by the Code of Civil Procedure is that actions, etc., commenced by an executor or administrator, upon a cause of action, belonging to him in his representative capacity, and ac- raoney, unless it is secured by an exe- assets, until they have been so ap- cuted mortgage on such land. (Lam- plied as to produce equality among port V. Beeman, 34 Barb. 239.) all. (Wilder v. Keeler, 3 Paige, 167.) 35 As to disposition of surplus And see Purdy v. Doyle, 1 id. 558. money, on a foreclosure of mortgage As to what are legal and what equita- on land owned by decedent, see Co. ble assets, see Rogers v. Hosack, 18 Civ. Proc, § 2798, as amended 1893, Wend. 319; Benson v. Le Roy, 4 § 66, ante; and as to representative's Johns. Ch. 651; Thompson v. Brown, power or duty to buy in land on a 4 id. 619 ; Pascalis v. Canfield, 1 Edw. foreclosure; or paying interest to pre- 201. vent a foreclosure and sale, see §§ 530, 36 Matter of Gray, 111 N. Y. 404. 595, 617, ante. As to discrimination See Matter of Striker, 24 Misc. 422; in the distribution of legal and equita- 53 IST. Y. Supp. 732 ; Potts v. Baldwin, ble assets among all the creditors pro 67 App. Div. 434; 74 N. Y. Supp. 665. rata, without preference, see Moses As to remedies of firm creditor against V. Murgatroyd, 1 Johns. Ch. 119; the estate of a deceased partner, see Thompson v. Brown, 4 id. 619. Harbeck v. Pupin, 23 Abb. N. 0. 190. Those who take of the legal assets See ante, §§ 533, 612. will receive no part of the equitable 563 Administeation of Estate, Etc. §§ 678, 679. tions, etc., commenced against him (except where brought to charge him personally), must be brought by or against him in his representative capacity. And judgments recovered against an executor or administrator, without describing him in his repre- sentative capacity, cannot be enforced against the property of the decedent, except by the special direction of the court, con- tained therein. ^'^ We have already stated the principle, that the only effect of a judgment against the personal representative upon a claim against the decedent is to liquidate the debt. The judg- ment is not evidence of assets,^® but only of the amount due the creditor. It is further provided that the representative shall not be chargeable for any assets or moneys that he may have paid in satisfaction of any lawful claims, or of any legacies, or in mat- ing distribution to the next of kin, before suit brought against him on a claim, if such claim was not presented to him "within six months from the first publication of his notice to creditors." "'" § 678. Effect of judgment — A judgment against the representa- tive, as such, is not entitled to equality of payment with judg- ments docketed against the decedent, but is included in the fourth class of ordinary debts. The decedent's real property is in no way bound or affected by a judgment against his personal representatives, and is not liable to be sold under execution issued on such judgment, unless the judgment expressly and in terms is made a lien upon specific real property therein described, or expressly directs its sale.*" Hence, an execution cannot issue against the real property of the deceased upon a judgment for deficiency recovered against his representatives. "To authorize such a proceeding, the judgment must have been recovered against the decedent in his lifetime.*^ §679. Execution on judgment. — An execution against prop- erty, in the hands of an executor, administrator, or trustee, must, substantially, require the sheriff to satisfy the judgment out of that property.*^ "An execution may be issued, in the name of an executor or administrator, in his representative capacity, upon a judgment recovered by any person who preceded him in the administration of the same estate, in any case where it might 37 Co. Civ. Proc, § 1814. This pro- 1893; adopting, in part, 2 R. S. 89, vision applies only to actions com- § 39. menced after Sept. 1, 1880. See ante, *o Co. Civ. Proc, § 1823. §§ 567, 570. 41 James v. Beesly, 4 Redf. 236. 38 Co. Civ. Proc, § 1824. See § 632, 42 Co. Civ. Proc, § 1371. See Saper- ante. stein v. Ullman, 168 N. Y. 636 39 Co. Civ. Proc, § 2718, as amended (mem.) ; affg. 49 App. Div. 446. § 680. Administuation of Estate, Etc. 564 have been issued in favor of the original plaintiff, and without a substitution." *^ But it is provided, that " an execution shall not be issued, upon a judgment for a sum of money, against an executor or administrator, in his representative capacity, until an order, permitting it to be issued, has been made by the surro- gate from whose- court the letters were issued. Such an order must specify the sum to be collected; and the execution must be indorsed with a direction to collect that sum." ** § 680. Leave to issue execution. — Under the Eevised Statutes, an execution, on a judgment against the personal representative j could issue at once (provided his account had been settled) for a just proportion of the assets applicable to the satisfaction of the judgment,*^ But, under the present statute, no execution can issue on such a judgment for money, without the order of the surrogate from whose court the letters of the representative were issued;*^ and the order, when granted, will not direct to be col- lected, by the execution, a greater sum than the plaintiff's just proportion of the residuum of assets, after allowing for the ex- penses of the administration, and for debts entitled tO' a priority; and "for claims entitled to priority as against the plaintiff."*^ The order must specify the sum to be collected, and the execu- tion musit be indorsed with a direction to collect that sum.*^ One or more orders may be afterward made in like manner, and one or more executions may be afterward issued, whenever it appears that the sum, directed to be collected by the first execution, is less than the plaintiff's just proportion.*^ The statute applies as well to a judgment obtained against the representative, for a 43 Co. Civ. Proc, § 1829. .503. The clause quoted in the text, 4* Co. Civ. Proc, § 1825. and the corresponding expression in 45 2 P. S. 88, § 32. See Olmsted section 1827, are intended, according V. Vredenburgh, 10 How. Pr. 215; to the note of Mr. Commissioner People V. Judges of Albany Co., 9 Throop, " to include not only the com- Wend. 488 ; Butler v. Hempstead, 18 mon cases, where legacies are post- id. 667; Dox v. Backenstose, 12 id. poned to debts, and certain debts to 542. others, but also a class of cases where 48 Disosway v. Hayward, 1 Dem. 175. the assets must, according to well- Under Code Civ. Proc, §§ 2553, recognized rules, be applied to the 2554, an execution cannot regu- payment of debts, to the exclusion of larly issue to the sheriff of the surro- some legacies rather than others, gate's county, upon a surrogate's de- Thus residuary legacies are applied cree directing the payment of a sum to the payment of debts before gen- of money, until the decree has been eral legacies; and general legacies be- docketed in the oflSce of the county fore those given upon a consideration; clerk; if not so docketed, it is irregu- and all of these, before applying spe- lar, and must be set aside on motion, cific and demonstrative legacies." (Co. Civ. Proc, §§ 1365, 1369.) « Co. Civ. Proc, § 1825. 4T Co. Civ. Proc, §§ 1825, 1826. 49 Co. Civ. Proc, § 1826. See Schmitz v. Langhaar, 88 N". Y. 565 Admii^isteation of Estate, Etc. § 681. liability incurred by him in the administration of the estate, as to a judgment against him for a debt of the decedent.^" But where the judgment was not in " an action relating to decedent's estate," — as where the action was brought by the representative for damages for negligence which caused the death of the dece- dent, — the surrogate has no authority to permit an execution to issue for the costs of such an action against the representative, as such.^^ § 681. Application for leave — The application may be made at any time after judgment, and it is for the covirt to say whether the estate is so far administered as to enable it to ascertain whether there will be applicable assets sufficient to pay all the debts in full, or if not to pay them in full, then what is the judg- ment creditor's just proportion of the residuum. The former statute required that, in all cases, an accounting should be first had, before leave would be granted to issue an execution ; but this rule was held not to contemplate a settled or liquidated account, but only such an accotinting of the condition of the assets, as would enable the court to determine whether there was property applicable to the satisfaction of the judgment ;^^ and this is the present rule.^^ Where an appeal from the judgment is pending, on which a stay of execution is granted, the surrogate will refuse leave to issue execution on the judgment, until the result of the appeal is announced.®* At least six days' notice of the application for the order must be personally served upon the executor or administrator, unless it appears that service cannot be so made with due diligence ; in which case, notice must be given to such persons, and in such manner, as the surrogate directs, by an order to show cause why the application should not be granted.^® The order made upon the application is appealable, and the adjudica- tion in respect to the sufficiency of assets is now reviewable.^* 50 Matter of Thompson, 41 Barb. 157; Meleher v. Fisk, id. 22; Matter 237. of Lazelle, 16 Misc. 515; 40 N. Y. 51 Matter of Jansen, 1 Connoly, 362 ; Supp. 343 ; Matter of Hesdra, 23 id. Matter of MeCullough, 18 Misc. 721; 842; Matter of Steinan, 23 App. Div. 43 N. Y. Supp. 968. See Co. Civ. 550; 48 N. Y. Supp. 886. See post, Proc, § 1814. § 688. 52 Mitchell V. Mount, 31 N. Y. 356. 5* Keyser v. Kelly, 4 Redf. 157. The application will be denied where 55 Co. Civ. Proc, § 1826. the amount of assets does not appear 56 Co. Civ. Proc, § 2552 ; Mitchell (Matter of Dougherty, 15 St. Rep. v. Mount, 31 N. Y. 356. And see St. 743) ; or where the assets have been John v. Voorhies, 19 Abb. Pr. 53. accounted for and distributed. (Mat- The former statute provided that the ter of Hathaway, 24 N. Y. Supp. 468.) order granting leave to issue an exe- 53 Co. Civ. Proc, § 2723 ; Hauselt v. cution was not appealable, except on Gano, 1 Dem. 36 ; Matter of Kelsey, giving a bond, etc. 4 L. Bui. 56 ; Keyser v. Kelly, 4 Redf. §§ 682, 683. Administration of Estate, Etc. 566 § 682. Judgments for legacies and distributive shares. — Where the judgment is for a legacy or distributive share, the surrogate, before granting an order, permitting an execution to be issued, may, " and, in a proper case, must, require the applicant to file, in his office, an undertaking to the defendant, in such a sum, and with such sureties, as the surrogate directs, to the effect that if, after collection of any sum of money by virtue of the execu- tion, the remaining assets are not sufficient to pay all sums, for which the defendant is chargeable, for expenses, claims entitled to priority as against the applicant, and the other legacies or distributive shares, of the class to which the applicant's claim belongs, the plaintiff will refund to the defendant the sum so collected, or such ratable part thereof, with the other legatees or representatives of the same class, as is necessary to make up the deficiency." ®^ § 683. Judgments against the decedent A different rule pre- vails with regard to the issuing of executions on judgments ob- tained against the decedent in his lifetime, or after his death, if entered on a verdict rendered before his death.®* It is provided, generally, ®® xhat no execution to collect a sum of money can be issued against the property of a judgment debtor, who has died since the entry of the judgment, except under an order of the court from which the execution is to be issued, and upon the decree of the Surrogate's Court w^hich granted the letters upon the judgment debtor's estate.®" "After the expiration of one year from the death of a party, against whom a final judgment for a sum of money, or directing the payment of a sum of money, is rendered, the judgment may be enforced by execution against any property on which it is a lien with like effect as if the judg- ment debtor was still living."®^ 57 Co. Civ. Proc, § 1827. statute (L. 1850, c. 295) on this sub- B8 The former rule (L. 1830, c. 320, jeet, and incorporates the rulings of § 23) that, to entitle the judgment the court in Marine Bank v. Van creditor to leave to issue an execution. Brunt, 49 N. Y. 161; approving Al- the judgment must have been had den v. Clark, 11 How. Pr. 209, and " after a trial at law upon the merits," Frink v. Morrison, 13 Abb. Pr. 80, is abrogated. See, however. Smith v. and disapproving Wilgus v. Bloodgood, Howell (2 Eedf. 328), and Schmitz v. 33 How. Pr. 289, and Flanagan v. Langhaar (88 N. Y. 503), giving a Tinen, 5 Barb. 587. It was set- history of the legislation on the sub- tied, by the Court of Appeals, that ject prior to the Revised Statutes, and the Act of 1850 {supra) did not super- holding that the provisions applied sede the provisions of the Code, regu- only where the executor disputed the lating the procedure in the court in debt, and subjected the creditor to lit- which a judgment is recovered, for igation. enforcing the same after the death of 58 Co. Civ. Proc, § 1379. the debtor. (Wallace v. Swinton, 64 60 Co. Civ. Proc, § 1380. This sec- N. Y. 195.) tion entirely remodels the former ei Co. Civ. Proc, § 1380, 567 Administeation of Estate, Etc. §§ 684-686. § 684. Leave to issue execution. — "An execution shall not be issued, unless an order, granting leave to issue it, i^ procured from the court from which the execution is to be issued, and a decree, to the same effect, is procured from a Surrogate's Court of this State, which has duly granted letters testamentary or letters of administration upon the estate of the deceased judg- ment debtor." ®" § 685. Continuance of lien of judgment — Where the lien of the judgment was created as prescribed in section 1251 (by docketing in county clerk's office) , " neither the order nor the decree can be made until the expiration of three years after letters testa- mentary or letters of administration have been duly granted upon the estate of the decedent ; and for that purpose such a lien, exist- ing at the decedent's death, continues for three years and six months thereafter, notwithstanding the previous expiration of ten years from the filing of the judgment-roll. But where the decedent died intestate, and letters of administration have not been granted within three years after his death, by the Surrogate's Court of the county in which the decedent resided at the time of his death, or if the decedent resided out of the State at the time of his death, and letters testamentary or of administration have not been granted within the same time by the Surrogate's Court of the county in which the property, on which the judgment is a lien, is situated, such court may grant the decree, where it appears that the decedent did not leave any personal property within the State upon which to administer. In such case, the lien of the judgment existing at the decedent's death continues for three years and six months as afore- said." «^ § 686. Execution without leave. — The foregoing provisions with respect to the necessity of leave granted, before execution can is- sue, are, however, expressly declared not to apply " to real estate which shall have been conveyed, or hereafter may be conveyed, by the deceased judgment debtor during his lifetime, if such con- veyance was made in fraud of his creditors, or any of them; and any judgment creditor of said deceased, against whose judgment said conveyance shall have been, or may hereafter be, declared 62 Co. Civ. Proc, § 1380; Matter of ings may, nevertheless, be instituted Phelps, 6 Misc. 397; 26 N. Y. Supp. for the sale of the real property to 774. It is immaterial to which court pay debts during the three years, after application is first made. (Atlas, etc., grant of letters. (lb.) See Matter Co. V. Smith, 52 App. Div. 109; 64 of Gates, 44 St. Eep. 104; 22 Civ. N. Y. Supp. 1044.) Proc. Rep. 241; Atlas, etc., Co. v. 63 Co. Civ. Proc, § 1380. Proceed- Smith. §§ 687, 688. Admiwisteatioh- of Estate, Etc. 568 fraudulent by the judgment or decree of any court of competent jurisdiction, may enforce Ms said judgment against such real prop- erty, with like effect as if the judgment debtor was living, and it shall not be necessary to obtain leave of any court or oiBcer to is- sue such execution; and the same may be issued at any time to the sheriff of the county where such property is or may be situated." "* § 687. Leave, how obtained — It will be seen that a double pro- ceeding is necessary. First, the application to the court from which the execution is to be issued should be by motion, on notice " to the person or persons whose interest in the property will be affected by a sale by virtue of the execution, and also to the exec- utor or administrator of the judgment debtor." ^^ The persons interested in the property are necessarily the widow, the heirs and next of kin, terre-tenants, and devisees, if any. It may frequently embarrass the moving party to obtain the names of these persons and their residences, and, if any of them are nonresidents, to serve them personally with notice of the application. The statute leaves the manner of service of notice of the application to be prescribed by the General Rules, but as these rules fail to prescribe any man- ner of service, it is for the court to direct bow service may be made, — e. g., by publication — in an order to show cause. It is provided, generally, that leave to issue execution shall not be granted except on proof, by affidavit or otherwise, satisfactory to the court, that the judgment remains wholly or partially unsatis- fied.^® Second, the application to the Surrogate's Court is by regular special proceeding, commenced by petition and citation served in the usual manner.^'' § 688. Petition for leave.— The petition should set forth the ' facts of the administration of the estate of the judgment debtor, or the recovery of the judgment, the granting of leave by the court from which the execution is to be issued, etc., and the names and residences, so far as laiown, of the persons whose interests in the property will be aifected by a sale by virtue of the execution. The 64 Co. Civ. Proc, § 1380. The same scribed, and not against any other section declares that a description of property, either real or personal; and the property against which the execu- all provisions of law relating to the tion is sought to be enforced, shall sale and conveyance of real estate on have indorsed on it the words — " is- execution and redemption thereof sued under section thirteen hundred shall apply thereto." and eighty of the Code .of Civil Pro- 65 Co. Civ. Proc, § 1381, subd. 1. cedure;" "whereupon said sheriff shall 68 Co. Civ. Proc, § 1381, subd. 1. enforce the execution as therein di- 67 Co. Civ. Proc, § 1381, subd. 2. rected against the property so de- 569 Admijstistratiob- of Estate, Etc. § 689. prayer should be for a citation directed to such interested persons, including the executor or administrator, to show cause why leave to issue execution should not be granted. The surrogate may make such a decree in the premises as justice requires. An accounting will not necessarily be had before granting the leave prayed for. If it appears by the petition or affidavits, that the representative has sufficient assets in hand applicable to the payment of the judg- ment, or a stated proportion of it, and this is not controverted by the representative, this will warrant the granting of the order. But unless the ability of the executor to pay the judgment from the funds of the estate does so appear, the issuing of an execution would be unjustifiable. And if the petition omits to allege the possession, by the executor, of assets applicable to the judgment, and the executor swears that there is nowhere any property of decedent, the proceeding should be dismissed.^* The amount of the assetsj as near as it can be given, should be stated. It is only in case of a denial of the allegations of the petition, that an order for an accounting, or a reference to take proof, will be granted.^® The surrogate has no power to determine, on an application of this kind, whether the judgment creditor is indebted to the estate in an amount which should be offset against the amount of the judg- ment,™ nor whether the judgment was fraudulently obtained or not. The court in which the judgment was obtained is the proper tribunal to determine the validity of its own judgment. '^^ § 689. Compelling payment by surrogate's order The authority vested in the surrogate to decree the payment of a debt, or a propor- tional part thereof, in advance of the final accounting, is to be exercised in conformity with, not in hostility to, the general prin- ciples of equity among creditors, and only in cases where the con- templated payment can be made consistently with the rights of all parties interested in the estate.^^ The nature of the debt, whether equitable or legal, is not material, so long as it is " a claim or demand upon which a judgment for a sum of money, or direct- 68 Hauselt v. Gano, 1 Dem. 36. See 72 Thompson v. Taylor, 72 N. Y. 32. Matter of Thurber, 37 Misc. 155; 74 An executor should not be directed to N. y. Supp. 949; Matter of Gall, 40 pay out of the assets the amount of a App. Div. 114; 57 N. Y. Supp. 835. deficiency judgment recovered against 69Keyser v. Kelly, 4 Redf. 157. See the estate, where another mortgage is Matter of Congregational, etc., Soc, about to mature and it is question- 34 App. Div. 387, 54 N. Y. Supp. 269, able whether the property is sufficient and § 681, ante. to satisfy such mortgage. (Matter of 70 Cleveland v. Whiton, 31 Barb. Wiener, 9 App. Div. 621; 40 N. Y. 544. Supp. 1027.) 71 Freeman v. Nelson, 4 Redf. 374. See § 692, post. §§ 690-692. Administeatiok- of Estate, Etc. 570 ing the payment of money, could be recovered in an action," ^^ and has been liquidated or is undisputed.^* A judgment creditor may take this proceeding instead of applying for leave to issue execution. § 690. Application, when and by whom made. — At any time after six months have expired since the grant of letters, a creditor may apply to the surrogate, by petition, for an order directing the representative to pay his claim, or its just proportional part.^^ The word " creditor " as here used means a person to whom the decedent was indebted in his lifetime, or such person's assignee.^® Consequently, a defendant who has recovered a judgment for costs in an action by an administrator is not a " creditor " en- titling him to such an order." A citation must issue requiring the representative to show cause why such an order should not be granted. ^^ § 691. Dismissal of proceeding on the answer. — The court must, upon the hearing, " make such a decree in the premises as justice requires." But the petition must be dismissed, " where the execu- tor or administrator files a written answer, duly verified,''^ setting forth facts which show that it is dovibtful whether the petitioner's claim is valid and legal, and denying its validity or legality, abso- lutely, or upon information and belief." ^'' § 692. Application by a judgment creditor The court may in- quire into and pass upon alleged payments made to apply upon 73 Co. Civ. Proc, § 2514, subd. 3. word " creditor," it was held, that one See Babcock v. Lillis, 4 Bradf. 218; 4 holding a claim for funeral expenses Abb. Pr. 272; Thompson v. Taylor, 71 could not maintain the proceeding, as N. Y. 217. But an agreement for the he was neither a creditor or a person settlement of a disputed claim, which interested in the estate. ( Matter of the representative refused to perform, Flint, 15 Misc. 598; 38 N. Y. Supp. cannot be enforced in such a proceed- 188.) ing. (Matter of Bronson, 69 App. TTHall v. Dusenbury, 38 Hun, 125. Div. 487; 74 N. Y. Supp. 1052.) See Matter of Jansen, 1 Connoly, 362; T4 Matter of Walker, 70 App. Div. Matter of MeCullough, 18 Misc. 721. 263; 74 N. Y. Supp. 971; Matter of T8 Under the former statute (2 R. Stevenson, 77 Hun, 203; 28 N. Y. S. 116, § 18), the court had the power Supp. 362. to direct payment of the claim with- es Co. Civ. Proc, § 2722, as amended out citing the persons interested in 1893 (former § 2717). the estate. (Campbell v. Bruen, 1 76 Matter of Moderno, 63 Hun, 261; Bradf. 224.) See St. John v. Voor- 28 Abb. N. C. 57. On^ who acquired hies, 19 Abb. Pr. 53. the claim by subrogation merely, from 79 The want of a verification is having voluntarily paid decedent's waived unless objection is made by debts, although there was no formal the claimant. (Matter of Corbett, 90 assignment, is a creditor and may in- Hun, 182; 35 N. Y. Supp. 945.) stitute the proceeding. '(lb.) See 80 Co. Civ. Proc, § 2722, as amended Matter of. Solomon, 4 Redf. 509. Prior 1893 (former § 2718, subd. 1). See to the amendment, in 1900, of Co. Civ. Matter of Stevenson, 77 Hun, 203 ; 28 Proc, § 2514, subd. 3, defining the N. Y. Supp. 362. 571 Administeation of Estate, Etc. § 692. the judgment, and determine the amount due thereon, and may also determine who is the owner of the judgment and entitled to the money; but he has no jurisdiction to determine whether there has been an accord and satisfaction, or whether the estate is entitled, in equity, to a release or discharge, either in whole or in part, from the judgment.*^ Where, therefore, a judgment against a decedent is disputed or rejected by the representative on its presentation for payment, it is not necessary for the judgment creditor, as it is for creditors whose claims are not in judgment, to sue over again.*^ The judgment is, prima facie, a valid subsist- ing claim against the estate, and the surrogate cannot try the question of the existence of the judgment, or the assertion, by the representative, of a set-off against it, which would amount to a suit in equity for the set-off.*^ By this is not meant that the sur- rogate may not require competent proof of the fact of the judg- ment. A transcript of the judgment is no legal evidence of its ex- istence ; the only proper proof is the judgment-roll itself, and this must show the jurisdiction of the court which granted it. Unless it contains proof of service of the summons, or of appearance by the defendant, there is no proof of jurisdiction and no proper 81 MeNulty v. Hurd, 72 N. Y. 518; enty-one. Beyond this, the surrogate Matter of Miller, 70 Hun, 61 ; 23 has no jurisdiction to try and deter- N. Y. Supp. 1104. An answer to a mine questions in respect to the va- petition to compel payment of a judg- lidity of judgment. There may be ment must, in order to oust the surro- grounds for setting aside judgments, gate of jurisdiction, set forth facts as if obtained by fraud, or where there constituting a defense to, or avoidance has been an accord and satisfaction ; of, the judgment. (Salomon v. Hei- and there may be other grounds for chel, 4 Dem. 176). It seems, that the relief, such as is a set-oflF and the like, remedy of the executors or adminis- or the estate of the deceased may be trators to prevent the enforcement of entitled in equity to a release or dis- the judgment, and to obtain relief, charge, either in whole or in part, where the surrogate has no jurisdic- from the judgment, and, as to all tion to grant it, is by resort to the these, I can find no warrant in the proper judicial tribunals. This may statute for the exercise of jurisdiction be had either before or after a decree by the surrogate to adjudicate them, for the payment of the judgment, and To afErm such a power would open the a restraining process obtained either door to a wide field of jurisdiction in to prevent the decree or its enforce- law and equity by Surrogates' Courts, ment. (McNulty v. Hurd, supra.) not contemplated by the statute, in- " We are of opinion," said Church, C. consistent with the limited powers J., in that case, " that the surrogate conferred, and, in some cases, sub- may inquire into, and pass upon, pay- versive of the right of trial by jury." ments made to apply upon such judg- 82 MeNulty v. Hurd, supra. See ments, and determine the amount due Forman v. Lawrence, 6 Sup. Ct. (T. & thereon. He may also determine who C.) 640; Matter of Browne, 35 Misc. is the owner of the judgment and en- 362. titled to the money. This power is 83 Per Folger, J., Stilwell v. Car- necessary to enable the surrogate to penter, 62 N. Y. 639. See the same make the decree, and is fairly infer- case on a former appeal, 59 N. Y. 414. able from the language of section sev- § 693. Administeation of Estate, Etc. 572 evidence of the existence of the judgment.^* The surrogate will not direct payment of a judgment pending an appeal from it by the representatives.^^ § 693. Same; claims not in judgment — Where, in such case, the representative se1ii8 forth a defense not palpably unfounded, or a counterclaim or an equitable set-off,^^ the Surrogate's Court has no jurisdiction to determine them f if the validity, or the amount, of the claim is put in issue by the sworn answer of the represen- tative, the court may look into the matter with a view of ascertain- ing whether there is a reasonable doubt of the validity of the claim, but no farther. Where the evidence is suspicious, the petition will be dismissed.** Although the representative may have, at one time, admitted the claim, his present contest deprives the court of jurisdiction to determine it.** But where he has allowed as a claim against the estate, the amount of a note made by tes- tator upon which certain payments have been indorsed, such allow- ance implies that the note has not been paid, and that, by the pay- ments as indorsed thereon, it has been kept in life as a claim against the maker.^" If the representative merely disputes the fact of the allowance of the claim, it is not a dispute about its validity and legality which requires a petition for its payment to be dismissed, but the surrogate may decide whether the claim has been rejected or allowed, and if he decides it has been allowed, he may properly direct its payment.*^ The answer ought to be in writing,®* and must set forth facts showing that the validity or legality of the 84 Archer v. Furniss, 4 Redf. 88. 518; Matter of Lyman, 33 St. Rep. A judgment-roll, from which proof of 851 ; 11 N. Y. Supp. 530. the jurisdictional facts has been omit- 88 Plagg v. Ruden, 1 Bradf . 192 ; ted, cannot be cured by affidavits read Campbell v. Bruen, id. 224. in the Surrogate's Court. (lb.) The 89Ruthveu v. Patten, 1 Robt. 416; judgment is binding upon the surro- 2 Abb. Pr. (N. S.) 121; Jennings v. gate, as to all matters which might Phelps, 1 Bradf. 485; Mahoney v. have been pleaded as defenses to the Gunter, 10 Abb. Pr. 431. Compare action. He cannot try the validity of Matter of Miles, 170 N. Y. 74. But the judgment. (Keyser v. Kelly, 4 the denial of the application is not Eedf. 157.) See Matter of Clarke, 57 conclusive against the justness of the App. Div. 430; 68 N. Y. Supp. 243. claim, and hence does not prevent the 85 Curtis V. Stilwell, 32 Barb. 354. creditor from maintaining an action 86 Hall V. Dusenbury, 4 Dem. 181; upon it. {Fitzpatrick v. Brady, 6 affd., 38 Hun, 125. See Ashley v. Hill, 581.) See Butler v. Hempstead, Lamb, 17 St. Rep. 889. 18 Wend. 666; Magee v. Vedder, 6 8T Tucker v. Tucker, 4 Keyes, 136; Barb. 352. Cooper V. Felter, 6 Lans. 485 ; Levi- 90 Matter of Kellogg, 104 IST. Y. 648. ness V. Cassebeer, 3 Redf. 491 ; Matter 91 Matter of Miles, 170 N. Y. 75, of Leslie, id. 280; Bevan v. Cooper, thus overruling Matter of Cowdrey, 5 72 N. Y. 317; Shakespeare v. Mark- Dem. 453. ham, id. 400; Stilwell v. Carpenter, 92 Matter of McKiernan, 4 Civ. Proc. 59 id. 414; McNulty v. Hurd, 72 id. Rep. 218. But see Lambert v. Craft, 98 N. Y. 342. 573 Administratiojv of Estate, Etc. § 694. claim is doubtful and also a denial of its validity or legality ; both conditions must concur.®^ It is not enough for the answer merely to deny the validity of the claim, vrithout stating aiErmatively the facts constituting a defense, or justifying a doubt of its legal- ity. It is enough to warrant a dismissal of the motion that the answer avers that the demand is excessive in amount, — the issue so raised being one which the Surrogate's Court has no authority to determine.^* § 694. Dismissal for want of assets — The court must likewise disfniss the proceeding " where it is not proved, to the satisfaction of the surrogate, that there is money or other personal property of the estate, applicable to the payment or satisfaction of the petitioner's claim, and which may be so applied, without injuri- ously affecting the rights of others, entitled to priority or equality of payment or satisfaction." *^ The burden is on the petitioner, not only to show the validity of the claim, but also to prove " to the satisfaction of the surrogate " that there is property of the estate applicable to its payment.^^ A petition which alleged the existence of a fund, but stated that the executor claimed the pend- ency of a suit respecting it, was held not to contain necessary facts and was dismissed.®^ Where the estate is insolvent, the court will not decree the payment on even a proportional part of the claim, without a settlement of the representative's account first had.^® The surrogate may, on his own motion, order an accounting, but the petition in this proceeding cannot embody a prayer for an inter- 93 Lambert v. Craft, 98 N. Y. 342 ; the answer set forth that the claim Matter of Miller, 70 Hun, 61; 23 had been the subject of dispute, that N. Y. Supp. 1104. In that case, the the items thereof had been demanded petition set forth tl%at the claim had so that it could be specifically re- been presented to the executors and jeeted; that the sale had been made had not been rejected or paid, and five years before the demand, and that the statutory time had elapsed, upon information and belief denied The executors orally denied the alle- the legality of the claim, — Held, the gations. Proof was given of pre- petition was properly dismissed. See sentation of the claim to one of the also Matter of Whitehead, 38 App. executors, that it had not been re- Div. 319; 56 N. Y. Supp. 989; Matter jected, and that the personal estate of Stevenson, 77 Hun, 203; 28 N. Y. was sufBeient to pay it. The execu- Supp. 362. tors did not ask for an accounting, or 9* Koch v. Alker, 3 Dem. 148. show the existence of other debts. 95 Co. Civ. Proc, § 2722, as amended Held, that the surrogate properly de- 1893 (former § 2718, subd. 2). creed payment. It was also held, that 96 Lynch v. Patchen, 3 Dem. 58. the petition need not set forth the The inventory alone is insufficient. facts which make out the debt. In (Matter of Corbett, 90 Hun, 182; 35 Matter of Fargo (44 St. Eep. 812; N. Y. S'upp. 945.) 18 N. Y. Supp. 670), the claim was 9T Baylis v. Swartwout, 4 Redf. 395. for damages arising from the alleged See Matter of Bentley, 16 Abb. Pr. 89. fraudulent sale of a printing house; ssMcKeown v. Pagan, 4 Redf. 320. §§ 695, 696. Administration of Estate, Etc. 574 mediate accounting; nor will the representative be permitted, on the return of the citation, to file a petition for a settlement of his accounts.®^ The two proceedings are essentially distinct, and can- not be consolidated.-^ By analogy to the Statute of Limitations, the proceeding should be instituted within the same time in which suits of the same character are required to be commenced in a court of law or of equity.^ § 695. Effect of decree — Where the petition is dismissed, on either of the grounds stated, the decree must dismiss it " without prejudice to an action or an accounting, in behalf of the peti- tioner." * A decree, directing payment to a creditor of, or a per- son interested in, the estate or fund, or an order permitting a judgment creditor to issue an execution against an executor or administrator, is declared to be, except upon an appeal therefrom, conclusive evidence that there are sufficient assets in the represen- tative's hands to satisfy the sum which the decree directs him to pay, or for which the order permits the execution to issue.* It has been questioned, however, whether an executor or administra- tor, acting in good faith, will be protected in paying a debt in full, pursuant to the surrogate's decree, where it turns out that, by reason of losses or other causes, the remaining assets are insuffi- cient to fully pay the other creditors. It seems that he will be protected.® Such a decree, however, is provisional to this extent, that if it remains unexecuted when the general decree for the dis- tribution of the estate among the creditors is made, it must, in case of insufficiency of assets to pay the debts in full, give way to a paramount authority providing for equality between the credit- ors; and the creditor obtaining the decree cannot claim a prefer- ence under it. It is not necessary in such caSe to procure the decree to be formally vacated.* § 696. Docketing and enforcing decree for payment — Where the court directs the payment of the petitioner's claim, the party in whose favor the decree is made may file a duly attested transcript in the office of the county clerk, who is thereupon required to enter it in his docket-book of judgments. The transcript should state all the particulars with respect to the decree which are re- 99 Baylis v. Swa-rtwout, 4 Redf. 395. 3 Co. Civ. Proc, § 2722, as amended 1 Baylis v. Swartwout, 4 Redf. 395. 1893. 2MeCartee v. Camel, 1 Barb. Ch. 4 Co. Civ. Proc, § 2552. See Mat- 455; House v. Agate, 3 Redf. 307; ter of Clark, 2 Abb. N. C. 208. Matter of Depuv, 28 St. Rep. 42; 8 5 Thompson v. Taylor, 72 N. Y. 32. N. y. Supp. 229'. 6 Thompson v. Taylor, 72 N. Y. 32. 575 Administkation of Estate, £tc. § 697. quired to be entered in the clerk's docket-book in the case of judg- ments of the Supreme Court. The docketing of such a decree has the same force and effect as a judgment of the Supreme Court ; it may be assigned or satisfied, and the lien thereof may be sus- pended or discharged in the same manner as such a judgment." The decree may be enforced by execution,^ or by proceedings as for a contempt;® which are fully described in a subsequent chap- ter.^** But the execution creditor cannot institute supplementary proceedings for the sequestration of the property of the estate to the payment of the judgment." ARTICLE THIRD. PAYMENT OF TRANSFER TAX. § 697. History of the statute. — A new scheme of taxation, known as the collateral inheritance tax, was inaugurated in this State by the act of June 10, 1885, entitled "An act to tax gifts, legacies and collateral inheritances in certain cases," ^^ which was, to some extent, superseded by an amendatory act passed in 1887.''^ Both these acts, with those amending the latter,^* were repealed in 1892, and a new act passed, which, while readopting the gen- eral scheme of the original statute, and its machinery for the assessment and collection of the tax, did much toward correcting " the singularly involved and obscure phraseology " of the original enactments. As it imposed the tax, within certain limits, upon direct, as well as collateral, inheritances, and other successions, the act was entitled "An act in relation to taxable transfers of property." ^° In 1896, this act was itself repealed, and its provi- TCo. Civ. Proc, § 2553; revising L. l*L. 1888, c. 307, and u. 479; L. 1837, c. 460, §§ 63, 64; L. 1844, c. 1891, c. 215. 104, § 2. 15 L. 1892, c. 399. The Act of 1885 8 Co. Civ. Proc, § 2554. It cannot went into effect on June 30, of that . be enforced by an order to show year, and did not apply to property cause. (Berrian's Estate, 19 Daily passing under the will of one who Reg. No. 26.) died after its passage, but before that 9 Co. Civ. Proc., § 2555. date. (Matter of Howe, 112 N. Y. 10 See c. XXI, post. 100 ; overruling Matter of Charda- 11 Collins V. Beebe, 54 Hun, 318. voyne, 5 Dem. 466.) Its provisions That was the case of a judgment re- continued in force until the Act of covered against a representative, and 1887 went into effect (Warriner v. an execution issued by permission of People, 6 Dem. 211), that is, imme- the Surrogate's Court. diately on the governor's signing it. 12 L. 1885, c. 483. The Act of 1885 (Matter of Kemeys, 56 Hun, 117; 9 has been declared not to be unconsti- N. Y. Soipp. 182.) The effect of the tutional. (Matter of McPherson, 104 repealing clause in the Act of 1892, N. Y. 306.) is declared by the statute itself. So 13 L. 1887, c. 713. far as its provisions are substantially § 698. Admih"isteatiott of Estate, Etc. 576 sions incorporated into the General Tax Law, whicli, with certain amendments since made, is the only existing statute embracing this subject ;-'^ and while many of the decisions, to be referred to, were made under the former statute, their applicability to the present act will be easily discerned. § 698. Taxable transfers — With certain exceptions and limita- tions hereafter mentioned, a tax at the rate of five per cent, upon its clear market value is imposed on any real or personal property, of the value of five hundred dollars or over, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations, not exempt by law from taxation on real or personal property, in the following cases: " 1. When the transfer is by will or by the intestate laws of this State from any person dying seized or possessed of the prop- erty while a resident of the State. " 2. When the transfer is by will or intestate law, of property within the State, and the decedent was a nonresident of the State at the time of his death. " 3. When the transfer is of property made by a resident or by a nonresident, when such nonresident's property is within this State, by deed, grant, bargain, sale, or gift made in contempla- tion of the death of the grantor, vendor, or donor •^'' or intended the same as those of laws existing on present law went into effect, are reg- April 30, 1892, they " shall be con- ulated by that law, though the law in strued as a continuation of such laws, existence at the decedent's death must modified or amended according to the govern, as to rights accrued and lia- language employed in this act, and bilities incurred. (Matter of Sloane, not as new enactments," and "refer- 154 N. Y. 109; Matter of Sterling, 9 ences, in laws not repealed, to provi- Misc. 224.) The right of the State sions of law incorporated into this to the tax accrues at the date of the act, and not repealed, shall be con- death of the decedent, and not at that strued as applying to the provisions of its actual imposition, and hence is so incorporated." Such also was the not affected by intervening legisla- effect of the Act of 1887 upon that of tion. (Matter of Prime, 04 Hun, 50; 1885, as well as of the several acts affd., 136 N. Y. 347.) See Moore v. amendatory of that of 1887, except Mausert, 49 id. 332; People v. Su- that new or changed provisions were pervisors, 67 id. 109; Matter of John- to be understood as having been en- son, 47 St. Rep. 391; Matter of acted at the time the later act took Davis, 149 N. Y. 539. effect. (Matter of Miller, 110 N. Y. ML. 1896, c. 908, § 220 et seq.; 223; Matter of Arnett, 49 Hun, 599.) L. 1897, c. 284; L. 1901, c. 173. Compare Matter of Kemeys, supra. 17 The words " in contemplation of It was further provided by the Act of death " refer to a gift causa mortis. 1892, that all rights acquired or lia- (Matter of Cornell, 66 App. Div. 162; bilities incurred under any of the 73 N. Y. Supp. 32; 170 N. Y. 423.) A acts thereby repealed, should not be gift causa mortis, delivered to a person impaired or affected, but that provi- other than the beneficiary, is subject sion was not incorporated into the to the tax. ( Matter of Crosby, 46 St. Act of 1896, and hence is no longer Rep. 442. ) Such a gift, made while the in force. It may be said, however, Act of 1887 was in force, is taxable, that proceedings instituted after the (Matter of Edwards, 85 Hun, 436; 577 Administration of Estate, Etc. §§ 699, 699a. to take effect, in possession or enjoyment, at or after sucli death " (§ 220). § 699. " Estate " and " property," defined The words " estate " and " property," as used in the statute, mean the same thing, to wit : " the property or interest therein of the testator, intestate, grantor, bargainor, or vendor, passing or transferred to those not herein specifically exempted from the provisions of this article, and not as the property or interest therein passing or transferred to the individual legatees, devisees, heirs, next of kin, grantees, donees, or vendees, and shall include all property or interest therein, whether situated within or without this State." ^^ The definition includes an estate, income or interest for a term of years, or for life, or determinable upon any future or contingent estate, or a remainder or reversion or other expectancy, real or per- sonal.-'® § 699a. Retroactive effect of act — The statute declares that " such tax shall be imposed when any such person or corporation becomes beneficially entitled, in possession or expectancy, to any property or the income thereof by any such transfer, whether made before or after the passage of this act " (§ 220),^" and that " when- ever any person or corporation shall exercise a power of appoint- ment derived from any disposition of property made either before or after the passage of this act, such appointment when made shall be deemed a transfer taxable under the provisions of this act in the same manner as though the property, to which such appoint- 32 N. y. Supp. 901.) For eases of interest of the beneficiary. (Matter transfers of property held to have of Sterling, 9 Misc. 224.) been made in contemplation of death, 19 L. 1896, c. 908, § 230, as amended see Matter of Green, 153 N. Y. 223; by L. 1901, c. 173. Matter of Ogsbury, 7 App. Div. 7 1 ; 20 This provision was doubtless in- Matter of Bostwick, 160 N. Y. 489 ; tended to meet the judicial interpre- Matter of Cornell, 170 id. 423; Mat- tation given to the former statutes, ter of Barlow, 30 Misc. 27; Matter that estates passing prior to their of Brandreth, 169 N. Y. 437; Mat- passage, though subject to a prior es- ter of Sherer, 36 Misc. 502 ; Matter tate vfhich did not fall in until after of Miller, 37 id. 449. Contra, Mat- the statute became operative, were ter of Mahlstedt, 67 App. Div. 148; not subject to the tax. (Matter of Matter of Bullard, 37 Misc. 663 ; Mat- Cogswell, 4 Dem. 248 ; Matter of ter of Baker, 38 id. 151; Matter of Brooks, 6 id. 165; Matter of Hen- Crary, 30 id. 72; Matter of Thorne, drieks, 1 Connoly, 301.) See Matter 44 App. Div. 8; 162 N. Y. 238; Mat- of Travis, 19 Misc. 393; 44 N. Y. ter of Masury, 28 App. Div. 580 ; affd., Supp. 349 ; Matter of Moore, 90 Hun, 159 N. Y. 532; Matter of Spaulding, 162; 35 N. Y. Supp. 782; Tallmadge 49 App. Div. 54; affd., 163 N. Y. 607; v. Seaman, 147 N. Y. 69. In the last Matter of Edgerton, 35 App. Div. 125 ; case it was said that the clause affd., 158 N. Y. 671. quoted in the text refers only to gifts ISL. 189G, c. 908, § 242, as amended causa mortis, and not to transfers by by L. 1898, e. 88. Under the Act of will or intestacy. 1885, the word " estate " meant the 37 §§ 700, 701. Administratiojst of Estate, Etc. 578 ment relates, belonged absolutely to the donee of such power and had been bequeathed or devised by such donee by will ; and when- ever any person or corporation possessing such a power of appoint- ment so derived shall omit or fail to exercise the same within the time provided therefor, in whole or in part, a transfer taxable under the provisions of this act shall be deemed to take place to the extent of such omission or failure, in the same manner as though the persons or corporations thereby becoming entitled to the possession or enjoyment of the property, to which such power related, had succeeded thereto by a will of the donee of the power failing to exercise such power, taking effect at the time of such omission or failure." ^^ § 700. Eule of construction. — Where the question is, whether a certain subject of taxation is embraced within the statute, the rule has been stated to be that the statute should be strictly construed in favor of the citizen, since it assumes to impose a special burden upon particular property and persons, and is not a general tax;^ but this rule does not apply to a case where a particular subject is within the scope of the statute, and exemption from taxation is claimed on the ground that the Legislature has not provided proper machinery for accomplishing the legislative purpose in the par- ticular instance. In such case, a liberal, rather than a strict, con- struction should be applied, and if, by a fair and reasonable con- struction of its provisions, the purpose of the statute can be carried out, that interpretation ought to be given, to effect the legislative intent.^^ § 701. Subject of the tax — The thing taxed is the transfer, that is, the devolution or succession, of property, and not the property itself;^ it is a tax on the privilege of succeeding to 21 L. 1896, u. 908, § 220, as amended aud not the property itself, which is by L. 1897, e. 284. Prior to this taxable. (Matter of Howard, 5 Dem. amendment, where a power of ap- 483; Matter of Tuigg, 15 N. Y. Supp. pointment was not exercised, a gift 548 ; Matter of Sherman, 153 N. Y. 1 ; over took effect under the will, and Matter of Whiting, 150 id. 27.) Under was not taxable. (Matter of Lang- the original section (L. 1892, c. 399, don, 153 N. Y. 6.) See § 723, post. § 22) , declaring that the word " prop- 22 Matter of Enston, 113 N. Y. 174; erty" applied to that "over which Matter of Vassar, 127 id. 1 ; 37 St. this State has any jurisdiction for Eep. 239 ; Matter of Becker, 26 Misc. the purposes of taxation," United 633 ; 57 N. Y. Supp. 940. States bonds, themselves, were not tax- 23 Matter of Stewart, 131 N. Y. 274. able. But by L. 1898, c. 88, the clause 24 Matter of McPherson, 104 N. Y. quoted was stricken out, so that now 306. Hence, a legacy payable out of it would seem that such bonds are the proceeds of United States govern- subject to the tax. (Matter of Plum- ment bonds is subject to the tax, be- mer, 30 Misc. 19; 62 N. Y. Supp. cause it is the passing of the bonds, 1024.) Under the former statute 579 Administration of Estate, Etc. §§ 702, 703. property on the death of the owner. The word " transfer," as used in the statute, is declared " to include the passing of prop- erty, or any interest therein in possession or enjoyment, present or future, by inheritance, descent, bequest, grant, deed, bargain, sale or gift in the manner" prescribed in the statute (§ 242). The words possession and eiijoyment mean the same thing. The possession need not be the actual, immediate custody or occupancy of the thing, but may be a constructive possession, that is, a pos- session which exists in contemplation of law. Hence, if a devisee or heir has a constructive possession, as of an interest in real prop- erty in course of partition, or in the moneys in court realized on a partition sale, his interest therein is assessable under the statute.^* § 702, Taxability as affected by location of property — Under the former statute, the tax was upon the succession to property " within this State," hence real property situated in another State was not subject to the tax here f^ nor were the proceeds of such property, though equitably converted, and sold under the direction of the will, and brought here for distribution.^' But personal property of a resident is subject to the tax, wherever situated, upon the theory, that such property follows the domicile of the owner,^* § 703. Taxability as affected by residence of testator, intestate, etc. — The statute of 1885 'made no discrimination between the prop- erty of intestates and the property of testators, as regards the lia- bility of the one or the other to the payment of the tax.^® The question early arose, whether by the statute of 1885, before its amendment, a tax was intended to be imposed upon a succession of (and the same rule now applies) a by L. 1887, c. 713. Held, that it bequest to the United States was tax- was erroneous to calculate the value able. (Matter of Merriam, 141 N. Y. of her interest as measured by the 479; Matter of Cullom, 5 Misc. 173.) term of its actual duration, but the 25 Estate of Welsh, N. Y. Law J., entire property by which that in- July 28, 1888; Matter of Stiger, 7 terest was supported should be ap- Misc. 268; 28 N. Y. Supp. 163. The praised, and the interest should be transfer of stock to a daughter, — valued by the methods employed at Held taxable, though she survived her the time by the superintendent of in- father only three days, and never re- surance. S. P., Matter of Hall, 36 ceived any dividends, and a transfer Misc. 618. tax would also be imposed upon sue- 28Lorillard v. People (Wolfe Es- eession to her legatees. (Matter of tate), 6 Dem. 268; 19 St. Rep. 263; Borup, 28 Misc. 474; 59 N. Y. Supp. Matter of Dewey, N. Y. Law J., Oct. 1097.) See Matter of Chabot, 44 21, 1889. App. Div. 340; 60 N. Y. Supp. 927; 27 Matter of Swift, 137 N. Y. 77. affd., 167 N. 1'. 280. In Matter 28 Matter of Swift, supra; Matter of Jones (28 Misc. 356), the widow of Dingman, 66 App. Div. 228; 72 of the decedent, having a life estate, N. Y. Supp. 694. died before the appraisal of the 29 Matter of Howard, 5 Dem. 483. transfer tax, which was governed § 703. Administration of Estate, Etc. 580 personal property in this State under the will of a nonresident testator. After much consideration, by the highest authority, it was held that such was not the intention of the Legislature ; that, as to personal property, the act applied only to property within this State belonging to a resident of this State; that personal property belonging to a nonresident, though physically here, could not in law be said to be " within this State," because, by the general rule, such property attends its owner and has its situs at his domicile.^" By the amendatory act of 1887, however, the tax was laid upon the passing of property from a resident of this State, or from a nonresident, if the property or any part thereof should be within the State; and the intention of this amendment was interpreted to be to impose the tax upon the property of a nonresident testator or grantor, actually and physically within this State.^^ As to the personal property of nonresident intestates, it was held that so much of it, at least, as was habitually kept or invested by him here, at the time of his death, was liable to the tax, under the fore- going amendment. ^^ By the scheme of the Act of 1892, the trans- 30 Matter of Enston, 113 N". Y. 174. executors of a nonresident decedent " It is true that this is a fiction of have removed from the State. That law, but it is a fiction which must as to residents the tax was upon the prevail unless there is something in right of succession, but that as to the policy of the statute or its Ian- nonresidents there can be no succes- guage which shows a different legisla- sion tax, the right of a State to im- tive intent. * * ♦ There is nothing pose a tax being based on its dominion in the Act of 1885 from which it can over the property situated within its be inferred that the Legislature meant territory. Compare Matter of Pettit, so far to depart from its general sys- 65 App. Div. 30; Matter of Hubbard, tem and policy of taxation as to im- 21 Misc. 566; Matter of Crerar, 31 pose here a succession tax upon prop- id. 481. erty thus situated. It was dealing 32 Matter of Eomaine, 127 N. Y. with taxation upon property of per- 80; 38 St. Rep. 76. In that case, the sons domiciled here, and not upon court said : " Where the property of property of nonresidents, which had a nonresident is habitually kept, even no situs in this State." (lb., per An- for safety, in this State, we think drews, J.) that the statute applies both in let- 31 Matter of Clark, 29 St. Rep. 650 ; ter and spirit. Such property is 9 N. Y. Supp. 444; Estate of Vinot, within this State in every reasonable 7 id. 517; 26 St. Rep. 610. Compare sense, receives the protection of its Matter of Hall, 29 St. Rep. 367; 8 laws and has ev^ry advantage from N. Y. Supp. 556; Matter of James, government, for the support of which 144 N. Y. 6; 62 St. Rep. 855. In taxes are laid, that it would have if Matter of Embury (19 App. Div. 214; it belonged to a resident. We think 45 N. Y. Supp. 881; aflfd., 154 N. Y. that a fair construction of the act 746) it was said that the jurisdiction permits no distinction as to such of Surrogates' Courts, under the property, based simply upon the resi- amendment of 1887, was limited, as dence of the deceased owner." See to nonresidents, to cases in which a Matter of Embury, supra. It had nonresident decedent had left real es- been held, that a taxable intestate tate within the county, and did not succession, under the Act of 1885, was apply to personal property which the a succession by the intestate laws of 581 Administration of Estate, Etc. §704. f er of the property of a nonresident " by will or intestate law " — i. e., of this State or the State of his domicile, — or " by deed, grant, bargain, sale or gift made in contemplation of death," etc., is subject to the tax ; provided the property is " within this State." The legislative intent seems to be that, for the purpose of taxa- tion, the law of the place where the property actually is shall gov- ern, while for the general purpose of administration and distribu- tion, the law of decedent's domicile will continue to govern. ^^ But it does not seem to have been the intention to include property of a nonresident, casually brought into the State for a temporary purpose. § 704. Transfers under five hundred dollars in value. — By the for- mer statute, " an estate valued at a less sum than five hundred dol- lars was exempt from the tax." "An estate valued " was held to mean not the estate of the decedent, but the estate or interest of the legatee or other taker ; therefore, no tax was imposed upon a particu- lar legacy which did not amount to, or exceed, that sum in value.^^ this State. (Matter of Tulane, 51 Hun, 213; 4 N. Y. Supp. 36.) By L. 1891, c. 215, the operation of the Act of 1885 was extended to prop- erty of nonresidents, within this State at time of death. ■ It was held, un- der this amendatory statute, that notes secured by mortgages of land in another State, and owned by a res- ident of this State, at the time of his death, were subject to the tax, and it was not material that the notes and mortgages were in the hands of the owner's agent in the State where the land was situated. (Matter of Cor- ning, 23 N. Y. Supp. 285.) In Matter of Tliomas (3 Misc. 388), the personal estate of testatrix consisted exclu- sively of her distributive share in the estate of a deceased sister, who re- sided in the State of Ohio at the time of her death, no part of which came into tlie hands of the testatrix before her death. Held, that that portion of her estate was not taxable. Also held, that certificates of stock of corporations created under the laws of other States owned by a, de- cedent at the time of his death were not " property within this State," and hence not subject to taxation under the Act of 1885, or amendatory acts. But in Matter of Boudon (N. Y. Law J., Mar. 1, 1892), it was held, under the authority of the Eomaine case (supra), that such stock was taxa- ble. Compare Matter of Phipps, 77 Hun, 325; 28 N. Y. Supp. 330; affd., 143 N. Y. 641. 33 See Hardenberg v. Manning, 4 Dem. 437. Thus money of a nonresi- dent deposited here is subject to the tax (Matter of Houdayer, 150 N. Y. 37; Matter of Burr, 16 Misc. 89; Mat- ter of Blackstone, 66 App. Div. 127; 74 N. Y. Supp. 508) ; also bonds and stock of domestic, and bonds of for- eign, corporations. (Matter of Whit- ing, 150 N. Y. 27; Matter of Morgan, id. 35; Matter of Pullman, 46 App. Div. 574.) But bonds of domestic corporations held at the decedent's domicile are not taxable (Matter of, Bronson, 150 N. Y. 1 ) , otherwise as to stock of such corporations. (lb.; Matter of Kennedy, 20 Misc. 531; Matter of Neweomb, 71 App. Div. 606.) See, as to life insurance policies. Mat- ter of Abbett, 29 Misc. 567; debts due from nonresident ( Matter of Bent- ley, 31 Misc. 656) ; interest in firm doing business here (Matter of King, 30 Misc. 575) ; mortgages on New York real estate. (Matter of Preston, 37 Misc. 236.) 34 Matter of Leopold, 35 Misc. 369; 71 N. Y. Supp. 1032. See Matter of Romaine, 127 N. Y. 80; Matter of Enston, 113 id. 182. 35 MeVean v. Sheldon, 48 Hun, 163 ; Matter of Miller, 5 Dem. 132; Matter of Hopkins, 6 id. 1. § 705. Administeation of Estate, Etc. 582 On the other hand, an inheritance or a testamentary gift of a value exceeding that sum was taxable to the extent of its whole value, it not being the intention of the Legislature to exempt all taxable estates to the extent of the sym named, but merely to limit the estates upon which the tax should be imposed.^® The language of the Act of 1892 differs, in this regard, from the Act of 1885, — the tax being laid " upon the transfer of any property " of the value of five hundred dollars or over, to persons not exempt, etc. Moreover, " the property " means " the property or interest therein of the testator," and not " the property or interest therein passing or transferred to individual legatees," etc. It is not, there- fore, the property passing to an individual legatee or distributee Avhich must be less than five hundred dollars, in order to entitle the same to exemption, but the amount of all property passing to legatees or distributees of the unexempted class which must be less than five hundred dollars.^'' § 705. Express exemptions and limitations. — The tax attaches only to transfers of property " of the value of five hundred dollars or more" (§ 220), no matter to what description of person the property passes. Certain classes of persons are expressly named (besides those who are already " exempted, by law, from taxa- tion "), transfers to whom are not taxed, or else the amount of tax is reduced in amount. The statute provides that " when the prop- erty or any beneficial interest therein passes by any such transfer to or for the use of any father, mother, husband, wife, child, brother,^* sister, wife or widow of a son or the husband of a daughter,^* or any child or children adopted as such in conformity 36 Matter of Sherwell, 125 K Y. 376 ; Bird (2 Connoly, 376; 32 St. Rep. 35 St. Rep. 403. In that case, the 899), Ransom, 8., of New York, held surrogate had held that a legatee was otherwise. entitled absolutely to an exemption of 37 Matter of Bliss, 6 App. Div. 192; $500 from a legacy of a greater sum, 39 N. Y. Supp. 875; Matter of Flynn, the balance only being assessable for N. Y. Law J., Feb. 25, 1893. It was taxation. ' (32 St. Rep. 1020.) In held, in that ease, that as the prop- Matter of Peclc (2 Connoly, 201; 24 erty passing to those not exempt was Abb. N. C. 365), Coffin, S., of West- oyer $1,800 in value, each of four Chester, held, that as a legacy is not legacies of $100 to strangers were sub- payable until the expiration of a.year, ject to the tax. its " fair market or cash value " at 38 In Matter of Farley (15 St. Rep. testator's death could not be said to 727 ) , testatrix bequeathed all her be its face value, but what it will be property to her executor, individually, worth when the legatee is entitled to agreeing with him at the time of the receive it and may compel its payment execution of the will that the bequest or delivery; hence, that a cash legacy should be in trust for her brother, of $500 was to be appraised at that Held, such trust was within the ex- sum less a year's interest. See also emption of the statute. Matter of Underbill, 2 Connoly, 262 ; 39 A legacy to a husband of a 20 N. Y. Supp. 134. But in Matter of daughter is not subject to the tax, 583 Administeation of Estate, Etc. § 706. with the laws of this State, of the decedent, grantor, donor or vendor, or to any child*** to whom any such decedent, grantor, donor or vendor, for not less than ten years prior to such transfer stood in the mutually acknowledged relation of a parent, provided, how- e%^er, such relationship began at or before the child's fifteenth birthday, and was continuous for said ten years thereafter, or to any lineal descendant" of such decedent, grantor, donor or ven- dor bom in lawful wedlock, such transfer of property shall not be taxable under this act, unless it is personal property of the value of ten thousand dollars or more, in which case it shall be taxable under this act at the rate of one per centum upon the clear market value of such property." *^ It is important to observe, in this connection, .that it is the ag- gregate amount of personal property of the decedent passing to taxable persons, which determines whether the tax shall be im- posed or not. Hence, if all the legacies or distributive shares, passing to persons of that class, aggregate ten thousand dollars or more, any one of such legacies or shares, though less than that amoimt, is subject to the tax.*^ A transfer of real property to one of the exempted class is also within the terms of this exemption and limitation, and although a testamentary distribution of real property requires its conver- sion into personalty, it will not be taxable as personalty.** § 706. Adopted and quasi-adopted children. — Adopted children were not included in the exempted class by the Act of 1885, but were, by the Act of 1887 ;*^ the provisions of which latter act, in although the daughter died before the ^2 L. 1896, c. 908, § 221, as amended testator. (Matter of Woolsey, 19 Abb. L. 1898, e. 88; L. 1901, e. 458. N. C. 232; s. c. as Matter of McGar- 43 Matter of Corbett, 171 N. Y. 516; vey, 6 Dem. 145; Matter of Ray, 13 Matter of Hoffman, 143 id. 327; Mat- Misc. 480.) ter of Taylor, 6 Misc. 277; Matter of 40 The word " child " was, by L. Birdsall, 22 id. 180. 1898, c. 88, inserted in place of the 44 Matter of Sutton, 3 App. Div. word "person," doubtless to meet the 208; affd., 149 N. Y. 618; Matter of decisions of the courts that the ex- Cobb, 14 Misc. 409. Compare Matter emption was not limited to illegitimate of Wheeler, 1 id. 450 ; 22 N. Y. Supp. children. (Matter of Beach, 154 N. Y. 1075; Matter of Mills, 32 Misc. 493. 242; overruling Matter of Hunt, 86 A leasehold interest is personal prop- Hun, 232; Matter of Nichols, 91 id. erty under the exemption clause, al- 140 ; Matter of Stilwell, 34 N. Y. though improvements by the lessee are Supp. 1123.) taxable as realty under the Tax Law, 41 The term " lineal descendants," as (Matter of Althause, 63 App. Div. used in the statute, includes only the 252; affd., 168 N. Y. 670.) direct descendants of the testator or 45 It was accordingly held, that the intestate, and does not include the interests of adopted children, which children of the brothers and sisters of became vested after the Act of 1885 the deceased. , (Matter of Miller, 5 took effect, were subject to the tax, Dem. 132; affd., 45 Hun, 244; Matter notwithstanding the tax was not of Smith, 5 Dem. 90.) formally assessed until after the Act § 706. Administration of Estate, Etc. 584 this regard, were readopted by the Acts of 1892, 1896, and (with certain modifications) the Act of 1901. The adoption must have been made " in conformity with the laws of this State." This does not require the proceedings for adoption to have been instituted in, or under the laws of, this State; hence, where the adoption was effected under proceedings in another State, which substantially conform to the requirements of our own statute, in that regard, the person so adopted is within the operation of the exemption.*® " Tine relation of a parent/' within the meaning of the statute, may arise by circumstances surrounding the commencement and continuance of such relation ; it was the intent of the statute to give this class of cases the benefit of its exempting clause. The statute does not suggest the character of proof, nor require the acknowledgment of the parental relation to be in writing or by declarations in public, or to any person or persons ; so that, if the evidence conclusively shows that the parties understood that their relations were parental, and that they thus lived together in this belief, discharging their duties and obligations to each other upon the theory that such relations existed, such manner of life is a mutual acknowledgment of the relation which each sustains to the other.*'^ The full term of ten years of such acknowledged re- lationship must have been fully completed, in order to secure the benefit of the exemption.** of 1887, with its enlarged exemption, Matter of Fisch, 34 Misc. 146; 69 N. ■went into effect. (Matter of Ryan, 18 Y. Supp. 493.) St. Rep. 992; 3 N. Y. Supp. 136.) « Matter of Spencer, 1 Connoly, But by the Act of 1889 (c. 479) the 208; 21 St. Rep. 145. In that case, a Act of 1887 (including, of course, the niece for many years had lived with exemption clause) was made appli- the testatrix and had been supported cable " to all estates of deceased per- by her, in the apparent relation of sons where no assessment of the tax parent and adopted child, although the has been made to which such estate or parties were never addressed by each estates are liable." The efifect of this other as " mother " and " daughter," amendment was to exempt from tax- but it was apparent that the niece was ation legacies to adopted children in treated in all respects as if she had cases where testator died prior to the been an adopted child; the legacy was passage of the Act of 1887, but no as- held exempt from the tax. See Matter sessment of the tax has been made, of Sweetland, 47 St. Rep. 287; 20 N. and the order thereon entered, prior Y. Supp. 310; Matter of Birdsall, 22 to June 14, 1889. (Matter of Kemeys, Misc. 180; 49 N. Y. Supp. 450; Mat- 56 Hun, 117.) -Sge Matter of Thomas, ter of Capron, 30 St. Rep. 948; 10 N. 3 Misc. 388; 24 N. Y. Supp. 713. See Y. Supp. 23; Matter of Wheeler, 1 § 699o, ante. Misc. 450. *6 Matter of Butler, 58 Hun, 400; 48 Where the ten years' provision 12 N. Y. Supp. 201. A legacy to the had not been complied with, as the child of an adopted daxighter is not adopted child died at the age of 9 exempt. (Matter of Bird, 2 Connoly, years, after living with the testator 376 ; 32 St. Rep. 899 ; Matter of Moore, about seven, the legacy is not exempt. 90 Hun, 162; 35 N, Y. Supp. 782; (Matter of Gardner, N. Y. Law J., March 4, 1889.) 585 Admiitisteation of Estate, Etc. §§ 707, 708. § 707. Bishops and religious corporations. — "Any property here- tofore or hereafter devised or bequeathed to any person who is a bishop*® or to any religious corporation, including corporations organized exclusively for bible or tract purposes," is declared to be exempted from, and not subject to, the provisions of the act."** Religious corporations were included in the list of corporations declared to be exempt from the operation of the collateral inherit- ance tax, by a general statute, passed in 1890 ; but before that act, only the building used for public worship was exempt from public tax ; hence a legacy to a church organization was held not exempt from the legacy tax,"-' And so, a bequest of money to a church corporation toward the building of a new church, or the renovation of its present one, was held to be subject to the tax."^ § 708. Charitable, educational, and literary institutions The statute also exempts from taxation personal property, other than money or securities, bequeathed to a corporation or association organized exclusively for the moral or mental improvement of men or women or for charitable, benevolent, missionary, hospital, infirmary, educational, scientific, literary, library, patriotic, ceme- tery or historical purposes, or for the enforcement of laws relating to children or animals, or for two or more of such purposes, and used exclusively for carrying out one or more of such purposes. But no such corporation or association shall be entitled to such exemption if any ofiicer, member, or employee thereof shall receive or may be lawfully entitled to receive any pecuniary profit from the operations thereof, except reasonable compensation for ser- vices in effecting one or more of such purposes, or as proper bene- 49 Including an archbishop or cardi- passage. ( lb. ) In Matter of Murphy nal archbishop (Matter of Kelly, 29 (N. Y. Law J., June 22, 1893), it ap- Mise. 169), though residing without peared by the will, in connection with the State. (Matter of Palmer, 33 the proof furnished by the executors App. Div. 307; afifd., 158 N. Y. 669.) as to the understanding between the The Young Men's Christian Assoeia- executors and the testator, which was tion is not a religious corporation, the consideration influencing deceased (Matter of Watson, 171 N. Y. 256; to make the bequest in the absolute Matter of Fay, 37 Misc. 532.) form in which it appears, a valid 50 L. 1896, c. 908, § 221, as amended parol trust was created, enforceable L. 1901, c. 458. in equity in ia.voT ■ of the various 51 Matter of Kennedy, N. Y. Law religious corporations which were to J., April 25, 1890. share in the proportions specified. 62 Matter of Van Kleeck, 121 N. Y. Held, that these corporations were ex- 701; 31 St. Eep. 896. L. 1890, empt under the Act of 1892, citing c. 398, exempting legacies to religious Lynch v. Loretta, 4 Dem. 318; Wil- corporations from taxation, is pros- letts v. Willetts, 35 Hun, 405 ; Mat- pective in its operation, and does not ter of O'Hara, 95 N. Y. 413; Matter relieve from payment of a, tax which of Farley, 15 St. Eep. 727; Matter of became due and payable before its Havens, 17 id. 837. § 709. Administration of Estate, Etc. 586 ficiaries of its strictly charitable purposes ; or, if the organization thereof for any such avowed purpose be a guise or pretense for directly or indirectly making any other pecuniary profit for such corporation or association or for any of its members or employees, or if it be not in good faith organized or conducted exclusively for one or more of suc}i purposes. ^^ This exemption only applies to the property of domestic, not to that of foreign, corporations.^ The charter, or general statute, under which an exemption from taxation is claimed, must be a charter granted by, or a law in operation in, this State. It is no ground for exempting a foreign corporatiqn that it is exempt from taxation by the laws of the State of its origin. ^^ § 709. Property " exempt by law."— The Acts of 1885 and 1887 exempted from their operation " the societies, corporations and institutions now exempted by law from taxation;" the Act of 1896 lays the tax on all transfers " to persons or corporations not ex- empt by law from taxation on real or personal property " (§ 220). " Exempt by law " means exempt by some general statute appli- cable to specified classes of persons or corporations whose property is declared to be exempt from taxation, or by some special statute which exempts a particular person or corporation therein men- tioned. Such a general statute is the Tax Law of 1896°^ which B3L. 1896, e. 908, § 221, as amended of Wolfe, 23 Misc. 439; Matter of L. 1901, c. 458. The corporation need Prime, 136 N. Y. 347. It was further not actually be in existence at the held, in that case, that the provisions death of the testator. Thus, where of L. 1887, c. 376, enabling a desig- testator gave his residuary estate to nated foreign corporation to take and trustees for the purpose of founding, hold property in this State, did not erecting, and maintaining a home for entitle it to such exemption, the aged ; such estate to be held by the 55 Catlin v. Trinity College, 49 Hun, trustees until the termination of two 278; 22 Abb. N. C. 28; affd., 113 N. lives in being, when they were to exe- Y. 133. See Catlin v. St. Paul's M. E. cute the trust. Held, that such residu- Church, 17 St. Rep. 707; Matter of ary estate actually in the hands of McCoskey, id. 829 ; 6 Dem. 438 ; Mat- the trustees was, under L-. 1893, c. 701, ter of Tuigg, 15 N. Y. Supp. 548. regulating gifts for charitable pur- 58 L. 1896, c. 908, § 4, subd. 7, re- poses, to be considered as if in the pealing 1 R. S. 388, § 4; L. 1866, possession of a corporation already c. 136; L. 1883, e. 397; L. 1884, c. 537; formed under the will, or in the con- L. 1892, c. 713. The exemption in the trol of the Supreme Court, for the Act of 1887, of bequests to " the purpose of carrying out testator's societies, corporations, and institutions charitable scheme, and, therefore, ex- now exempted by law from taxation " empt at the time of testator's death, did not apply to bequests to municipal (Matter of Graves, 171 N. Y. 40.) corporations. (Matter of Hamilton, Compare Matter of Ohesebrough, 34 148 N. Y. 310.) But a bequest to a Misc. 365. city of a sum of money to be used for 54 Matter of Smith, 77 Hun, 134; the construction of a library building Matter of Taylor, 80 id. 589 ; Matter to be open to the public, is exempt of Balleis, 144 N. Y. 132; Matter of from the transfer tax. (Matter of Fayerweather, 62 St. Rep. 74; Matter Thrall, 157 N. Y. 46.) The pro- 587 Administeation op Estate, Etc. § 710. exempted certain property from taxation. Previous to 1900, that statute was applicable to cases of taxable transfers ;" but in that year an act was passed by which it was provided that the exemp- tions enumerated in the Tax Law should ndt apply.^^ That stat- ute, however, is not retroactive,^® so that transfers of property to those persons and corporations formerly exempt, and which vested prior to the Act of 1900, are not subject to the tax;^° and, per contra, transfers which took effect after the act are not exempt.®^ Another statute of general application exempts the cemetery lands and property of duly organized cemetery associations from public tax so long as the same shall be dedicated to the purposes of a cemetery.®^ § 710. Application of the statute — The exemptions granted to almshouses and the like, and to the personal property of incorpo- rated companies not liable to taxation upon capital, are those which have been most frequently claimed by corporations sought to be charged either with the collateral inheritance tax, under the Acts of 1885 and 1887, or with the transfer tax, under the Acts of 1892 and 1896. To entitle a corporation to immunity from the tax under either of these statutes, if exempt at all, it is not necessary that its own charter or act of incorporation should ex- pressly exempt it : it is enough if it belongs to the class of institu- tions declared exempt by the general statute.** It ought to be vision of the Revised Statutes exempt- etc., of New York, supra; Matter of ing buildings erected for the use of a Vanderbilt, 10 N. Y. Supp. 239.) college or other seminary of learning, 57 Matter of Kimberly, 27 App. Div. churches, schoolhouses, courthouses, 470; 50 N. Y. Supp. 586. jails, etc., was not applicable in the 58 L. 1900, c. 382. city of New York, "unless the same 59 Matter of Graves, 171 N. Y. 40; shall be exclusively used for such pur- Matter of Vanderbilt, 68 App. Div. 27 ; poses and exclusively the property of 74 N. Y. Supp. 450. a religious society." (L. 1882, c. 410, 60 Matter of Vanderbilt, sjtpra; Mat- § 827.) See Young Men's Christian ter of Graves, supra. Assn. V. Mayor, etc., of New York, 113 61 Matter of Huntington, 168 N. Y. N. Y. 189. As to schoolhouses, see 399; Matter of Howell, 34 Misc. 40; Church of St. Monica v. Mayor, etc., 69 N. Y. Supp. 505 ; Matter of Grouse, 119 id. 91. For institutions in New 34 Misc. 670; 70 N. Y. Supp. 731; York city exempt from taxation, see Matter of Watson, 171 N. Y. 256. L. 1882, c. 410, §§ 824, 827. As to «2 L. 1847, c. 133, § 10, as amended the exemption of real and personal L- 1877, c. 31. Hence a legacy to such property of public libraries under the <^ cemetery association was held ex- Revised Statutes, see Matter of Lenox, empt from the collateral inheritance 31 St. Rep. 959; 9 N. Y. Supp. 895; tax of 1887. (Matter of Dewey, N. Y. American Geographical Society v. Com- Law J., Oct. 21, 1889.) missioners, etc., 11 Hun, 505. Under es Matter of Miller, 5 Dem. 132; the original statute, churches and col- Matter of Hunter, 22 Abb. N. C. 24; leges were not included within the Matter of Kavanagh, 5 N. Y. Supp. term " incorporated companies." (Cat- 676; Matter of Curtiss, 1 Connoly, lin V. Trinity College, 113 N. Y. 133; 471; 7 N. Y. Supp. 207. See Colored Young Men's Christian Assn. v. Mayor, Orphans v. Mayor, etc., 104 N. Y. 581; 711. ADMINISTEATIOlSr OF EsTATE, EtC. 588 noted that the exemption clause of the Act of 1892 differed from that of the former acts in this, that by the latter act, a person or corporation claiming to be " exempt by law " must have been exempt from taxation " on both real and personal property." It was held, under the Act of 188Y, that it was not necessary that the corporation should enjoy complete immunity from taxation; hence, a corporation whose charter exempted it from taxation, on its personal property only, was exempt from the collateral inherit- ance tax,®* and this distinction is recognized in the present statute. § 711. The almshouse exemption — A great variety of institu- tions have claimed and been allowed exemption, as coming within the meaning of an almshouse, as that word was used in the origi- nal statute, — such as institutions for the blind, *^ homes for the aged and indigent,^® for consumptives,''^ and incurables,^* and hospitals,®^ orphan asylums, children's aid societies,™ etc. In Matter of Forrester, 35 St. Rep. 776; 12 N. Y. Supp. 774. Hence, a legacy to a society which conducts an institu- tion, which is exempt as being a, house of industry, is exempt from the inheritance tax, although there is no special exemption from taxation in its charter. (Matter of Herr, 55 Hun, 167; 7 N. Y. Supp. 852.) But a cor- poration which does not fall within any of the general clauses of exemp- tion specified in the general statutes, and which is not exempt by the act under which it was created, is liable to the collateral inheritance tax un- der the Act of 1885. (Matter of Board of Foreign Missions, 58 Hun, 116; 11 N. Y. Supp. 310.) As, by L. 1884, c. 65, the trustees of Colum- bia College were " authorized and em- powered to take by purchase, gift, grant, devise, or any other manner, and to hold any real estate which, when acquired, shall be used for, or the income thereof shall be applied to, the proper conduct and support of the several departments of education here- tofore established, or hereafter to be established, by such trustees," — Held, that a bequest to that institution was not subject to the tax. (Matter of Da Costa, N. Y. Law J., March 12, 1891.) 64 Matter of Vassar, 127 N. Y. 1; 37 St. Rep. 239. In Matter of For- rester (35 St. Rep. 776; 12 N. Y. Supp. 774), decided in 1890, an amend- ment to the charter of a church home, a pure charity, exempted it from tax- ation on its real estate. Held, that as this excluded the personal property from exemption, a bequest to it was not exempt from the collateral in- heritance tax under the Act of 1887. " If the case stood upon the Revised Statutes alone, there would be little difficulty in sustaining the appellant's position [of exemption]. But under its act of incorporation, the appellant is only exempted from taxation on its real estate. We think that this special statute, prescribing, as it did, a rule for this particular corporation, takes the case out of the operation of the general exemption contained in the Revised Statutes. * * * Consider- ing the existence of the general law, which was before the Legislature when the Act of 1887 was passed, the in- sertion, in the latter act, of the ex- emption of real estate, was idle unless intended as a special rule applicable in future to this corporation" (per Barrett, J. ) . See Excelsior Petroleum Co. V. Lacey, 63 N. Y. 426. 65 Matter of Underbill, 2 Connoly, 262; 20 N. Y. Supp. 134. 6« Matter of Lenox, 31 St. Rep. 959; 9 N. Y. Supp. 895; Matter of Keech, 32 St. Rep. 227; Matter of Vassar, 127 N. Y. 1. 67 Matter of Herr, 32 St. Rep. 724; 10 N. Y. Supp. 680. 68 Matter of Neale, 32 St. Rep. 910; 10 N. Y. Supp. 713. 69 Matter of Vassar, supra; Matter of Chittenden, N. Y. Law J., June 5, 1890 [de Brooklyn Eye and Ear Hos- pital]. TO Matter of Chittenden, supra [de 589 Administration of Estate, Etc. § 712. every case in whicli the exemption was granted to an institution of this character, it was placed, by the lower courts, on the distinct ground that the institution in question did not, under any circum- stances, exact or receive any fee or gratuity, from patients, inmates, or other recipients of its charity; and wherever the exemption was denied, it was on the, ground that the institution required pay for the benefits conferred. This question came before the Court of Appeals in the case of a home for aged and infirm men, which was founded, incorporated, and maintained by charity, and possessed no element of private or corporate gain, and whatever income it had was devoted exclusively to that charity. Its by-laws contained a provision requiring those becoming inmates, or some one in their behalf, to pay a designated sum upon their admission, and requiring them, if they had any property, to transfer the same by suitable methods to the home. It was held that, being char- tered for purely charitable purposes, and supported and main- tained by charitable contributions, the institution was none the less an almshouse, within the meaning of the statute, because of the foregoing provision of its by-laws.^^ The present statute con- forms to that view. § 712. " Beneficial interest " of legatee — A bequest in which the legatee has no beneficial interest, such as a bequest, in trust or otherwise, to pay testator's debts or funeral expenses, or to apply the income of a certain sum to the maintenance of a burial plot, is not taxable as being " to or for the use " of any one, within the meaning of the former statute ; nor, it is thought, is it " any interest " in the property transferred, within the meaning of the statute.^* A bequest of a specified sum. to the executor in trust. Children's Aid Soo. of Brooklyn and ing Matter of Keeoh, supra; Matter Orphan Asylum of Brooklyn] ; Matter of Lenox, supra; and Matter of Van- of Quin, N. Y. Law J., July 24, 1889. derbilt, 10 N. Y. Supp. 239. See Peo- A " mutual benefit association," whose pie v. Purdy, 58 Hun, 386 ; 34 St. Rep. constitution provided for the admis- 893; aflfd., 126 N. Y. 679. sion of members under a certain age, 72 Hence, a bequest of the income of what assessments should be paid to a certain sum to be applied to the entitle to membership, and for what maintenance of a burial plot is ex- cause membership should be forfeited, empt. (Estate of Vinot, 7 N. Y. Supp. the object of the association being to 517; 26 St. Kep. 610.) But where, by give aid to the sick and disabled, and the terms of the will, the executor provisions for the families of the de- takes one-third of the estate abso- ceased members, is not one of the lutely, he is not relieved from the in- soeieties or institutions contemplated heritance tax by the fact that, in an by the statute. (Matter of Jones, 1 action to construe the will, he is held Connoly, 125; 22 Abb. N. C. 50.) See to take his legacy impressed with a Matter of Hunter, 11 St. Rep. 704; trust in favor of another, as a result s. c, suh nom. Church Charity v. Peo- of extrinsic evidence therein intro- ple, 6 Dem. 154. duoed. (Matter of Edson, 38 App. 71 Matter of Vassar, supra; overrul- Div. 19; affd., 159 N. Y, 568.) § 713. Admii^isteation of Estate, Etc. 590 " to expend the same for masses for the repose of the soul " of testator, naming the person who was desired should celebrate the masses, being a valid legacy, and being given in a clause of the will separate from that in which the funeral expenses were pro- vided for, was held to be subject to the tax.''^ It has been held under the former statute that a legacy to a creditor of so much as he may prove due him is not subject to the tax; for although in form a legacy, it is nothing more than a direction to pay just debts,'* and that a legacy for services either already performed,'^ or to be performed, after testator's death, confers no beneficial interest and is not taxable. But under the present statute, at least, such a bequest which is accepted by the legatee is subject to the tax.'® If the beneficiary desires to escape payment of the penalty, he must establish his debt and let the legacy fall into the residuary estate." The proceeds of a policy of insurance on the life of a decedent, made payable to him or to his personal repre- sentatives, are subject to the tax.'^ But it may well be doubted if the proceeds of a policy, collected by the beneficiary therein named, are subject to the tax, as being any part of the estate of the person whose life was insured.'^ §713. Bequests to executors, etc In harmony with the fore- going principle, the statute exempts a devise and bequest to an executor or trustee in lieu of, or to an amount not exceeding, his commissions ; otherwise, to the extent that such a bequest exceeds the amount of the statutory commissions ; i. e., " the excess in value of the property so bequeathed or devised, above the amount of 73 Matter of Black, 1 Counoly, 477 ; our opinion, should not be extended to 24 St. Rep. 341. a general direction to pay debts, T4 Matter of. Rogers, 30 St. Rep. though out of a specific fund. 943; 10 N. Y. Supp. 22; Matter of 77 Matter of Doty, 7 Misc. 193; 27 Underbill, 2 Connoly, 262. N. Y. Supp. 653. 76 Matter of Reilly, N. Y. Surr. Ct. 78 Matter of Knoedler, 68 Hun, 150; Deeis. 1890, p. 416; Matter of Rich- aflfd., 140 N. Y. 377. ardson, N. Y. Law J., March 9, 1893. 79 See § 536, ante. The fact that the See Matter of Hulse, 39 St. Rep. 402; will mentions moneys as deposited in Matter of Meyer, N. Y. Law J., March trust for certain beneficiaries, does not 26, 1891. make them part of the estate to be 76 Matter of Gould, 156 N. Y. 423. administered. (Matter of Walker, 45 It matters not what the motive of a St. Rep. 21; 17 N. Y. Supp. 666.) transfer by will may be, whether to The amount received from the gratuity pay a debt, discharge some moral ob- fund of the produce exchange is not ligation, or to benefit a relative for assets of the estate, since it belongs to whom the testator entertains a strong the beneficiaries specified in the by- affection, if the devise or bequest be laws of the exchange, and is properly accepted by the beneficiary, the trans- excluded by the appraisers. (Matter fer is made by will and the statute of.Fay, 25 Misc. 468; 55 N. Y. Supp. imposes a tax. (lb.) That case 749.) should be applied cautiously, and, in 591 Administration of Estate, Etc. § 714. connnissions or allowances prescribed by law in similar cases," is taxable, under the statute.®* Where a bequest is made to persons named as executors, but the will directs that they shall receive no compensation, the statutory exemption does not apply.®^ The amount of the executor's " commissions or allowances," being fixed by law, there is no occasion for the surrogate to fix them, or to determine any " reasonable compensation " to be made to the ex- ecutor, as he was required to do under the former act.®^ § 714. Representative anfl beneficiaries personally liable for tax. — So far as the act imposes a tax in personam, it was, under the former statutes, imposed, on the executor, administrator, or trustee, and not on the heir, legatee, or cestui que trust. But, under the Transfer Tax Act, the tax is declared to be a lien upon the prop- erty transferred, until paid,®^ and the person to whom the property is transferred and the executor, administrator, or trustee of the estate are personally liable for it until its payment.®* The repre- sentative is not " entitled to a final accounting of an estate in settlement of which a tax is due under the provisions of this act unless he shall produce a receipt so sealed and countersigned [by the comptroller], or a certified copy thereof, or unless a bond," in a case of preferred payment (§ 222). It is obviously the in- terest of the representative to have the extent of his personal liability determined by the surrogate at the earliest date possible, and to this end he may, in case of doubt, apply at any time after grant of his letters for the appointment of an appraiser. The surrogate has no jurisdiction to entertain another and different proceeding instituted by the representative for the determination of the question whether the estate or any interest in it is subject 80 L. 1896, e. 908, § 227; Matter of (2 Connoly, 262; 20 N. Y. Supp. 134), Gihon, 169 N. Y. 443. it was held, that a bequest to an exec- 81 Matter of Vanderbilt, 68 App. utor of a certain sum " over and above Div. 27 ; 74 N. Y. Supp. 450. his legal commissions and expenses," 82 By L. 1887, c. 713, § 3, it was was not within the purview of this provided that any bequest or de- provision of the Act of 1887. See vise, over and above what would be Matter of Sidell (N. Y. Law J., March a reasonable compensation, left to an 10, 1893), where the entire residuary executor in lieu of his commissions or estate was given " as extra compensa- allowances, was taxable, and such tion in addition to commissions, and reasonable compensation was to be de- in satisfaction of services rendered termined by the surrogate. As it during my lifetime." would be impossible to determine the 83 See Kitching v. Shear, 26 Misc. reasonable compensation, until the 436. services had been rendered, the sur- 8* The executor is not excused from rogate, in Matter of Havens (N. Y. payment of the tax because the whole Law J., Aug. 1, 1890), postponed con- estate has been distributed. (Matter sidering the question until an account- of Hackett, 14 Misc. 282.) ing was had. In Matter of Underbill § 715. Administration of Estate, Etc. 592 to the operation of the statute.*^ The application may be made with the sole view of procuring an adjudication as to the liability of the estate or any part of it to taxation under the statute, upon a petition setting forth the facts on which a claim to exemption or otherwise is based. The court will, if thought necessary or desirable, appoint an appraiser to notify the persons interested, and to take such further or additional evidence as may be offered and report to the court.*" It is usual for the court to require notice of such an application by the representative to be given to the county treasurer or comptroller, though the giving of such notice is not essential to the right of the court to pass upon the questions presented.*^ A report of an appraiser, finding that cer- tain legacies are the only ones taxable, and confirmed by the sur- rogate, will protect the executor from a claim for the amount of the taxes upon other legacies not included in the assessment.** As the surrogate is at once invested with the office and functions of an assessor for the State, with authority to determine the ques- tion whether the property of the decedent was subject to taxation under the act, his determination thereon is final and conclusive in any subsequent proceedings,** except upon an application for a reappraisal, hereafter referred to. § 715. Collection of tax by representative. — The representative or trustee is furnished with the means of collecting the tax out of the property, and thus escaping personal liability. He is de- 85 Matter of Parley, 15 St. Rep. 727. by the act; nor is it necessary that 86 Matter of Cohn; N. Y. Law J., the treasurer or comptroller should April 13, 1893. have notice. Where, therefore, in pro- 87 Matter of Wolfe, 137 N. Y. 205. ceedings instituted by the district at- " Where it is sought to procure an ad- torney it appeared that, upon applica- judieation that property passing by tion of the executors, appraisers had the will of a decedent is not liable to been appointed by the surrogate, and the transfer tax, a proceeding must be upon the coming in and confirmation instituted by petition and the persons of their report, the surrogate made a interested must be made parties. So decree adjudging that certain legacies far as the application relates to the were exempt from taxation under the return of the fund deposited upon the act, — Held, that, as to said legacies, purchase of the property, the surro- the former adjudication was a bar. gate is without jurisdiction." (Mat- See Matter of Smith, 23 N. Y. Supp. ter of Aherns, N. Y. Law J., Nov. 29, 762; Matter of Schermerhorn, 38 App. 1892.) Div. 350; Matter of Seaver, 63 id. 88 Matter of Vanderbilt, 10 N. Y. 283. As to the surrogate's power to Supp. 239. modify or vacate an order fixing the 89 Matter of Wolfe, 137 N. Y. 205. tax, see Matter of Fulton, 30 Misc. Held, also, in that case, that in order 70; 62 N. Y. Supp. 995; Morgan v. to give the surrogate jurisdiction, it Cowie, 49 App. Div. 612; 63 N. Y. is not essential that the proceedings Supp. 608 ; Matter of Earle, 71 id. should be initiated by the district at- 1038. Compare Matter of Morgan, 36 torney, at the instance of the treasu- Misc. 753 ; Matter of Crerar, 56 App. rer or comptroller for the enforcement Div. 479; Matter of Von Post, 35 and collection of the tax as authorized Misc. 367. 593 Abministratiojst of Estate, Etc. § 716. clared to " Lave full power to sell so nmch of the property of tlie decedent as will enable him to pay such tax, in the same manner as he might be entitled by law to do for the payment " of decedent's debts. Where he has in charge, or in trust, any taxable legacy or property for distribution, he " shall deduct the tax therefrom," and pay it over to the county treasurer or comptroller within thirty days. If the legacy or property is not in money, he is required to collect the tax upon the appraised value thereof from the legatee or distributee; and he shall withhold delivery of any specific taxable legacy or property, until he has collected the tax thereon. In the case of a legacy chargeable on, or payable out of, real property, the tax remains a lien on the property, and is payable by the heir or devisee to the representative or trustee ; failing to do which, the representative or trustee may enforce it by the sale of the property, or the district attorney may take the proceeding for its collection, hereafter mentioned. Where a money legacy is given for a limited period, the representative shall retain the tax upon the whole amount, but where the legacy is not in money, he must apply to the surrogate for an apportionment, if the case require it, of the sum to be paid into his hands by the legatees (§ 224). Provision is also made by the statute for a composition of the tax, between the representative and the county treasurer or comptroller, in certain cases where the tax upon an expectant estate is not presently payable, or where successive beneficiaries are not liable at the same rate, or some of them exempt. But where successive trust estates are taxable at the same rate, the representa- tive may pay the whole tax out of the principal of the fund.®" § 716. Collection of tax by district attorney. — On the refusal or neglect of the persons liable for the tax to pay the same, it is made the duty of the county treasurer or comptroller to give the district attorney written notice thereof; and if the latter have probable cause to believe the tax is due and unpaid, he shall apply to the court for a citation to show cause why the tax should not be paid.®-' The citation is addressed to the persons liable to pay the tax, and must be made returnable not more than three months 90 L. 1896, e. 908, § 230, as amended months after the decedent's death. L. 1897, c. 284. (Matter of Astor, 6 Dem. 402; Frazer 91 The former statute was silent as v. People, id. 174.) The Statute of to the time when the application was Limitations is not available as a de- to be made; and the surrogate of New fense in proceedings to collect the tax. York county decided that he would not (Matter of Crerar, 31 Misc. 481; 65 proceed on hi® own motion to assess N. Y. Supp. 573.) the tax until the expiration of eighteen 38 §§ 717, 718. Administration of Estate, Etc. 594 after its date. The service of the citation, the time, maniier and proof thereof, and the hearing and determination thereon, and the enforcement of the determination or order made must con- form to the course of procedure prescribed by the Code for Sur- rogates' Courts ; where a controversy arises or may arise as to the relationship of the beneficiaries to the decedent, the comptroller may, with the approval of the attorney-general, and a justice of the Supreme Court of the judicial district in which the dece- dent resided, compromise and settle the amoimt of any tax. (§ 235.) § 717. Duty of certain corporations as to tax. — On the transfer, by a foreign executor, administrator, or trustee, of any stock or obligations in this State standing in the name of a decedent, or in trust for a decedent, liable to any such tax, the tax shall be paid to the treasurer or the comptroller. " l^o safe-deposit company, trust company, corporation, bank, or other institution, person or persons having in possession or under control securities, deposits or other assets of a decedent," including stock of, or interest in such companies, " shall deliver or transfer the same to the executors, administrators, or legal representatives of said decedent, or upon their order or request, unless notice of the time and place of such intended transfer be served upon the State comptroller at least ten days prior to the said transfer." Wor shall any such corpora- tion or person deliver or transfer any securities, deposits, or other assets of the estate of a nonresident decedent, without retaining a sufiicient portion or amount thereof to pay any tax which may thereafter be assessed thereon, unless the comptroller consents thereto in writing. The treasurer or comptroller, personally or by representative, may examine said securities or assets at the time of such delivery or transfer. " Failure to serve such notice or to allow such examination, or to retain a sufficient portion or amount to pay such tax as herein provided, shall render said safe-deposit company, trust company, corporation, bank, or other institution, person or persons liable to the payment of three times the amount of the tax and penalty due upon said securities, deposits, or other assets." "^^ § 718. Proceedings to assess the tax. — The surrogate who has jurisdiction to grant letters on the estate of the decedent, or to appoint a trustee of such estate, is invested with the office and function of an assessor of the State, tipon whom is conferred 92 L. 1896, c. 908, § 228, as amended L. 1901, c. 173. 595 Administkatiow of Estate, Etc. § 718. '■' jurisdiction to hear and determine all questions arising under the provisions of this article, and to do any act in relation thereto authorized by law to be done " by him in other matters or proceedings of which he has jurisdiction."^ As in other proceed- ings, in case two or more Surrogates' Courts have concurrent jurisdiction, the one first acquiring it may retain it to the exclu- sion of all others (§ 229)."* He has power to decide every question that may arise in a proceeding under the act, which may be neces- sary to fully discharge the duties imposed upon him. He may, therefore, decide the question whether any of decedent's property passed under the will, or under the laws of intestacy, and may determine the validity, or otherwise, of testamentary dispositions, and if void, may declare the succession, under the Statutes of De- scent and of Distribution.®^ In the matter of the appraisal of the property, to the end that the tax may be assessed, the surrogate's jurisdiction may be in- voked by any interested party, including the State comptroller, or upon his own motion,"® and he may " determine the cash value of all such estates and the amount of tax to which the same are liable, without appointing an appraiser " (§ 232).®^ In the case of non- residents' estates, upon which either ancillary letters testamentary 93 The provisions of the Taxable or devisees, but to the heirs and next Transfer Act prescribing what prop- of kin; and that a decree assessing erty is subject to taxation and au- the heirs for that portion of the es- thorizing the Surrogate's Court, which tate which passed to them was valid-, has jurisdiction to grant letters upon To the same effect, Matter of Peters, the estate, to hear all proceedings un- 69 App. Div. 465; 74 N. Y. Supp. der the provisions of the act, and 1028. those of the Code prescribing the right 88 X,. 1896, o. 908, § 230, as amended to grant letters, should have the same by L. 1902, e. 496. See Matter of construction, and where it appears O'Donohue, 44 App. Div. 186; 60 N. that shares, of a nonresident testator, Y. Supp. 690. in a corporation of this State are 9T Under the former statutes, which taxable under the act, because situ- contained no such provision, it was ated here, such shares will also be held, nevertheless, that no formal ap- deemed property which would author- praisal was necessary where the legacy ize the Surrogate's Court of the county or distributive share was a fixed, where the principal office is located, known sum, on which the amount of to issue letters and such court, there- tax payable was readily calculated, fore, has jurisdiction of proceedings (Matter of Astor, 6 Dem. 402.) See to assess the tax. (Matter of Fitch, Matter of Jones, 19 Abb. N. C. 221. 160 N. Y. 87.) But where a surrogate has appointed 9* Matter of Hathaway, 27 Misc. an appraiser and made application to 474; 59 N. Y. Supp. 166. the superintendent of the insurance 95 Matter of Ullman, 137 N. Y. 404. department to determine the value of In that case, decedent's will attempted a vested remainder, the determination to create trusts for the disposition of of the latter is binding upon him and his residuary estate, which unduly he cann6t thereafter, without revers- suspended the power of alienation, ing the entire proceeding, make an ap- Held, that the surrogate had juris- praisal himself. (Matter of Davis, 91 diction to determine that the residu- Hun, 53; afld., 149 N. Y. 539.) ary estate did not pass to the legatees §§ 719, 720. Administbation op Estate, Etc. 596 or ancillary letters of administration are applied for, the surro- gate is required to determine the amount of the tax which may be or become due, and in his decree awarding such ancillary letters, he may make provision for the payment or securing the tax. To this end, every petition for ancillary letters must set forth the name of the county treasurer or comptroller, and also " a true and correct statement of all the decedent's property in this State, and the value thereof ;" on which a citation must issue to the treasurer or comp- troller, and upon its return the amount of the tax will be deter- mined as above (§ 229). § 719. Appointment of appraiser — Formerly the surrogate was not restricted in the selection of an appraiser; all that was re- quired was that his appointee should be " a suitable person " to ascertain the value of the estate. In 1900,®^ however, the nomina- tion of appraisers was vested in the State comptroller with re- spect to certain specified counties of the State, and in other coun- ties the duties of appraiser were imposed upon the county treas- urer. Since that time the surrogate has had no power to appoint an appraiser, but should direct one of the official appraisers, or the county treasurer, as the ease may be, to proceed with the ap- praisal.^® Under the former statute the appointment could be made at any time when the surrogate was able to determine the amount of the estate, without waiting for the ascertainment of ■debts,^ and doubtless that proposition is still true. § 720. Proceedings by appralsfer — On notice first given by mail to all persons known to have a claim or interest in the property to be appraised, including the State comptroller, and such other persons as the surrogate may by order direct, of the time and place when he will appraise the property,^ the appraiser will " fix the fair market value, at the time of the transfer," i. e., at the time of decedent's death, except as mentioned below. He is author- ized to issue subpoenas to witnesses, compel their attendance, and 98 L. 1900, e. 658. quired by law, of the time and place 99 Matter of Sonheim, 32 Misc. 296. -when the appraisal would be made, 1 Matter of Westurn, 152 N". Y. 93. and that upon the coming in of the 2 In Matter of Miller (110 N. Y. appraiser's report, the order in ques- 216), which was a proceeding to va- tion was made. Held, that in the ab- eate the order of the surrogate, af- sence of any allegation or proof to the firming the appraisement of the estate, contrary, it was to ie presumed that, and assessing the amount of the tax, immediately after making the order, it was objected that it was made the surrogate gave the notice pre- without notice to the legatee. It ap- scribed by the act, and that no prior peared that the appraisers were duly notice was required. appointed, and gave notice, as re- 597 Administeation of Estate, Etc. § 720. take their testimony under oath concerning the property and its value,® and is required to report the same and the value of the property to the surrogate, and also such other pertinent facts as the surrogate, by order, may require (§ 231).'* The appraiser is re- quired " to fix the fair market value of property of persons whose estates shall be subject to the payment of the tax (§ 230). The lien of the tax, vphich attaches at the time of decedent's death, is subject to the superior lien of the decedent's debts, and also to the charges for administrative expenses. In fixing " the fair market value " of land which is subject to the lien of decedent's mort- gage debt, it would seem reasonable to appraise the value of the equity of redemption only, and this whether the succession is by devise or by descent.^ But, however that may be, it is clear that mortgage debts are not to be deducted in fixing the value of the personalty, even though directed to be paid by the executor.^ If the land is not worth more than the debt, there is no basis for fix- ing any value to it. The fact that, under the statute, the heir or devisee, and not the general estate, is charged with the burden of the mortgage, does not alter the principle that the value of the property over and above the incumbrance is the only basis for as- sessing the tax.'' Provision is made for the case of debts proved against the estate, after the payment of any legacy or distribu- tive share from which the tax has been deducted, or upon which the legatee or distributee has paid the tax, and has been called on to contribute to the payment of the debts. In such 3 The surrogate may issue a com- his death was a house and lot in New mission to take testimony of nonresi- Jersey, which, of course, was not tax- dent witnesses, for use on the ap- able. This house was worth $9,000, praisal (Matter of Wallace, 71 App. and was subject to a mortgage of Div. 284), and the appraiser may $7,000. The decedent was entitled to hear evidence as to such debts as eould a one-half interest therein. The exee- be enforced against the estate. (Mat- utors claimed that, being responsible ter of Wormser, 36 Misc. 434; 73 N. for the amount of the mortgage as a Y. Supp. 748.) debt of the testator, there should be a •4 Witnesses' fee« are to be paid by deduction from the amount of the es- the treasurer or comptroller; likewise tate by one-half of this debt, and the appraiser's compensation (unless that there was no provision of stat- his salary is fixed) , and his actual ute in New Jersey similar to that in and necessary traveling expenses. this State which charges the heir or 5 See Matter of Kene, 8 Misc. 102. devisee with the burden of the mort- 8 Matter of Livingston, 1 App. Div. gage. The appraiser refused to make 568; Matter of Opperman, 25 App. the deduction. The surrogate eon- Div. 94; 48 N. Y. Supp. 993; Matter firmed the report, apparently on the of Sutton, 3 App. Div. 208 ; aflfd., 149 ground that there was no proof of the N. Y. 618; Matter of De Graaf, 24 law of New Jersey, and even if the Misc. 147 ; Matter of Berry, 23 id. 230. law was as claimed, he would require 7 In Matter of Colhoun (N. Y. Law proof that the property would not be J., May 24, 1892), the only property sufficient to pay the mortgage debt, owned by the testator at the time of § 720. Administbation of Estate, Etc. 598 case, an equitable proportion of the tax must be repaid him.* If the property has no salable value, nor any actual or poten- tial annual value at the time of the transfer, it would seem, to be incapable of being appraised.® Another principle of ap- praisement is, that the act only applies to the property of v^hich the decedent died seized and possessed, and not to the interest or increase between that time and the accounting of the execu- tors.^" In appraising legacies for taxation, the appraiser should report their value, irrespective of any direction in the will as to payment of the tax ; and the fact that the will charges the pay- ment of all the taxes upon the residuary estate does not authorize the deduction of that amount in appraising the residuary legacy. ^^ But in general it may be said that deductions should be made for debts,-*^ commissions of the executors ^^ and the probable expenses of administration, but not for the amount of the Eederal inherit- ance tax.-** The deductions should be made from the whole es- tate, including exempt property, so that every species of property shall bear its just burden. ^^ It was held, under the former statute, not to be the duty of the appraiser to appraise the whole estate of the decedent, but only the estates of those persons whose estates are inherited, or are created by will, and which are subject to the tax.-'® 8 See § 732, post. fied, and some of such persons are ex- 9 Thus a worthless account ( Matter empt from legacy tax, it is error to of Manning, 169 N. Y. 449), or notes assess the tax upon the whole gift, which the maker testifies have been but it should be limited to the bene- paid (Matter of Westurn, 152 N. Y. ficial interests which are not exempt. 93), should not be included. But a (s. c. below, 2 Connoly, 644.) Taxes judgment against a legatee or next of assessed against the deceased in his kin should be appraised, as payment lifetime, though not levied until after may be enforced by deduction from his his death, when they were paid by legacy or distributive share. (Mat- the executor, should be deducted, ter of Smith, 14 Misc. 169.) Notes (Matter of Brundage, 31 App. Div. directed to be canceled should be ap- 348; 52 N. Y. Supp. 362.) praised at their actual, not face, 12 Matter of Westurn, 152 N. Y. 93 ; value. (Morgan v. Warner, 45 App. Matter of Millward, 6 Misc. 425. See Div. 424; affd., 162 N. Y. 612.) As Matter of Gould, 156 N. Y. 423. Com- to the method of valuing marketable pare Matter of Ludlow, 4 Misc. 594. and industrial stocks, see Matter of 13 Matter of Westurn, 152 N. Y. 93 ; Crary, 31 Misc. 72; Matter of Smith, Matter of Gihon, 169 id. 443 (com- 71 App. Div. 602. The value of the missions of temporary administra- good-will of a joint-stock association, tor) ; Matter of Millward, supra. in which decedent was interested, l* Matter of Gihon, supra; Matter should be included. (Matter of Jones, of Curtis, 31 Misc. 83; 64 N. Y. Supp. 69 App. Div. 237.) 574. 10 Matter of Vassar, 127 N. Y. 1 ; 15 Matter of Purdy, 24 Misc. 301. 37 St. Rep. 239. See Matter of 16 Matter of Robertson, 5 Dem. 92. Sloane, 154 N. Y. 109. But the appraiser should report all 11 Matter of Swift, 137 N. Y. 77. property as to which he is in doubt. Where the will leaves to the executor, as subject to the tax. (Matter of certain articles to be specified in a Hendricks, 1 Connoly, 301 ; 18 St. subsequent memorandum, in trust for Rep. 989.) See Matter of Swift, such persons as shall be therein speci- supra. 599 Administeation of Estate, Etc. § 721. But it is quite clear that in the case, for example, of an intestate succession, it may be necessary to appraise the whole estate, in order to determine whether the value of the several distributive shares will exceed the amount on which the tax is limited to one per cent. The appraiser must necessarily examine the will, and it is his duty to call the court's attention to any facts that appear to him as constituting sufficient reasons for reporting the legacies subject to the tax. Where other interests accrue, after his ap- pointment, but before his report is filed, he has power to appraise and report such interests. -^^ In .case any property is discovered to have been omitted by mistake, fraud, or concealment, from the first appraisal, the court may send it back to him for correction.-'^ § 721. Valuing estates which are subject to defeat. — The statute contains a provision under which, whenever an estate for life or years can be divested by the act or omission of the legatee or devisee, it shall be taxed, as if there were no possibility of such limitation.-'® In estimating the value of any present estate, no allowance shall be made for any contingent incumbrance thereon, or for any contingency, upon the happening of which the estate or in- terest therein might be abridged, defeated, or diminished ; provided, that in the event of such incumbrance taking effect as an actual burden upon the interest of the beneficiary, or in the event of the abridgment, defeat, or diminution thereof, a return shall be made to the person entitled thereto, of a proportionate amount of such tax in respect of the amount or value of the incumbrance when taking effect, etc.^" It is also provided, by the same amendment, that where a transfer of property is made subject to a life estate, the increase of benefit accruing to the remainderman upon the termination of the precedent estate, shall be deemed a transfer of property under the act, as though such increase had been acquired 17 Matter of Ste-wart, 30 St. Rep. interests, and in reporting the interest 738. passing to Susan A. Heaton the ap- 18 Matter of MePherson, 104 N. Y. praiser acted properly. Should the 306; Matter of Lansing, 31 Misc. 148; events happen upon -which her estate 64 N. Y. Supp. 1125; Matter of Kelly, or interest was limited, before the ex- 29 Misc. 169. haustion of the trust funds, relief may 19 But this does not apply to estates be accorded to her as provided in the which had terminated before the act act. The appraiser was also right in took effect, nor to a remainder which reporting for taxation so much of the is subject to a life estate, which may residuary estate as was ascertainable be so terminated. (Matter of Sloane, at the time of the appraisement. 154 N. Y. 109.) See Matter of Plum, Should that fund be temporarily in- 37 Misc. 466; 75 N. Y. Supp. 940. creased by the receipt of additional 20 In Matter of Stanford (N. Y. Law assets, or by other defeasible interests J., May 6, 1893), the surrogate said: falling into and becoming a part of " It has been the rule of decision here- the same, another appraisement may ■tofore, to tax vested though defeasible be had." § 722. Admiitistration of Estate, Etc. 60O from the person from whom the interest is derived (§ 230). Where property is transferred in trust, or otherwise, and the in- terests of the transferees are dependent upon contingencies whereby they may be defeated, extended, or abridged, a tax shall be imposed " at the highest rate which, on the happening of any of the said contingencies or conditions, would be possible under the provisions of this article." Such tax shall be due and payable forthwith out of the property transferred; provided that, on the happening of any contingency whereby the property is transferred to persons either exempt or taxable at a less, rate, such persons shall be en- titled to a rebate specified in the statute.^' § 722. Valuing future and contingent estates The difficulty of valuing a contingent interest before the contingency happens, and the impossibility of determining before that time (in many cases) the person to whom the eventual estate would pass, led to a doubt, under the former statute, whether the Legislature intended to tax such contingent interests at all, at least before the happening of the contingency.^^ The present law provides, however, that, " whenever a transfer of property is made, upon which there is, or in any contingency there may be, a tax imposed, such property shall be appraised at its clear market value immediately after such transfer, or as soon thereafter as practicable." It is expressly provided, however, that contingent or defeasible expectant estates, of which the value has not been fixed, shall be appraised " when the persons entitled thereto shall come into the beneficial enjoy- ment or possession thereof," without reference to the valuation, theretofore made, of the particular estate. ^^ The value of every future or limited estate, income, interest, or annuity, dependent 21 L. 1896, 0. 908, § 230, as amended life tenant, the tax does not accrue L. 1899, u. 76. Under this statute the until that event. (Matter of Davis, tax on a contingent remainder ia not 149 N. Y. 539; Matter of Roosevelt, payable until the estate vests in pos- 143 id. 120; Matter of Curtis, 142 id. session, as otherwise the eflfect would 219; Matter of Hoffman, 143 id. 327; be to tax the property and not the Matter of Howell, 34 Misc. 432; Mat- succession. (Matter of Vanderbilt, 68 ter of Eldridge, 29 id. 734; Matter of App. Div. 27; 74 N. Y. Supp. 450.) Irwin, 36 id. 277.) See Matter of The Act of 1899, in its original form, Sloane, 154 N. Y. 109. In that case attempted to tax remainders which the remainder could not be determined had vested prior to June 30, 1885, until the death or remarriage of the and, in this respect, was unconstitu- life tenant. The provisions of the act tional. (Matter of Pell, 171 N. Y. 48.) do not apply to a case where the 22 See Matter of Wheeler, 1 Misc. transfer was made prior to the passage 450; 22 N. Y. Supp. 1075. of the act, though the contingency 23 See Matter of Plum, 37 Misc. upon which the estate actually vested 466; 75 N. Y. Supp. 940. Where the in possession took place after the act person entitled to the remainder can- took effect. ( Tallmadge v. Seaman, & not be known until the death of the Misc. 303; 30 N. Y. Supp. 304.) 601 Administration of Estate, Etc. § Y22. upon any life or lives in being, shall be determined by the rule, method, and standard of mortality and value employed by the superintendent of insurance in ascertaining the value of policies of life insurance and annuities, for the determination of liabilities of life insurance companies ; except that the rate of interest for making such computation shall be five per centum per annum.^* The statute further provides that " the superintendent of insurance shall, on the application of any surrogate, determine the value of ^ny such future or contingent estate, income or interest therein, limited, contingent, dependent or determinable upon the life or lives of persons in being, upon the facts contained in any such appraiser's report, and certify the same to the surrogate, and his certificate shall be conclusive evidence that the method of compu- tation adopted therein is correct " (§ 232).^^ This clearly brings contingent remainders within the operation of the law, and supersedes some rulings to the effect that the former statute applied only to vested, and not to contingent, remainders.^® But where, under the will, the whole estate may be absorbed by the life tenant, or first taker f or where the ultimate estate is de- pendent upon the contingency of the exercise, by the first taker, of a right to dispose of the property by will, there would seem to be no basis for the imposition of the tax, it being a question whether any property at all will pass.^* 24 L. 1896, c. 908, § 230, as amended promise should be conclusive against L. 1902, c. 496. "All estates upon re- the cestui que trust without the lat- mainder or reversion, which vested ter's consent. prior to May 1, 1892, but which will 25 Under the Act of 1885, the sur- not come into actual possession or en- rogate was governed by the North- joyment of the person or corporation ampton table of mortality, under the beneficially interested therein, until general rules of practice. (Matter of after the passage of this act, shall be Robertson, 5 Dem. 92.) appraised and taxed as soon as the 26 See Matter of Lefever, 5 Dem. person or corporation, beneficially in- 184; Matter of Clark, 1 Connoly, 431; terested therein, shall be entitled to the 22 St. Rep. 354 ; Matter of Hopkins, actual possession or enjoyment there- 6 Dem. 1. The collateral inheritance of." (lb.) By an amendment made in tax imposed by L. 1885, c. 483, was 1901 (c. 173), adding a new section upon every interest, immediate or to the act (§ 130a), power was given future, derived under a testator or in- to the county treasurer of any county testate, not embraced in the clause of in which the office of appraiser is not exemption in the act. (Matter of salaried, with the written consent of Stewart, 131 N. Y. 274; 43 St. Rep. the State comptroller, and in other 171.) counties, the State comptroller, with 27 Matter of Babcock, 37 Misc. 445 ; the written consent of the attorney- 75 N. Y. Supp. 926. See Estate of general, to compromise with the trus- Fleming, N. Y. Law J., Oct. 15, tees of any estate, the amount of the 1889; Matter of Wallace, 18 St. Rep. tax upon any expectant estate, which, 387 ; Matter of Mathews, N. Y. Law under the Collateral Inheritance, or J., July 27, 1889. Transfer Tax, Act, were not then as- 28 Matter of Cager, 111 N. Y. 343 ; certainable, and to grant discharges 19 St. Rep. 497; Matter of Field, 36 thereof; provided, that no such com- Misc. 279. § 723. Administeation of Estate, Etc. 602 In the case of a vested remainder, no difficulty arises. Thus, in the case of a bequest to the wife for life, with remainder ab- solutely to a son and his heirs, etc., the remainder vested on the death of the testator, and passed to the son's heirs on his death before the life tenant. It is, therefore, subject to the tax,^^ at the value of the whole, less the life estate.^" In the case of a devise, to a brother and his wife, of an estate for life as tenants in the en- tirety in certain real property, the beneficiary being known, the property definite, and the event certain to occur, the wife has an interest which is capable of assignment, and of which the present value can be fixed, and, therefore, the wife's interest is subject to the tax.^' So, too, remainders absolutely vested in the decedent at the time of death, one under a will and the other under a power of appointment, are both presently assessable against the legatee of such decedent. ^^ Where a tax is assessed on a life estate, and also on the re- mainder, the former is to be taken out of the income, and the lat- ter is to be deducted from the principal. The fact that the latter will thus be reduced is no objection, since such reduction is law- fully made.®^ § 723. Transfers under power of appointment The statutory provisions relating to this subject have already been referred to,^* but a few observations in connection with the appraisal of such transfers may not be out of place. It has been held, that where a power of appointment, given by a will which took effect prior to 29 Matter of Van Rensselaer, N. Y. 6 id. 1. In Matter of Coekey (N. Y. Law J., May 25, 1889; Matter of Law J., March 21, 1893), the surro- Vinot, 7 N. Y. Supp. 517; 26 St. Rep. gate of New York county said, in ref- 610. See Matter of Johnson, 6 Dem. erenee to Matter of Johnson (supra), 146; Matter of Runcie, 36 Misc. 607; holding that the tax upon the re- Matter of Dows, 167 N. Y. 227; Mat- mainder was payable out of the prin- ter of Sherman, 30 Misc. 547. cipal fund, and that the fact that such 30 Matter of Lange, 55 N. Y. Supp. payment would affect the income did 750; Matter of Hall, 36 Misc. 618. not alter this result, that he must See Matter of Hoyt, 37 id. 720; Mat- dissent from the decision. "In my ter of Sloane, 154 N. Y. 109. opinion, the tax should be borne by 31 Matter of Higgins, N. Y. Law J., the beneficiaries in remainder, and the Dec. 7, 1889. order should run against those who 32 Matter of Zefita, 167 N. Y. 280. have been served; that the executrix 33 Matter of Johnson, 6 Dem. 146 ; has power under section 7 to sell that 20 St. Rep. 134. See Matter of Mc- interest in remainder for the purpose Mahon, 28 Misc. 697; 60 N. Y. Supp. of paying the tax, and that it is the 64. Where the interest of the life ' property ' referred to in that section." beneficiary is not taxable, the amount 34 See § 699a, ante. As to taxing of the remainderman's tax is, never- such transfers before the amendment thelesB, lawfully payable out of the of 1897, see Matter of Stewart, 2 Con- principal, (lb.) See Matter of Lea- noly, 281; aflfd., 131 N. Y. 274; Mat- vitt, 22 St. Rep. 81; Matter of Le- ter of Hyde, N. Y. Law J., April 27, fever, 5 Dem. 184; Matter of Hopkins, 1892. 603 Administration of Estate, Etc. § 724. the original Inheritance Tax Law, was exercised before the amend- ment of 1897 (chap. 284), legacies given by the donee of the power should not be taxed,^^ but a transfer, under an appointment, made after the amendment, is taxable, irrespective of the time when the grant of the power took effect.^^ The appraisal is to be made as of the time the power was exercised,^'' hence property which, at that time, was in the form of personalty should be so treated, al- though consisting of real estate at the death of the original testator.^^ Upon the question of exemption, it is also to be noted that transfers under a power of appointment are regarded as pass- ing under the will or grant, by which the power is exercised and not from the instrument creating the power; so that, transfers by the donee to his lineal descendants, or to the other persons speci- fied in section 221 of the act, are exempt, although such persons may be collateral heirs of the donor. ^^ § 724. Notice of appraisal — We do not understand it to be re- quired that a notice of a voluntary application for the appointment of an appraiser should be given to the parties interested in the estate, including the county treasurer or comptroller, as the appli- cation will be granted as of course, though the surrogate may, and usually does, direct such notice to be given.*** The important thing is, that notice of the appraisal shall be given to those interested, whose names must be designated in the order appointing the ap- praiser. It must not be forgotten that this is a judicial proceed- ing to fix the liability of a taxpayer, and he must have due notice of the proceeding against him, and must be given a hearing, or an opportunity to be heard, in reference to the value of his prop- erty and the amount of the tax which is to be imposed. Unless he has these, his constitutional right to due process of law has been invaded, and the tax imposed is invalid as having been imposed without jurisdiction.*^ The notice may be served personally or by mail, but as the statute does not prescribe the length of notice to be given, it is the duty of the surrogate to fix a reasonable time according to the circumstances of each case. 35 Matter of Harbeok, 161 N. Y. 211. Rogers, 71 App. Dlv. 462; Matter of 36 Matter of Vanderbilt, 50 App. Seaver, 63 id. 283; 71 N. Y. Supp. Div. 246 ; affd., 163 N. Y. 597 ; Matter 544. of Potter, 51 App. Div. 212. 40 See Matter of Wolfe, 137 N. Y. 3T Matter of Tucker, 27 Misc. 616; 205. The practice is to require notice 59 N. Y. Supp. 699. of the proceeding to be given to the 38 Matter of Dows, 167 N. Y. 227. county treasurer or comptroller. 39 Matter of Walworth, 66 App. Div. 41 See Matter of Daly, 34 Misc. 148; 171; 72 N, Y. Supp. 984; Matter of Matter of Bolton, 35 id. 688. §§ 725-727. Administeation of Estate, Etc. 604 § 725. Appraiser's report.— The appraiser should note in his re- port to the surrogate the appearances, on the appraisal, of any in- terested parties ; and also their objections, if any, to his appraisal. It is usual to file such objections in writing with the appraiser, and for him to annex them to his report. This will give the party filing objections the right to notice of the hearing before the sur- rogate, on the coming in of the report; though we do not under- stand that the filing of formal written objections to the appraisal and report is necessary to entitle a party to be heard in opposi- tion before the surrogate. To make a record for appeal to the Supreme Court, it is better practice for the appraiser to make findings, as in an ordinary reference.*^ The report must be made in duplicate, one of which should be filed with the surrogate' and the other with the State comptroller (§ 232). § 726. Proceedings on appraiser's report — " Erom such report and other proof relating to any such estate before the surrogate," he shall " forthwith,** as of course, determine the cash value of all estates, and the amount of the tax to which the same is liable " (§ 232).** § 727. Eeview of appraisement— The State comptroller, or any person dissatisfied*® with the appraisement or assessment and deter- mination of the tax, " may appeal therefrom to the surrogate within sixty days from the fixing, assessing, and determination of the tax by the surrogate as herein provided, upon filing in the office of the 42 See Matter of Bolton, supra. calendar for the next regular motion 43 The great age of a life tenant day. This notice must specify the whose share is subject to the collateral grounds of objection. (3) A special inheritance tax is no reason for post- guardian will be appointed to protect poning the confirmation of the report the interests of infants upon the re- of the appraiser. (Estate of Wilkes, turn of the appraiser's notice, if it N. Y. Law J., Oct. 31, 1889.) appears that their rights are_ involved *4 The following rules prevail in and they are not otherwise adequately New York county: (1) Upon the fil- represented. The last rule is now ing of the appraiser's report the sur- made statutory. (§ 232.) Where the rogate will immediately enter the estate of an infant is not taxable, no order determining the value of the allowance can be made to his special property and the amount of the tax. guardian. (Matter of Post, 5 App. The matter will not appear on the Div. 113.) calendar at this stage, nor will the 45 The executor may appeal from an court then consider objections to the order fixing the tax (Matter of Cor- report. (2) A party having objections nell, 66 App. Div. 162; 170 N. Y. 423), to the report, or the order entered and as the comptroller of the city of thereupon, may, within sixty days, file New York has authority to institute a notice of appeal. This notice to be the proceedings to enforce the tax, he, served upon all parties appearing be- too, may appeal, although his powers fore the appraiser, and proof of such in respect thereto have devolved upon service to be filed with the clerk, with the State comptroller. (Matter of the notice of appeal. Thereupon the Blackstone, 69 App. Div. 127.) proceeding will be placed upon the 605 Administration of Estate, Etc. § 728. surrogate a written notice of appeal, which shall state the grounds upon which the appeal is taken.** The surrogate shall immediately give notice, upon the determination by him as to the value of any estate which is taxable under this article, and of the tax to which it is liable, to all parties known to be interested therein, including the State comptroller" (§ 232). The appeal is not limited to questions of law, but may be taken to the surrogate upon both the law and the facts, and he has ample power to correct any error brought to his attention. For the purpose of making such correc- tion, the surrogate is not bound by the estimate of the appraiser or by the facts which appeared before him, but he may hear such new evidence and allegations as may be properly presented to him.*^ An appeal to the Supreme Court is taken from the surrogate's de- termination of the appeal to him, not from his order made on the return of the appraiser's report. In addition to the remedy by appeal, the statute also provides that if such comptroller*^ believes that the appraisal or determina- tion was made fraudulently, coUusively, or erroneously, he may, within two years after the entry of the order, apply to a justice of the Supreme Court of the judicial district in which the former owner resided, for a reappraisal.*® Such justice may appoint an appraiser for that purpose, who shall possess all the powers, be sub- ject to the same duties, and receive the same compensation, as is provided with respect to an appraiser appointed by the surrogate. His report shall be tiled with the justice by whom he was ap- pointed, and thereafter the same proceedings shall be had before such justice, as is provided to be taken before the surrogate. The assessment of the justice supersedes that of the surrogate and must be filed with the State comptroller, a certified copy being trans- mitted to the surrogate.^" § 728. When and to whom tax payable. — The tax is to be paid to the treasurer, in a county in which the ofiice of appraiser is not 46 Matter of Davis, 149 N. Y. 539; 49The application should be based Matter of Wormser, 51 App. Div. 441. on errors of fact only, as those of law 47 See Matter of McPherson, 104 can be reviewed by appeal. (Matter N. Y. 306; Matter of Westurn, 152 of Niven, 29 Misc. 550; 61 N. Y. Supp. id. 93; Matter of Thompson, 57 App. 956.) But a reappraisement should Div. 317. ' not be ordered simply because prop- 48 This remedy is available only to erty, since the appraisal, has sold for the State comptroller (Matter of a larger sum. (Matter of Bruce, 59 Smith, 40 App. Div. 480), but is not N. Y. Supp. 1083; Matter of Rice, 56 exclusive, as he may appeal to the Su- App. Div. 253.) See Matter of John- preme Court under . Co. Civ. Proc, son, 37 Misc. 542 ; 75 N. Y. Supp. 1046. §2570. (Morgan V, Warner, 45 App. 50 L. 1896, c. 508, §~232, as amended Div. 424; aflfd., 162 N. Y. 612.) L. 1897, c. 284. § 729. Administeation of Estate, Etc. 606 salaried, and in other counties, to tke State comptroller; and the treasurer or comptroller is required to give, and every executor, ad- ministrator, or trustee is required to take, " duplicate receipts from him of such payment." If such receipts were received from a county treasurer, the executor shall send one of them to the State comptroller, and if received from the State comptroller, to the State treasurer. The State comptroller or the State treasurer, as the case may be, receiving such receipt shall charge the oflficer receiving the tax with the amount thereof, and seal said receipt 'with the seal of his office and countersign the same and return it to the executor, administrator, or trustee, whereupon it shall be a proper voucher in the settlement of his accounts." ®' The time of the transfer' is fixed as the time when the tax shall be due and payable, i. e., the day of the death of the testator, in- testate, grantor, etc., as the case may be. An exception, however, is made in the case of a " transfer of any estate, property, or in- terest therein limited, conditioned, dependent or determinable upon the happening of any contingency or future event by reason of which the fair market value thereof cannot be ascertained at the time of the transfer." As to the tax on such an estate, it " shall accrue and become due and payable when the persons or corpora- tions beneficially entitled thereto shall come into actual possession or enjoyment thereof" (§ 222). § 729. Discount for prompt payment ; penalty for nonpayment " If such tax is paid within six months from the accruing thereof, a discount of five per centum shall be allowed and deducted there- from. If such tax is not paid within eighteen months from the accruing thereof, interest shall be charged and collected thereon 51 By section 236 of Act of 1896, ' transfer tax.' " Under a similar pro- " any person shall, upon the payment vision of the original act, it was held, of the sum of fifty cents, be entitled that where the tax was paid in New to a receipt from the county treasurer York county on decedent's real estate of any county or the State comptroller, situate in that county and another or, at his option, to a copy of a receipt, county, it having been appraised in that may have been given by such bulk, the receipt of the comptroller in treasurer or State comptroller for the the former county, filed in the latter payment of any tax under this article, county, is conclusive evidence that the under the ofiBcial seal of such treasu- tax on the real estate situated in the rer or comptroller, which receipt shall latter county has been paid. (Matter designate upon what real property, if of Keenan, 1 Connoly 226.) The any, of which any decedent may have comptroller, by accepting the tax im- died seized, such tax shall have been posed upon a life estate, is not es- paid, by whom paid, and whether in topped from contesting the part of the full of such tax. Such receipt may be order declaring that the " remainder recorded in the clerk's office of the estate is at present undeterminable, county in which such property is situ- and not now Subject to tax." (Mat- ate, in a book to be kept by him for ter of Bogert, 25 Misc. 466; 55 N. Y. that purpose, which shall be labeled Supp. 751.) 607 Administration of Estate, Etc. § 730. at the rate of ten per centum per annum from the time the tax accrued,^^ unless by reason of claims made upon the estate, neces- sary litigation or other unavoidable cause of delay, such tax can- not be determined and paid as herein provided, in which case in- terest at the rate of six per centum per annum shall be charged upon such tax from the accrual thereof until the cause of such delay is removed, after which ten per centum shall be charged. In all cases, when a bond shall be given (as below), interest shall be charged at the rate of six per cent, from the accrual of the tax until the date of payment thereof" (§ 223). As a tax does not carry interest by implication of law, as in the case of a debt, all systems of taxation, where default is made in the payment of the tax, add interest by way of a penalty. What is called " in- terest " in the statute is no part of the tax, but only a penalty, to "be exacted or not, according to whether the tax has been paid in time or otherwise.®^ § 730. Remission of penalty. — ■ The reduction of the penalty of ten per cent, to six per cent, in a case where the tax cannot be de- termined and paid within eighteen months after decedent's death, as above, amounts to this : that whether the delay to pay the tax is upavoidable or not, interest by way of a penalty is imposed from the expiration of that period; if the delay is unnecessary and avoidable, then an additional four per cent, is added, making ten per cent, as the maximum penalty.^* The law does not provide for a remission of all interest. ^^ The application for a remission of the extreme penalty may be made on motion and affidavits (and notice to the county treasurer, or to the comptroller, as the case may be), setting forth the ground or occasion for the delay beyond the eighteen months, in paying the tax. " Claims made upon the estate, necessary litigation, or other unavoidable cause of delay," are the grounds mentioned in the statute. The suspension of the executor's action, after he is served with a citation to revoke a probate, under Code Civ. Proc, § 2650, is not an " unavoidable delay," so as to relieve him of the liability to pay interest prior to the decree.®^ Ignorance of the law is no excuse, nor the fact that the payment of the penalty will be a hardship to the legatees. ^'^ The Act of 1887 62 Interest is chargeable against the 5* People v. Prout, supra, which estate of a remainderman under a will gives in effect this construction to sec- made prior to 1892, only from the tions 4, 5, of the Act of 1885. death of the life tenant. (Matter of 55 Matter of Brown, N. Y. Law J., Davis, 91 Hun, 53; affd., 149 N. Y. Feb. 8. 1893 (de Act of 1892). 539.) 56 Matter of Stewart, 131 N. Y. '274. 53 People V. Prout, 53 Hun, 541 ; 57 Matter of Piatt, 8 Misc. 144. 25 St. Rep. 33; affd., 117 N. Y. 650. § 731. Administeatioit of Estate, Etc. 608 provided that the penalty should not be imposed where, by reason of claims upon the estate, litigation or other unavoidable cause of delay, " the estate of any decedent, or a part thereof, could not be settled at the end of eighteen months from the death of the de- cedent," which was a re-enactment of the Act of 1885, except that the period of settlement was therein fixed at one year instead of eighteen months. Under the Act of 1892 the penalty is not charged where claims, litigation, or other unavoidable cause of delay prevents " the determination and payment of the tax." ^* It also changes the terms upon which the remission is granted. In the prior acts, the six per cent, interest ran from the expiration of eighteen months from accrual to the date when the cause of delay was removed;^® while in the Act of 1892, in cases where the penalty is not imposed, interest at the rate of six per cent, is charged from the date of accrual (the date of death) until the cause of delay is removed. Under whatever act an application of this character may be made, it is of the utmost importance that the date when the cause of delay was removed, should be fixed.^" § 731. Giving bond on deferring payment — Where the transfer is limited, conditioned, dependent, or determinable on the happen- ing of any contingency or future event, the beneficiary or the representative or trustee thereof may elect within eighteen months from the date of the transfer (decedent's death) not to pay the tax " until the person or persons beneficially interested therein shall come into the actual possession or enjoyment thereof." If the transfer be of personal property, the representative or trustee is required to give a bond to the State in a penalty of three times the amount of any such tax, with such sureties as the surrogate of the proper county may approve, conditioned for the payment of such tax and interest thereon, at such time or period as the 58 See Matter of Wormser, 51 App. seat in the Stock Exchange; yet the Div. 441; Matter of Bolton, 35 Misc. date when this asset was realized 688. upon is not given. It could have been 59 Matter of Moore, 90 Hun, 162. sold at an earlier date, though possi- The statute in force at decedent's bly at a sum less than that actually death governs, even though the period realized. The tax was actually fixed of exemption from interest did not and determined about a year after its expire until after the later act took accrual, and it is very clear could effect. (Matter of Fayerweather, 143 then have been paid. The representa- N. Y. 114; Matter of Milne, 76 Hun, tives of an estate cannot wait for 328.) higher prices on assets at the expense 60 Matter of Colhoun, N. Y. Law J., of the State." See Matter of Acker, June 15, 1893. In that case, the sur- N. Y. Law J., May 9, 1893; Matter of rogate said: "The petitioner herein Somerville, id., Jan. 21, 1893; Matter bases his application upon the circum- of Purroy, id., May 6, 1892; Matter stance that there was no asset out of of Johnson, id., Apr. 8, 1893. which the tax could be paid beside the 609 Administration op Estate, Etc. § 732. person or persons beneficially interested therein may come into the actual possession or enjoyment of such property, which bond shall be filed in the office of the surrogate. Such bond must be executed and filed, and a full return of such property, upon oath, made to the surrogate, within one year from the date of transfer thereof as herein provided, and such bond must be renewed every five years" (§ 226). § 732. Refund of tajc — The statute provides for the refunding of any tax " erroneously paid," and for the refunding of " an equi- table portion " of it in a case where a legatee or distributee, after having received his legacy or distributive share, less the tax, has been required to refund to the representative an amount necessary to satisfy debts of the decedent subsequently proved against the estate. In such a case, the legatee or distributee is entitled to a re- fund of an equitable portion of the tax, either by the representa- tive, unless he has paid it over to the county treasurer or State comptroller, and if so, by the latter officers. Provision is also made for the refunding of any tax, in part or whole, where the order fixing the same has been modified or reversed within two years^' from the entry of such order, but an application for a refiind must be made within one year from such reversal or modification. On the other hand, if deductions for debts were allowed on the ap- praisal, which are afterward proved to have been erroneously made, the surrogate may assess the tax upon the amount wrongfully or erroneously deducted.®^ The remedy furnished by the statute is exclusive ; hence, the Supreme Court has no power, on reversing a surrogate's assessment of the tax, to direct the county treasurer or the comptroller, as the case may be, to refund the tax paid Tinder the surrogate's order. ®^ Of course, if a representative pays the tax on a legacy or a distributive share which is not subject to the tax, or, having erroneously paid it, takes no steps to recover the amount paid, he is chargeable with the amount on his account- ing; that is, the legatee or distributee, as the case may be, is en- titled to receive his entire legacy or share without deduction of the amoimt thus erroneously paid,^ unless the payment was made with the knowledge and assent of the legatee or distributee.®^ 61 See Matter of Sherar, 25 Misc. es Matter of Howard, 54 Hun, 305 ; 138. 7 N. Y. Supp. 594; Matter of Hall, 62 L. 1896, e. 908, § 225, as amended 27. St. Rep. 133; 7 N. Y. Supp. 595. L. 1901, e. 173. See Matter of Win- 64 Matter of Peyser, 5 Dem. 244. ters, 21 Misc. 552; Matter of Park, 8 66 Farquharson v. Nugent, 6 Dem. id. 550. 296. 39 §§ Y33, 734. ADMiNisTEATioiir of Estate, Etc. 610 § 733. Costs of compulsory proceeding. — In proceedings insti- tuted by a district attorney, at the instance of the county treasurer or State comptroller, costs may be awarded, which, " after the collection and payment of the tax to the treasurer or comptroller, may be retained by the district attorney for his own use." These costs are in the discretion of the surrogate, but it is provided that they " shall not exceed in any case, where there has not been a contest, the sum of one hundred dollars, or, where there has been a contest, the sum of two hundred and fifty dollars." It is also provided that, whenever the surrogate shall certify that there was probable cause for issuing a citation and taking the proceedings, the State treasurer shall pay or allow to the treasurer or the State comptroller all expenses incurred for the service of citations and other lawful disbursements not otherwise paid. Where any county treasurer or the comptroller is cited as a party in a proceeding by the representative for the appointment of an appraiser, the State comptroller is authorized to designate and retain counsel to represent such county treasurer or comptroller therein, and to direct the payment of the expenses thereby incurred ; except that in the collection of taxes upon estates of nonresidents, which have been concealed, or the taxes thereon evaded, not more than ten per cent, of the tax and penalties collected shall be allowed for legal services.®^ § 734. Fees of county treasurer and comptroller. — The treasurer of each county, in which the ofiice of appraiser is not salaried, shall be allowed to retain on all taxes paid and accounted for by him. each year, under this act, five per centum on the first fifty thou- sand dollars, three per centum on the next fifty thousand dollars, and one per centum on all additional sums. Such fees shall be in addition to the salaries and fees now allowed by law to such officers (§ 237). SOL. 1896, c. 908, § 235, a,s amended the tax, costs should not have been L. 1901, c. 173. Where the district awarded against the executors, and attorney commenced the proceeding (2) that there was probable cause for before the expiration of the eighteen instituting the proceeding, and the dis- months, and, four days before the ex- trict attorney was entitled to a certifi- piration of that period, the executors cate. (Frazer v. People, 6 Dem. 174; paid the tax assessed upon a life es- s. o. as Matter of Frowe, 20 St. Rep. tate and remainders passing under the 3.55.) See Matter of McCarthy, 5 will, held, — ( 1 ) that there having Misc. 276 ; Ma'tter of HoSman, 76 been no " refusal or neglect " to i pay Hun, 399. 611 Administeatioit of Estate, Etc. §§ 735, 736. TITLE SEVENTH. PAYMENT OF LEGACIES. AKTICLE EIEST. DIFFBEENT KINDS OF LEGACIES. ■ § 735. General description — The most general description of legacies,®^ with regard to their subject-matter, is that they are either general or specific. Certain legacies are also called demon' strative, having the appearance, in some respects, of a specific legacy, and partaking of the nature of a general legacy. With respect to their enjoyment, legacies are again divided into vested and contingent, absolute and conditional. They may also he viewed as subject to other incidents, such as being cumulative, in distinction from a repetition of the same legacy. There are also annuities and residuary legacies. § 736. Specific and demonstrative legacies. — A specific legacy 's a bequest of a particular thing, specified and distinct from all others of the same kind belonging to the testator. It is not sub- ject to abatement, like general legacies, and is payable at the end of the year, with all the advantages which would have accrued to the legatee, had the subject of the gift been delivered when the will took effect.®* On the other hand, if the specific legacy be dis- 6T Every bequest of personal prop- the testator owned 360 shares of a erty is a legacy, including as well certain bank stock, and he bequeathed those made in lieu of dower and in 240 shares to one legatee, and 120 satisfaction of an indebtedness, as shares to another, but without indi- those which are wholly gratuitous, eating that the shares bequeathed It is the synonym of the word " be- were to be taken from those which he quest." (Orton v. Orton, 3 Keyes, owned at the time of his death. Held, 486.) that the legacies were general and not SSTiflft V. Porter, 8 N. Y. 516; specific, and the legatees were not en- Bevan V. Cooper, 7 Hun, 117; reversed titled to dividends intermediate his on another point, approved as to this, death and the delivery of the stock, in 72 N. Y. 317. A direction to the Compare De Nottebeck v. Astor, 13 executors to allow certain persons to N. Y. 98. ^n Brundage v. Brundage take certain property at an appraised (60 id. 544), it appeared that the will or the inventoried value, is not a spe- bequeathed to S. ten shares, and to E., cifie legacy, and, until the property is " during life," twenty shares of rail- set apart to such persons, the execu- road stock. After the execution of tors are chargeable with its value, the will, and before the testator's (Matter of Pollock, 3 Redf. 101.) By death, the company issued to its stock- the terms of a will, property which holders what were styled " interest had been the subject of previous gifts certificates," stated to be for moneys was, in legal effect, given by specific expended out of its earnings in im- bequests to such prior donees. Held, provements. By their terms they were to amount to a confirmation of such made assignable, and were payable, donations. (Decker v. Waterman, 67 at the option of the company, out Barb. 460.) InTifft v. Porter (sMpro), of future earnings, with dividends 736. Administration of Estate, Etc. 612 appointed, as by failure of the specific fund, or delay in its de- livery,®® the legatee will not be entitled to any recompense or satis- faction out of the personal estate of the testator. To make a money legacy specific, the money must be so described by the testator as to enable the legatee to point it out to the executor as in a par- ticular place, chest, bag, or purse, or in some person's hands, so that it can be delivered in specie. Thus a bequest of " all the money left in the W. S. Bank, after carrying out " certain prior directions contained in the will, is a specific legacy of a chose in action, which the legatee is entitled to receive in specie, together only with such increment as may have attached thereto.™ ISTo claim will lie, under, any circumstances, against the executors, for interest, eo nomine, thereon ; nor are they bound to make the same productive." A legacy is demonstrative when the particular fund or personal property is pointed out, from which it is to be taken or paid,''^ ac- companied by a bequest of the fund or thing given. Thus a be- quest of a specified sum in such securities as the legatee may select is a demonstrative legacy and not a specific legacy of the securi- thereon, or were convertible into stock. The testator received and retained these certificates on the shares held by him, and also the dividends declared thereon, and held the certificates at the time of his death. In an action for the construction of the 'vvill, held, that the legatees took the specified number of shares of stock, as they were at the time of the testator's death, and could claim no right to, or interest in, the certificates; that if the certificates were invalid, the stock was unaffected thereby; if valid — having been issued to, and received by, the testator, they became an inde- pendent part of his estate. For other illustrations, see Cogswell v. Cogswell, 2 Edw. 231; Clarkson v. Clarkson, 18 Barb. 646; Murphy v. Marcellus, 1 Dem. 288; Matter of Clark, 16 Misc. 405; 39 N. Y. Supp. 722. 69Plattv. Moore, 1 Dem. 191. Com- pare Matter of Stone, 15 Misc. 317; 37 K Y. Supp. 583. TO Such a bequest, however, does not include testator's equity in stocks Ihypotheeated as security for a loan by the bank. (Montignani v. Blade, 145 N. Y. Ill; 64 St. Rep. 558.) TlLarkin v. Salmon, 3 Dem. 270. In Matter of Hodgman (140 N. Y. 421; 55 St. Rep. 800), testator left his widow, who was made an executrix of the will, the sum of $50,000, " which may be invested in bank stock * * * and in bonds." Held, that the legacy was not specific, and hence she was not entitled to dividends on the stock or bonds from the testator's death to the time of the payment of the legacy. T2 See Walton v. Walton, 7 Johns. Ch. 258; Enders v. Enders, 2 Barb. 362. In Florence v. Sands (4 Redf. 206), the testatrix, after bequeathing certain general and specific legacies, directed the payment of $50 per month to F. during life, etc., " out of the rents and income of her estate," and further directed the executors to keep down the interest on the mortgage on her real estate, and to pay all taxes, assessments, and repairs. The per- sonal estate was not sufficient to sat- isfy the general legacies in full. Held, that the legacy to F. was a demonstra- tive legacy, and should be paid out of the particular fund, in preference to general legacies; if the particular fund was inadequate to satisfy the demonstrative legacy in full, the de- monstrative legatee was, as to the un- paid balance of his legacy, a general legatee, and his legacy was subject to abatement with the other general leg- 613 Administeation of Estate, Etc. §737. ties)''^ Where, however, only one of these elements is present, e. g. — the one directing payment out of a particular fund, it is a specific legacy, and the legatee is entitled to only so much of the fund as existed at the time of the decedent's death.'^* If the fund or property, out of which a demonstrative legacy is payahle, fails, in whole or in part, resort may be had to the general assets, as in the case of a general legacy.''^ As to the legatee, it is considered specific, and, therefore, does not, at common law, abate on failure of assets.'^* § 737. General and residuary legacies Every legacy not spe- cific or demonstrative is a general legacy. The presumption, both in law and equity, is in favor of general legacies.'^ This definition, includes annuities, which are defined to be bequests of certain acies. But ■when it is clearly the in- tention of the testator that a fund is to be created by the sale of certain property, and the income of the pro- ceeds of such sale paid to the legatee, it is a specific and not a demonstra- tive legacy; and it is the duty of the executors to invest the money arising from the sale, and to pay the legatee the income only'. (Watrou-s v. Smith, 7 Hun, 544.) See Matter of Von Kel- ler, 28 Misc. 600; 59 N. Y. Supp. 1079. 73 Dunning v. Dunning, 82 Hun, 462; 31 N. Y. Supp. 719; Matter of Anderson, 19 Misc. 210; 43 N. Y. Supp. 1146; Spencer v. De Witt C. Hay, etc., Assn., 36 Misc. 393; 73 N. Y. Supp. 712; Olcott v. Ossowski, 34 Misc. 376; 69 N. Y. Supp. 917; Matter of Van Vliet, 5 Misc. 169; Wetmore v. Peck, 66 How. Pr. 54. In Matter of Hadden ( 1 Connoly, 306), the testator, ovening various stocks and bonds, bequeathed to differ- ent legatees certain sums of money " out of any stocks or bonds that I may own at the time of my deatti, the same to be reckoned and counted at their par value dollar for dollar." Held, the legacies were general, not specific, and it was the right and duty of the executors to select the bonds for the legatees. In Matter of Brett (57 Hun, 400; 10 N. Y. Supp. 871), the will bequeathed specifically a note, with all portions due thereon, to one legatee and a portion of the proceeds of the sale of specific furniture to another. The rest of the estate was directed to be sold and certain lega- cies to be paid therefrom, any surplus or deficit to be apportioned among them. Held, that, as the bequests to the first two legatees were specific, they were not entitled to a propor- tionate share of the surplus from the residuary estate. li Crawford v. McCarthy, 159 N. Y. .514. In that case, testatrix directed her daughter, out of a deposit, to pay testatrix's son the sum of $1,500, the loill containing no general iequest of that amount, — Held, that where the testatrix had reduced, in her lifetime, the amount" of the deposit to a sum insufficient to pay the legacy, the son was only entitled to the amount that was left. 75 See Methodist, etc., Church v. Hebard, 28 App. Div. 548; 51 N. Y. Supp. 546. Legacies directed to be first paid, are a charge upon the gen- eral estate, notwithstanding the ex- ecutors had set apart a special lot of securities to meet them as they be- came due. (Collin v. Wilcox, 47 St. Rep. 917.) As to the application of the rule that where one claimant has two funds to which he may resort, and another has an interest in only one of them, the latter may compel the for- mer to satisfy his claim out of the fund on which the latter has no claim, see Fargo v. Squiers, 154 N. Y. 250. 78 See Newton v. Stanley, 28 N. Y. 61; Giddings v. Seward, 16 id. 365; Pierrepont v. Edwards, 25 id. 128, and § 754, post. 77 This presumption must yield to the expressed intention of the testa- tor, that securities shall pass in kind. (Cramer v. Cramer, 35 Misc. 17; 71 N. Y. Supp. 60.) § 738. Administration of Estate, Etc. 614 specified sums periodically.''* If the fund or property out of which they are payable fail, resort may be had to the general assets as in case of a general legacy.''^ It also includes residuary legacies, which embrace only that which remains after all the bequests of the will are discharged, and the debts of the testator are satis- fied. It carries not only what the testator did not attempt to dispose of, but every part of his property which, by lapse or other- Avise, is not effectually bequeathed to others,^** unless the residuary clause is limited by its terms to what remains after payment of specific legacies. In such case, if any of the legacies are void, there is another residuum which is undisposed of.*^ In the inter- pretation of a residuary clause, the court will look, not only at the language employed, bvit at the surrounding circumstances, to dis- cover what the intention of the testator was.*^ § 738. Legacies charged upon land — So the question whether a particular legacy is a charge upon the real estate, SQ as to exonerate the personalty from its payment, depends upon the intention of the testator, either clearly expressed by the will, or, with equal clearness, inferred from the language and dispositions' of the instrument. Where there is not a clear and manifest intention on the part of the testator to charge a legacy upon lands, and the personal estate is not in terms exonerated, and is not specifically given away by the will, it will be deemed the primary fund for the payment of legacies, notwithstanding such legacies, by the terms of the will, are expressly charged upon devisees.*^ The usual clause, devising all the rest of the testator's real and personal es- tate not before devised, is not sufiicient to show an intention to charge the real estate;^ nor is the mere direction that all debts and legacies are to be paid.*^ But where the testator directs his T8 A gift of the interest on a speci- added to the residue. ( Matter of Ben- fied sum, payable annually, is not an son, 96 N. Y. 499.) annuity. (Matter of Dewey, 153 N. Y. 83 Hoes v. Van Hoesen, 1 N. Y. 120. 63.) See Dodge v. Manning, id. 298; Kel- 79 See Spencer v. Spencer, 38 App. sey v. Western, 2 id. 500 ; Clason v. Div. 403 ; 56 N. Y. Supp. 460. Lawrence, 3 Edw. 48. 80 King V. Strong, 9 Paige, 93 ; 84 Hindman v. Haurand, 2 App. Div. Banks v. Phelan, 4 Barb. 80. See 146; 37 N. Y. Supp. 828; affd., 159 Pirnie v. Purdy, 19 id. 60; Havens v. N. Y. 546. See Matter of McKay, 33 Havens, 1 Sandf . Ch. 324. Misc. 520 ; 68 N. Y. Supp. 925 ; Lyons 81 Kerr v. Dougherty, 79 N. Y. 327 ; v. Steinhardt, 37 Misc. 628 ; 76 N. Y. Beekman v. Bonsor, 23 id. 298, 312. Supp. 241. See also Downing V. Marshall, id. 382; SBLupton v. Lupton, 2 Johns. Ch. White V. Howard, 46 id. 144. 614; Matter of Grotian, 30 Misc. 23; 82 Kerr v. Dougherty, 79 N. Y. 327. 62 N. Y. Supp. 99'6 ; Carberry v. Ennis, To ascertain the amount of a general 72 App. Div. 489. See Crawford v. residue, all the income of the estate, McCarthy, 159 N. Y. 514, not otherwiae disposed of, must be 615 Abministeatiow of Estate, Etc. § 738. debts to be first paid, and then devises real estate, or wbere he de- vises the residue of his estate, real and personal, after payment of debts and legacies, and there is a deficiency of assets to pay the debts or legacies, an intention to charge the real property will be inferred.*® And where a will directs one to whom a life estate is given, with full power to dispose thereof, to pay a legacy, whether such devisee be the executor or another, the legacy is charged upon the real estate so devised.*^ So, too, where all the 86 Rafferty v. Clark, 1 Bradf. 473; personal estate, and keep the same riynn v. Croniken, 9 How. Pr. 214. invested in good securities." Then fol- See Reynolds v. Reynolds, 16 N. Y. lowed a specification of the trusts, 257; Taylor v. Dodd, 2 Sup. Ct. (T. & which were for the benefit of the te?- C.) 88; Spilane v. Duryea, 51 How. tator's widow and children. The Pr. 260; Tracy v. Tracy, 15 Barb, clause contained the only provision for 503; Stewart v. Crysler, 52 App. Div. the latter, and the principal provision 597 ; 65 N. Y. Supp. 483 ; Matter of for the former, and embraced the larg- Ryder, 41 App. Div. 247 ; 58 N. Y. est part of the testator's estate. The Supp. 635; Hogan v. Kavanaugh, 138 personal estate proved insufficient to N. Y. 417; 52 St. Rep. 884. But that pay the debts and general legacies, the rule does not apply where it appears inadequacy being revealed after the that there was sufficient assets when testator's death. Held, that the gen- the will was made. ( Hindman v. eral legacies were not chargeable upon Haurand, supra.) In Kalbfleisch v. the residuary real estate. See Gue- Kalbfleisch (67 N. Y. 354), the testa- lieh v. Clark, 3 Sup. Ct. (T. & C.) tor devised and bequeathed his residu- 315; Purdy v. Purdy, 36 App. Div. ary estate to his nine children equally. 535 ; 57 N. Y. Supp. 166. ' In Dunham By a codicil, he authorized his exeeu- v. Deraismes ( 165 N. Y. 65 ) , testator tors to sell his real estate not specifi- bequeathed to his wife an annuity dur- cally devised, and directed that the ing her life, and, in express terms, pecuniary legacies should be paid charged the rents and profits of his over, not to the life tenants, but upon real estate with its payment, and by a their decease, respectively, to their later clause gave another annuity of issue, the former receiving only the $300 to another person to be paid by income; no provision was made in the his executors, and devised all the rest will for the payment of the testator's and residue of his real estate upon a debts ; his personal property was much trust that might continue for eighteen more than sufficient to pay them, but years after the making of the will, the residue, with $113,000 and tlie while the disposition of his personal $15,000 added, was insufficient to pay property was immediate, — Held, upon the pecuniary legacies. Held, that a consideration of the whole vrill, that the intent of the testator was to the $300 annuity was charged upon charge the pecuniary legacies upon the real property, even after the ex- the residuary real estate, and to au- piration of the trust, in exoneration thorize the sale thereof, if necessary, of the personal property although to make up the sum required for their there was no proof of any inadequacy payment. See Matter of Spencer, 8 of the latter. See Matthews v. Stud- Misc. 193; 29 N. Y. Supp. 1083. In ley, 17 App. Div. 303; aflfd., 161 N. Y. Bevan v.' Cooper (72 N. Y. 317), the 633; Arthur v. Dalton, 14 App. Div. will, after directing the payment of 108; Smith v. A. D. Farmer, etc., Co., the debts out of the personal property, 16 id. 438. and certain other general bequests to 87 Colvin v. Young, 81 Hun, 116; strangers to his blood, and a specific 30 N. Y. Supp. 689; Wellbrook' v. devise of certain real estate, devised Often, 35 Misc. 459; 71 N. Y. Supp. and bequeathed all " the rest, residue 937 ; Hutchins v. Hutchins, 18 Misc. and remainder of my estate, real and 633; 42 N. Y. Supp. 601. See Sher- personal, to the executors of my will, rer v. Bartlett, 45 App. Div. 135; 60 in trust, to rent the rest of my real N. Y. Supp. l067. Compare Craw- estate, and to invest the rest of my ford v. McCarthy, 159 N. Y. 514. §739. Administeation of Estate, Etc. 616 personal estate is specifically bequeathed and power given to the executors to sell the real property for the purposes of administra- tion.^ But a direction for the payment of legacies out of the proceeds of the only piece of real property then owned by testator, does not indicate an intent to charge the legacies upon real estate subsequently purchased by him.** Where a testator directs that certain real estate be sold, and the proceeds divided among persons named in the will, the general rule is, that the legatees, if of full age, may elect to take either the land or the money, provided the rights of others are not thereby affected.®* § 739. Personal liability , of devisee for legacy charged. — If a devisee of land, charged with the payment of legacies, accepts the devise, he has the personal duty imposed on him to pay, without reference to the fact whether the property devised and accepted is sufHcient for that purpose. The liability is created by the accept- ance charged with the duty, and the duty being clear and personal, the law will raise an implied promise to discharge it.*^ 88Toch V. Toch, 81 Hun, 410; 30 N. Y. Supp. 1003; Matter of James, 80 Hun, 371; 30 N. Y. Supp. 1. See Matter of Vandevort, 8 App. Div. 341; 40 N. Y. Supp. 791; Matter of Goetz, 71 App. Div. 272. 89Jouflfret V. Jouffret, 20 App. Div. 455; 46 N. Y. Supp. 810. soMellen v. Mellen, 139 N. Y. 210; 54 St. Rep. 670. See McDonald v. O'Hara, 144 N. Y. 566; 64 St. Rep. 236 ; Harper v. Chatham Nat. Bank, 17 Misc. 221; 40 N. Y. Supp. 1084; Prentice v. Janssen, 14 Hun, 548 ; affd., 79 N. Y. 478; Armstrong v. McKelvey, 104 id. 179. Compare Foote V. Bruggerhof, 84 Hun, 473; Smith v. A. D. Farmer, etc., Co., 16 App. Div. 438. A mortgage debt hafe preference over legacies in the pro- ceeds of a sale of realty to satisfy such legacies. (Rauchfuss v. Rauch- fuss, 2 Dem. 271 ; citing Erwiu v. Loper, 43 N. Y. 521.) See Beekman V. Vanderveer, 3 Dem. 619. As to paying debts from proceeds, see Dun- ning V. Dunning, 82 Hun, 462. siGridley v. Gridley, 24 N. Y. 130; Gilbert v. Taylor, 148 id. 298; Collis- ter v. Fassitt, 163 id. 281; Thurber v. Chambers, 66 id. 42; Keteltas v. Pen- fold, 4 E. D. Smith, 122; Matter of Boyd, 4 Redf. 154; Ragan v. Allen, 7 Hun, 537; Hoyt v. Hoyt, 17 id. 192; Stoddard v. Johnson, 13 id. 606; San- ford V. Sanford, 4 id. 753; Hillis v. Hillis, 16 id. 76; Shanley v. Stanley, 22 App. Div. 375 ; 48 N. Y. Supp. 32 ; Zweigle v. Hohman, 75 Hun, 377; 27 N. Y. Supp. 111. See Buffalo L. & T. Co. V. Leonard, 9 App. Div. 384; 41 N". Y. Supp. 294; affd., 154 N. Y. 141; Colvin v. Young, 81 Hun, 116; 30 N. Y. Supp. 689. Where a tes- tator gave one-fourth of his residu- ary estate, and a like share in cer- tain real property, " to have and to hold the same, subject to, and charged with, the payment hy him out of the same," so soon as practicable, and within two years after testator's death, of specified sums of money to certain persons mentioned (the two years having expired and the legatee having died before payment), it was held, that the bequest was burdened with sub-legacies in the nature of a. condition subsequent, and that the ex- ecutors' duty would be discharged by payment to the primary legatee. (Brittin v. Phillips, 1 Dem. 57.) A will giving to two of te3tatoi"s daugh- ters a farm of 250 acres and directing them to pay to another daughter $3,000 in annual instalments, in de- fault of which payments, or any of them, she was to take specified sixty acres of the farm, — Held, to give the two devisees the right to elect to re- fuse to take the sixty acres, and be exonerated from the payment of the $3,000. (Damuth v. Lee, 29 App. Div. 617 Administkation of Estate, Etc. § 740. § 740. Vested and contingent legacies.^ — A legacy is contingent ■when the enjoyment of it depends upon the happening of some event — ■ as the arrival of the legatee at a certain age — and vested, when given generally, in which case, if payable out of the per- sonalty, it vests immediately upon the testator's death. The dis- tinction between vested and contingent legacies is important mainly with reference to the question of lapse. It also becomes important as bearing upon the question whether, and from what time, the legatee is entitled to interest on the legacy, and to what person the legacy goes when limited over. The leading inquiry upon which the question of vesting or not vesting turns, is, whether the gift is immediate, and the time of payment or of enjoyment only postponed, or is future and contingent, depending upon the beneficiary arriving of age, or surviving some other person, or the like. If futurity is annexed to the substance of the gift, the vest- ing is suspended ; but if it appear to relate to the time of payment only, the legacy vests instantly. The mere circumstance that the gift is future, that is, the actual possession is postponed, does not make time of the substance of 'the gift, or affix a condition to the immediate vesting of the interest. ,That question is determined by the intention of the testator, as gathered frona the whole will, and not by particular expressions.^^ The law favors the vesting 26; 51 N. Y. Supp. 648.) Compare a mere implied assumpsit arising from the instructive case of Dill v. Wisner, the devise. (Livingston v. Living- 23 Hun, 123. A devisee of lands ston, 3 Johns. 189.) Compare Lock- chargeable with a legacy is liable to wood v. Stockholm, 11 Paige, 87. But pay interest on the legacy from the see, now, Stoddard v. Johnson, 13 time it was payable, whether payment Hun, 606, and Scott v. Stebbins, 91 was demanded or not. (Glen v. Fisher, N. Y. 605. 6 Johns. Ch. 33; Birdsall v. Hewlett, 92 Everitt v. Everitt, 29 N. Y. 39; 1 Paige, 32; Tole v. Hardy, 6 Cow. Fargo v. Squiers, 6 App. Div. 485; 39 333.) See Gilbert v. Taylor, 148 N. Y. N. Y. Supp. 648; 154 N. Y. 250; Rudd 298. In such a, case, the legacy is an v. Cornell, 58 App. Div. 207; 68 N. equitable charge upon the land, al- Y. Supp. 757; affd., 171 N. Y. 114. though the devisee is also the executor For cases in which the language of the or residuary legatee, unless the will will was held to create an immediate indicates a contrary intention. (Har- vesting of the estate, or otherwise, ris V. Fly, 7 Paige, 421; Dodge v. see Warner v. Durant, 76 N. Y. 133; Manning, 11 id. 334; Jenkins v. Loder v. Hatfield, 71 id. 92; Pineke v. Freyer, 4 id. 47; Livingston v. Free- Fincke, 53 id. 528; Stevenson v. Les- land, 3 Barb. Ch. 510.) If he accept ley, 70 id. 512; Cushman v. Horton, the devise, he is personally liable for 59 id. 149; McLean v. Freeman, 70 the legacy in equity, without an ex- id. 81; Theological Seminary v. Kel- press promise. (Kelsey v. Western, logg, 16 id. 83; Tucker v. Bishop, id. 2 N. Y. 500.) At common law an 402; Bedell v. Guyon, 12 Hun, 396; express promise, made after the ex- Brown v. Nicholson, 8 id. 464; Five ecutors had assented to the legacy, and Points House of Industry v. Amerman, in consideration of his having become H id. 161; Ross v. Roberts, 2 id. 90; seized under the devise, was necessary Hays v. Gourley, 1 id. 38; Smith v. (Beecker v. Beecker, 7 Johns. 99) ; Rockefeller, 3 id. 295; Delavergne v. and an action at law will not lie upon Dean, 45 How. Pr. 206 ; Lloyd v. Van § 740. Administration of Estate, Etc. 618 of estates, and unless a contrary intention is unequivocally ex- pressed, it will not be imputed to tlie testator.*^ The contingency which will render a legacy inalienable must be one which relates to the person who will take, and not to the happening of a future event. ^* If a legacy is directed to be paid when the legatee at- tains full age, the gift is absolute, and vests on the death of the testator ; but if it is payable when he comes of age, or if, or pro- vided, he lives till he is twenty-one, it does not vest till the contingency happens, and if it never happens, the legacy lapses.®^ The question of the vesting or nonvesting of a legacy becomes important in the case of the death of a tenant for life, or for the life of another, or until majority, or depending upon any other limitation. If, for example, a legatee who is entitled to income during the life of another, dies, such income passes to the legatee's Antwerp, 50 id. 81; Betts v. Betts, postponed until that time arrives 4 Abb. N. C. 317; Meyer's Will, 57 (Paget v. Melcher, 21 Misc. 196; Mat- How. Pr. 203; Floyd v. Fitcher, 38 ter of Crane, 164 N. Y. 71; Hafner v. Barb. 409; Larocque v. Clark, 1 Redf. Hafner, 62 App. Div. 316); there 469 ; Hamlin v. Osgood, id. 409 ; Kelso are many exceptions to the rule. V. Cuming, id. 392; Young v. Case, 2 (Carr v. Smith, 25 App. Div. 214; id. 55; Van Wye^ v. Bloodgood, 1 aflfd., 161 N. Y. 636; Matter of Bat- Bradf. 154; Ex p. Turk, id. 110; An- telle, supra; Matter of Young, 78 drews v. N. Y. Bible Soc, 4 Sandf. Hun, 521; Matter of Watts, 68 App. 156; Marsh v. Wheeler, 2 Edw. 156; Div. 357; Bowditch v. Ayrault, 138 Tucker v. Ball, 1 Barb. 94; Sharp- N. Y. 222; Matter of Embree, 9 App. steen v. Tillou, 3 Cow. 651; Post v. Div. 602; affd., 154 N.Y. 778; Shangle Hover, 30 Barb. 312; Williams v. Con- v. Hallock, 6 id. 55.) r,ad, id. 524; Dubois v. Ray, 7 93 McKinstry v. Sanders, 2 Sup. Ct. Bosw. 244; Ennis v. Pentz, 3 Bradf. (T. & C.) 181. 382 ; Dixon v. Storm, 5 Redf. 419 ; 9* Sawyer v. Cubby, 146 N. Y. 192 ; Steinele v. Oechsler, id. 312; Spencer 66 St. Rep. 582. See Matter of Dip- V. See, id. 442; Magill v. McMillan, pel, 71 App. Div. 598. 23 Hun, 193; Matte}- of Bogart, 28 95 Patterson v. Ellis, 11 Wend. 259; id. 466 ; Hitchcock v. Peaslee, 89 id. Burrill v. Shell, 2 Barb. 457 ; Hone v. 506; Matter of Cameron, 76 id. 429; Van Schaick, 20 Wend. 564; Weyman McKay v. McAdam, 80 id. 260; Mat- v. Ringold, 1 Bradf. 40; Wheeler v. ter of Ball, 11 Misc. 433; Matter of Lester, id. 213; Post v. Hover, 30 Lehman, 2 App. Div. 531; Farmers' Barb. 312, 319; Dupre v. Thompson, L. & T. Co. V. Ferris, 67 id. 1; Matter 8 id. 537; CoMn v. Young, 81 Hun, of Battelle, 24 Misc. 61; Karstens v. 116; Dimmick v. Patterson, 66 id. Karstens, 29 App. Div. 229. The rule 492. A direct gift to a minor is vested, that, when legacies are payable in the notwithstanding it is given over, in future, without any condition annexed, case of his death under age, or " with- or expressed intention to the con- out heirs;" and though liable to be trary, they vest at testator's death, divested on a contingency, the substi- does not apply where his intention is tuted legatees will only take the prin- apparent that they shall only vest at cipal; and the interest accruing mean- the happening of a particular event while belongs to the minor, and may and on the fulfilment of the condi- be appropriated for his support. (Pin- tions annexed. (Shipman v. Fanahaw, ney v. Fancher, 3 Bradf. 198.) See 15 Abb. N. C. 288.) Although, where Matter of Goodrich, 2 Redf. 45; Wil- there is no gift but in a direction to lets v. Titus, 14 Hun, 554; Smith v. pay at a future time, the vesting is Parsons, 146 N. Y. 116. 619 Administeation of Estate, Etc. §§ 741, 742. personal representatives for the remainder of the life of the cestui que vie.^^ § 741. Vested right to a contingent estate The estate may be contingent, but the right to take it in possession, if it ever does vest, is a vested right.*^ Contingent estates, some of whieh form the basis of vested rights, although all alike in being outstanding, wait- ing for the happening of a contingency, fall into two distinct groups: (1) those where the contingency arises, either wholly or partly,^^ from uncertainty concerning the person to whom they are limited; and (2) where the contingency arises wholly from uncertainty concerning the event on which they are limited to take effect.*^ § 742. Conditional legacies. — An absolute legacy is where a thing is bequeathed without any qualification, while a conditional legacy is one depending upon the happening or not happening of some uncertain event, by which it is either to take place or be de- feated.-^ But where there is no provision for forfeiture, and noth- ing to indicate an intention that vesting is to depend upon per- formance, a provision, in terms a condition, will be held to import a covenant, and not a condition.^ The condition may be either precedent or subsequent. If precedent, the estate vests upon its performance ; if subsequent, it vests upon the testator's death, sub- ject to be divested by nonperformance.* Failure to perform is 96 Morgan v. Williams, 66 How. Pr. nating any person by whom that ques- 139. See Tuttle v. Tuttle, 2 Dem. 48. tion is to be determined, is too in- 97 Hennessy v. Patterson, 85 N". Y. definite and uncertain to be capable of 91; Nellis V. Nellis, 99 id. 505; Ham observance. (Horndorf v. Horndorf, V. Van Orden, 84 id. 257. 13 Misc. 343; 34 N. Y. Supp. 560.) 68Haynes v. Sherman, 117 N. Y. 2 Cunningham v. Parker, 146 N. Y. 433. 29; 65 St. Rep. 774. 99 See Chaplin on Susp. of Power of 3 Five Points House of Industry v. Aliena., p. 48, § 73 et seq., for a satis- Amermann, 11 Hun, 161; American factory statement of New York law Church, etc., Soc. v. Griswold College, on this subject. 27 Misc. 42 ; 58 N. Y. Supp. 3 ; Mat- ISee Caw v. Robertson, 5 N. Y. ter of Woods, 33 Misc. 12; 67 N. Y. 125; Cooper v. Remsen, 3 Johns. Ch. Supp. 1123. A bequest to a charitable 382; id. 521; 5 id. 459; Crocheron v. institution, on condition that it care Jaques, 3 Edw. 207. Of the duty of for a certain person, is valid, and the executors, in the payment of a be- society is entitled to it, if willing to quest conditioned on their being satis- conform to the conditions imposed, al- fled that the beneficiary had reformed though previous to testator's death the from dissipation, see Dustan v. Dustan, party named has been expelled from 1 Paige, 509 ; Smith v. Rockefeller, 3 the institution for a violation of its Hun, 295; Matter of Keenan, 15 Misc. rules. (Livingston v. Gordon, 84 N. 368. A condition that a legatee shall Y. 136.) See De Veaux College v. be free from immoral, disorderly, and Highlands Co., 63 App. Div. 461. intemperate conduct, without provid- Where a bequest is made to a cor- ing any standard by which or desig- poration for its own benefit, no trust § 742. Administration of Estate, Etc. 620 stifficient to ■warrant the inference that the legatee refused the be- quest.* Precedent contingencies are such as must happen or be performed before the estate can vest or be enlarged; subsequent are such that, by their failure or nonperformance, an estate already vested may be defeated.^ There are no technical words to distin- guish them, and whether they be the one or the other is a matter of construction, and depends upon the intention of the party creat- ing the estate.® Thus a legacy in trust, conditioned upon the im- mediate and continued engagement of the beneficiary in the busi- ness conducted by the testator in his lifetime, fails upon the dis- continuance of such services, although caused by illness and perma- nent physical disability.^ If a legatee upon condition accepts the legacy, and enters into possession, he must perform the condition, however burdensome.* He is not bound to make his election whether or not to take the bequest, until the condition and value of the gift can be reasonably ascertained. A mere design or in- tention to accept will not conclude him, or prevent a retraction, if he was ignorant of the real state of the legacy, and the extent of the charge upon it. If he refuses to accept the legacy, the execu- tor will be considered as a trustee holding the fund for the bene- fit of those interested in the legatory charges.® is created by a suggestion as to the divided on the question whether a cer- use of the fund. (Matter of Isbell, 1 tain condition was precedent or sub- App. Div. 158; 37 N. Y. Supp. 919.) sequent. For conditions held pre- S. P., Preston v. Howk, 3 App. Div. cedent, see Parmelee v. The Oswego & 43; 37 N. Y. Supp. 1079; aflfd., 154 S. E. R. Co., 6 N. Y. 74; Kenyon v. N. Y. 734. Where a will attaches to See, 94 id. 563 ; Bennett v. Culver, 97 a legacy an enabling condition, it is id. 250; Matter of Bratt, 10 Misc. an immaterial circumstance whether 491. Conditions subsequent, see Vail the condition is fulfilled before or v. L. I. E. R. Co., 106 N. Y. 283; after testator's death. Thus, where Matter of Traver, 161 N. Y. 54; Mat- testator directed that, upon his son ter of Raab, 42 App. Div. 141; Col- " M. attaining the age of twenty-one lister v. Fassitt, 7 id. 20 ; La Chapelle years," his executors give to his said v. Burpee, 69 Hun, 436 ; NicoU v. N. son the sum of $10,000, and M. be- Y. & E. E. Co., 12 N. Y. 121; Hogan came twenty-one years of age before v. Curtin, 88 id. 162; Garrett v. his father's death; held, upon his Scouten, 3 Den. 334;' Towle v. Rem- petition to compel payment of a por- sen, 70 N. Y. 303. See Chaplin, Susp. tion of his legacy, that the legatee's of Power, etc., § 54. For conditions attainment of majority being the es- held void as against public policy, see senee of the condition, the purpose Matter of Haight, 51 App. Div. 310; was answered by his coming of age Cruger v. Phelps, 21. Misc. 252; in the lifetime of the testator, and O'Brien v. Barkley, 60 St. Rep. 520. the application was granted. (Eisner 7 Welsh v. Welsh, 20 Week. Dig. v. Koehler, 1 Dem. 277.) 369. iHaebler v. Eichler Brewing Co., 42 8 Soper v. Halsey, 85 Hun, 464; 33 App. Div. 95 ; 58 N. Y. Supp. 894. N. Y. Supp. 105. 5 2 Bl. Comm. 154. 9 Wheeler v. Lester, 1 Bradf. 293 ; 4KentComm. 124; Towle v. Rem- Cronkite v. Cronkite, 1 Sup. Ct. (T. sen, 70 N. Y. 303. See Newkerk v. & C.) 266; Stoddard v. Johnson, 13 Newkerk, 2 Cai. 345, where the court Hun, 606. 621 ADMINISTEATIOISr OF EsTATE, Etc. §§ 743, 744. § 743. legacy to executor A legacy to a person named as ex- ecutor in the will is a conditional legacy, and the right of the legatee to receive it depends upon his assumption of the office, un- less it appears by the will itself, or the nature of the legacy, or other circumstances, that the legacy was given as a mark of re- gard, or by reason of relationship of the legatee, in which case the legacy will be considered absolute and not conditional. But the presumption is that a legacy to an executor was given to him in that character, and hence will fail, if he renounces or neglects to accept the appointment, or if, having accepted, he gives up the trust." Before a gift to executors, eo nomine, can be held to vest in them individually, the intention that it should so vest must be plainly manifested, and where it is coupled with an expression of confidence that they will follow his known wishes, the gift will be deemed a trust." § 744. Cumulative legacies — Where the will contains two lega- cies, of the same thing or amount, to the same person, whether the legatee takes both (in which case they are called cumulative) or only one (the second being a mere repetition of the first), is always governed by the intention of the testator. The presump- tion is that the latter legacy is a mere repetition or substitution; but where the two are in different instruments, e. g., where one is given by will and the other by codicil, the presumption is that both are intended. But either presumption is liable to be con- ic See Morris v. Kent, 2 Edw. 175. ters, although in consequence of ob- In Campbell v. Mackie ( 1 Dem. 185 ) , jeetions raised to his serving by a co- the testator gave a legacy " to my executor and a legatee, took no share friend B. or his heirs one thousand in the bequest. Compare Matter of dollars," and named B. as an exec- Brigg, 39 App. Div. 485; 57 N. Y. utor. Held, that the bequest was not Supp. 390; Matter of Strong, 5 Misc. designed as a compensation for ser- 433. vices which testator expected would n Edson v. Bartow, 10 App. Div. be rendered by the legatee in the ad- 104; modified in other respects, 154 ministration of the estate. In Matter N. Y. 199. Also held, in that case, of Cameron ( N. Y. Daily Beg., Jan. that as to the other two executors who 27, 1881), the testator gave $2,000 to were not aware of their appointment each of his executors. One of them or of the provisions of the will, until was ten days thereafter discharged on its publication, the will made an ab- his own application. Held, that he solute transfer and the executors, tak- was ' not entitled to a proportionate ing as tenants in common, and not as share of the legacy. In Fletcher v. joint tenants, they were entitled to Hurd (38 St. Rep. 648; 14 N. Y. two-thirds of the legacies which failed. Supp. 388), testator bequeathed the See Trustees of Amherst College v. residue of his estate, to be divided Ritch, 91 Hun, 509; affd., 151 N. Y. among the executors in lieu of com- 282; Forster v. Winfield, 142 id. pensation for services. Held, they 327. Compare Clements v. Babeock, took in their character of executors; 26 Misc. 90; Peoples Trust Co. v. and one who failed to apply for let- Smith, 62 St. Rep. 104. §§ 745, 746. Administeation of Estate, Etc. 622 trolled and repelled by internal evidence and the circumstances of the case.-'^ Where the directions of the will are repugnant, e. g., where, after an absolute legacy of money, there was a subsequent direction to the executors to invest it for the support of the legatee, the two directions are inconsistent, and, therefore, void.^^ § 745. Legacy in lieu of dower — Legacies or devises are fre- quently given to the widow, in lieu of her dower right. In such case, the legatee has an election to accept or refuse the legacy or devise. In cases where the will does not declare, in express terms, that such legacy is in lieu of dower, difficult questions may arise as to whether the widow is put to her election. The general prin- ciple is well settled, that unless the testator has manifested his intention to deprive her of her dower, either by express words or by necessary implication, she cannot be deprived of it by a testa- mentary provision in her favor. It is held, indeed, that the claim of dower must be inconsistent with, or repugnant to, the provisions of the will, before an intention to bar the dower can be implied ; that, in other words, the claim cannot be resisted by implication, unless its allowance would disturb or disappoint the will.-'* § 746. To executor in lieu of commissions A provision made by the will for specific compensation to the executor, is declared by 12 De Witt V. Yates, 10 Johns. 156. plate, etc., In lieu of dower. Payment 13 Dorlaud v. Borland, 2 Barb. 63. of the annuity, " in lieu of dowai," 14 See Fuller v. Yates, 8 Paige, 328 ; was opposed by those interested in the Hawley v. James, 5 id. 318; Wood v. residuary estate, on the ground that Wood, id. 596; Sanford v. Jackson, 10 it was void. Held, that the misde- id. 266 ; Adsit v. Adsit, 2 Johns. Ch. scription of the legatee as testator's 451; Lupton V. Lupton, id. 614; Bab- wife did not avoid the legacy, as there cock V. Stoddard, 3 Sup. Ct. (T. & C.) was no ambiguity in respect to the 207; Fevre v. Toole, 84 N. Y. 95; person intended, and no fraud was Bullard v. Benson, 1 Dem. 486 ; Close practiced on the testator ; that the ex- T. Eldert, 30 App. Div. 338 ; Purdy v. pressed consideration, " in lieu of Purdy, 18 id. 310; Kimbel v. Kimbel, dower," though untrue and impos- 14 id. 570; Conner v. Watson, 1 id. sible, did not avoid the legacy, since 54; Gray v. Gray, 5 id. 132; Horst- no consideration was necessary to its mann v. Flege, 61 id. 518; Miller v. validity. As to what will be deemed Miller, 22 Misc. 582 ; Hopkins v. to be an acceptance of the bequest, see Cameron, 34 id. 688; Fenton v. Fen- Grout v. Cooper, 9 Hun, 326. As to ton, 35 id. 479 ; Matter of Grotian, id. contribution by parties benefited from 257 ; 30 id. 23 ; Duncklee v. Butler, widow's election to take or refuse pro- id. 58. Compare Nelson v. Brown, 144 vision, see Tehan v. Tehan, 83 Hun, N. Y. 384 ; Jurgens v. Rogge, 16 Misc. 368 ; Matter of Lawrence, 36 Misc. 100; Koezly v. Koezly, 31 id. 397. In 275; and s. c, 37 id. 702. See also Klein v. Hayek (5 Redf. 210), it ap- L. 1896, c. 547, § 181, as to when peared that the testator was divorced widow is deemed to have elected to from his wife, and though forbidden accept provision, in lieu of dower, to remarry, thereafter cohabited with Every provision for a widow, in lieu N. as his wife without a marriage, of dower, is forfeited in a ease in By his will, he gave to his " beloved which she would forfeit her dower, wife," N., all his household furniture, (L. 1896, c. 547, § 182.) 623 Administration of Estate, Etc. § 747. the statute^^ to be a full satisfaction for his services, in lieu of the commissions, unless he elects to renounce all claim to such specific legacy. He is not required to elect which he will accept, until he has suiRciently ascertained which will be the more advantageous. But to put him to his election, the language of the wiL should clearly indicate that the legacy was intended as a specific com- pensation for his services; if it does not, his right to charge com- missions is not defeated.-^® § 747. Legacies to creditors — The rule that a legacy to a creditor is a satisfaction of the debt, is subject to many exceptions. In general, a legacy implies a bounty, and not a payment.-^'' But one who accepts a bequest and is put to his election between the gift in the will and a claim against the estate, his acceptance of the former is a satisfaction of the latter; and it is immaterial whether what he takes turns out to be of greater or less value than that which he surrendered.^* The cases justify the following state- ment of doctrine on this subject : (1) A legacy is nf'ver deemed a satisfaction of a debt contracted after the date of the will. (2) It is not considered a payment, when the will contains an express direction that the debts and legacies shall be paid, such as " after all my debts and legacies are paid, then I give," etc., or words of like import.^® (3) Where the particular motive or purpose for which the legacy is stated in the will, e. g., as a token of -regard, or from ancient friendship, or from relationship, and the like, it will not be deemed a satisfaction of the debt. (4) Where the legacy is contingent and uncertain, or payable at a future time, or upon condition, it is not a satisfaction. (5) Where the legacy is less than the debt, or the debt is unliquidated, or in negotiable 15 Co. Civ. Proc, § 2731, amended 19 An express direction for the pay- 1895 (former § 2737). ment of all the testator's debts, rebuts 16 Matter of Mason, 98 N. Y. 527. the presumption that a legacy to a 17 Reynolds v. Robinson, 82 N. Y. creditor was intended as a aatisfac- 103 ; Smith v. Murray, 1 Dem. 34. In tion of the debt. ( Fort v. Gooding, 9 Adams v. Olin (21 Civ. Proc. Rep. Barb. 371.) See Boughton v. Flint, 5 227), a gift to the testator's wife in Abb. N. C. 215; 74 N. Y. 476. The lieu " of .all dower or other interest common-law right of a creditor of the in my property and estate," Held, not testator, appointed the executor of his to require the satisfaction of a debt, will, to pay himself first, if his debt from the husband to the wife for the is by specialty or of record, and his amount of her separate estate, held by right of retainer to that end, has been him for investment, especially where abolished in this State. (2 R. S. 88, the books of the testator indicated the § 33; Co. Civ. Proc, § 2719, former continuance of the obligation by en- § 2739.) See Williams v. Purdy, 6 tries made subsequent to the date of Paige, 166; Smith v. Kearney, 2 Barb, the will. See Matter of Sherman, 24 Ch. 533; Treat v. Fortune, 2 Bradf. Misc. 65; 53 N. Y. Supp. 376. 116; and mte, § 641. isCaulfield v. Sullivan, 85 N. Y. 153. § 748. Administeation of Estate, Etc. 624 paper, or in a current account, the debt is not satisfied. (6) Where the legacy is of a different nature from the debt, as where the testa- tor is indebted by bond, and he bequeaths an interest in land, it is not a satisfaction. (7) A specific legacy is never a satisfaction, unless expressly so declared by the will, and it is so accepted by the legatee.^" The general rule is that the effect of a legacy to testator's creditor is governed by testator's intent, and that an intention thereby to pay the debt must be either evidenced by the language of the provision or be fairly inferable from the circum- stances.^^ § 748. Legacies to debtors — A bequest by a creditor, to his debtor, of the amount of his debt is a forgiveness of the debt, or a specific legacy; it is not a pecuniary legacy.^^ The naming of a person executor in a will does not operate as a discharge or be- quest of any just claim which the testator had against the executor, but such claim must be included among the credits and effects of the deceased in the inventory, and the executor is liable for the same, as for so much money in his hands at the time the debt or demand becomes due.*^ 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, is declared by statute not to be valid as against the creditors of the deceased, but is to be construed only as a specific bequest of such debt or demand.^* If 20Willard on Exra. 366; Williams ject to deduction of the husband's v. Crary, 5 Cow. 370; 8 id. 246; 4 debt. (Clarke v. Bogardus, 12 Wend. Wend. 443; Clarke v. Bogardus, 12 67.) But a bequest to a daughter of Wend. 67. Compare Mulheran v. Gil- a mortgage given to secure her hus- lespie, id. 349. And see Eaton v. Ben- band's bond, will include the latter, ton, 2 Hill, 576. A legacy to the cred- (Klock v. Stevens, 20 Misc. 383.) iter's wife, and its acceptance, is not Compare Matter of Lee, 141 N. Y. an extinguishment. ( Mulheran v. Gil- 58. In Williams v. Crary (5 Cow. lespie, 12 Wend. 349.) 368), the will contained a provision 21 Sheldon v. Sheldon, 33 St. Rep. directing the executors to enter satis- 754; 11 N. Y. Supp. 477. In that faction of A.'s mortgage, and to cancel case, testator gave a legacy to his his bond, upon his paying $1,600. The wife expressly in lieu of dower. Held, bond and mortgage were for $4,000, not to cancel the wife's claim for and, including his current account moneys received by the testator, the against the testatrix, the balance due claim being wholly unliquidated at at her death was $1,600. Held, not the date of the will, and liable to be a legacy, but a proposition of settle- largely increased or diminished before ment, and that A., having paid the his death. See Van Slooten v. $1,600, could not recover on his ac- Wheeler, 50 St. Rep. 873. count. See Matter of Temple, 36 22Sholl V. Sholl, 5 Barb. 312. As Misc. 620. to the effect of a bequest to the 23 Co. Civ. Proc, § 2714, as amended obligor's wife, of the interest of a 1893; adopting 2 R. S. 84, § 13. bond which, by its terms, Vfas to bear 24 Co. Civ. Proc, § 2714, as amended no interest till after demand, see 1893. For the eommon-law rule, see Sweet V. Irish, 36 Barb. 467. A Rickets v. Livingston, 2 Johns. Cas. legacy to a debtor's wife is not sub- 97. The provision of the Revised 625 Administeation of Estate, Etc. § 749. there are sufficient assets to pay debts without it, it may be paid in the same manner and in like proportions as legacies of that kind. In any case, the intention to relinquish the debt must be clearly expressed in the will, or otherwise proven ;^^ the presump- tion is, that such was not the testator's intention.^* § 749. Legacy for life, with remainder over Questions some- times arise between a tenant for life and the remainderman, as to whether the bequest is general or specific. If it is specific, and the article bequeathed is necessarily perishable, such as household stores, the tenant for life takes it absolutely; where the articles are not necessarily consumed in the using, and there is no direc- tion to the executor to hold them in trust for the remainderman, the executor may deliver them, taking a receipt for them, recogniz- ing the remainder,^ unless there are special circumstances render- ing it hazardous to surrender the principal of the estate to the care of the life tenant without requiring security for the protection of the remainderman.^ But where there is a general bequest for life, with remainder over, although it includes articles which are consumed in the using, the whole must be sold by the executor, Statutes (§ 13) does not discharge a the property is Such that its use is lien upon real estate by which the debt its consumption, the gift will be is secured, or so affect it as to give deemed an absolute one, and a gift subsequent incumbrances priority of over would be void for repugnancy, lien; it merely adds to the original (Bell v. Warn, 4 Hun, 406.) A legacy obligation a liability to account, as to E., " for her use during her natural executor, for the debt; and until the life," entitles her to immediate pos- exeeutor, in the performance of his session. (Matter of Weppeler, 2 Dem. trust, has paid the amount of the debt, 626.) See Smith, v. Van Ostrand, 64 and thus discharged it, all liens by N. Y. 278. A legacy to a wife " dur- which it is secured remain in force, ing her lifetime for the support of (Soverhill v. Suydam, 59 N. Y. 140.) herself and children," remainder to 25 Clark V. Bogardus, 2 Bdw. 387; such children, goes to the wife. (Clark Stagg V. Beekman, id. 89. v. Leupp, 88 N. Y. 230 ; Smith v. Van 26 Matter of Leslie, 3 Redf. 280; Ostrand, 64 id. 278 ; Billar v. Loundes, Matter of Foster, 15 Misc. 175; 37 2 Dem. 590.) See Matter of Beyea, N. Y. Supp. 136. A direction that ad- 10 Misc. 198; Pell v. Polger, 68 Hun, vancements be not deducted from a 443. Compare Ketcham v. Ketcham, child's share, does not release a debt 66 id. 608; Matter of McCIure, 136 N. incurred subsequent to the execution Y. 238; Gross v. Mathewson, 34 Misc. of the will. (Rogers v. McGuire, 90 370; Baumgras v. Baumgras, 5 id. 8 ; Hun, 455.) Dwyer v. Wells, id. 18; Matter of 2T Spear v. Tinkham, 2 Barb. Ch. Geisler, 36 id. 750 ; Matter of Moehr- 211. Although a first legatee is au- ing, 154 N. Y. 423. thorized to consume the legacy, if 28Matter of Fernbaeher, 17 Abb. N. necessary for his subsistence, yet the C. 339; s. c. as Fernbacher v. Fern- right to make use of it for that pur- bacher, 4 Dem. 227. But the executors pose is rather in the nature of a power are grossly remiss in turning over the than an ownership, and a gift over, of principal to the life tenant without what the first legatee shall leave, is security, with knowledge of the lat- good. Where the gift to the first taker ter's purpose to appropriate it to her is absolute in its terms, or when the own use, and thereby destroy the in- use only of the property is given, and terests of the remaindermen. So held 40 §749. Administration of Estate, Etc. 626 and the interest or income only be paid to the legatee for life.^" Dividends upon stock owned by a testator which had been declai-ed at the time of testator's death, but which were payable subse- quently, are principal of the estate and do not go to a legatee who is "to receive the rents, interest, and income." The dividend to which a life tenant may be entitled as income can only be that which the company declares after that relation is acquired.^" It may be stated generally that one having a life interest has a right to call upon the trustee, from time to time, to disclose to him the nature and character of the property in his hands constitut- ing the trust fund ; to show its value ; the income derived there- from, and the expenses to which the trustee is subjected in its management, in order that he may be able in the future to watch and look after his own interests.^^ A remainder may be limited in proceedings to remoi'« executors for misconduct. { lb. ) In Matter of Lewis (23 N. Y. Supp. 287), the bequest was to trustees to pay the income to A. for life, and at A.'s death to pay the principal to a third person; the life beneficiary afterward purchased the interest of the remainderman. Held, that the life estate and the remainder were not thereby merged so as to en- title the life beneficiary to the posses- sion of the principal. 29 Covenhoven v. Shuler, 2 Paige, 122; Matter of Beyea, 10 Misc. 198. Compare Clark v. Clark, 8 Paige, 153 ; Cairns v. Chaubert, 9 id. 160. In the last case, a life estate in a toll-bridge, the franchise of which was limited to ii number of years, was held not to give the legatee all the tolls, but only such portion of them as would equal the interest of a capital equivalent to the cash value of the franchise at the time of the testator's death. And see Auburn Theological Seminary v. Cole, 20 Barb. 321; and the Same v. Kel- logg, 16 N. Y. 83; Bundy v. Bundy, 38 id. 410. As to what form of be- quest will raise a life estate by im- plication, see Doughty v. Stillwell, 1 Bradf. 300. Compare Minges v. Mathewson, 66 App. Div. 379 ; Kendall V. Case, 84 Hun, 124. 30 Matter of Kernochan, 104 N. Y. 618. Where such stock is sold by the executors at a, fixed price per share, and in addition thereto a sum is paid as being equivalent to a ratable pro- portion of accumulated profits in the hands of the company at the time of the death of the testator, such latter sum is to be considered as principal and not as income. In such ease, the ordinary rule which gives cash divi- dends, declared from accumulated earn- ings and profits, to the life tenant, should be applied, whether such ac- cumulated profits are earned before or after the death of the testator. The value of certain options or privileges given to stockholders by various com- panies to subscribe for and take at par a certain amovint of their stock and bonds, should be classed as prin- cipal and not as income. (lb.) See, generally, Matter of James, 146 N. Y. 78 ; Lowry v. Farmers' L. & T. Co., 56 App. Div. 408; Matter of Rogers, 161 N. Y. 108; Matter of Kane, 64 App. Div. 566 ; McLouth v. Hunt, 154 N. Y. 179 ; Monson v. New York Security, etc., Co., 140 id. 498; Stewart v. Phelps, 71 App. Div. 91; Cross t. Long Island Loan Co., 75 Hun, 533. siHaucox V. Wall, 28 Hun, 214. The authorities relating to the rights of life tenants and remaindermen re- spectively, are collated and discussed in Cragg v. Riggs (5 Redf. 82; 26 Hun, 90). See also Soovel v. Roose- velt (5 Redf. 121), where 5 per cent, governments were exchanged for 4 per cents. No deduction should be made from the income to make up the diminution in value of United States bonds purchased at a premium. (Mc- Louth V. Hunt, 154 N. Y. 179; Mat- ter of New York Life Ins. & Trust Co., 24 Misc. 71.) See Farwell v. Tweddle, 10 Abb. N. C. 94. See also' § 626, ante. Where the will directed the executors, as trustees, to retain the 627 Administbatioi^ of Estate, Etc. 749. upon a bequest of money as well as of other personal property, and the testator may confide the money to a legatee for life, trust- ing to such legatee to preserve the fund for the benefit of the re- mainderman; in which case, the legatee for life becomes trustee of the principal, during the continuance of the life estate.^^ He may, therefore, be compelled at the instance of the remainderman to give security for the legacy, or to submit to the appointment of a receiver, if it appears that his interests would otherwise be imperiled.^^ An executor may turn over the principal of the life estate to the life tenant, without exacting security, where such an intention on the part of the testator can be gleaned from the teyms of the will, unless there are circumstances rendering such a course perilous or unadvisable, but the tendency of the decisions is, that an executor should not turn over property to one who has simply a life estate therein without obtaining from such life tenant se- curity for the protection of the remainderman.^* stock of two banks, pay the income to testator's daughter during her life, and turn over the stock at her death to her issue, and an assessment was made upon the stockholders of one of the banks for the amount of their stock, — Held, that the stock in the other bank should be sold to pay the assessment, since the legatees took the bequest subject to incidental burdens. (Matter of Bull, 51 St. Eep. 558.) 32 Smith V. Van Ostrand, 64 N. Y. 278; Russell v. Hilton, 37 Misc. 642; 76 N. Y. Supp. 233. Where a fund is directed to be invested, and the in- terest, dividends, and income are to be applied to the use of the beneficiary for life, the profit realized upon the sale of stock, in which a portion of such sum is invested, does not belong to the life tenant as income, but must be added to the principal, of which he is entitled to the interest and income. (Whitney v. Phoenix, 4 Kedf. 180.) The legatee in remainder may call on the legatee for life for an inventory of the property. (Westcott v. Cady, 5 Johns. Ch. 334; De Peyster v. Clen- dening, 8 Paige, 295; Covenhoven v. Shuler, 2 id. 122; Matter of Hunt, 38 Misc. 30.) Compare Douglas v. Hazen, 8 App. Div. 25. 33 Washbon v. Cope, 22 N. Y. Supp. 241. As to requiring a bond from the life tenant, who is also the trustee, see Matter of Shipman, 53 Hun, 511; ante ^ 473 34 Tyson v. Blake, 22 N. Y. 563; Smith V. Van Ostrand, 64 id. 281 Livingston v. Murray, 68 id. 485 Montfort v. Montfort, 24 Hun, 120 Fernbacher v. Fernbacher, 4 Dem. 227 Matter of Lowery, 19 Misc. 83; Scott V. Scott, 6 id. 174; Matter of Eoffo, 51 App. Div. 35; Matter of McDougall, 141 N. Y. 21. Compare Matter of Ungrich, 48 App. Div. 594; Matter of Haskell, 19 Misc. 206. In Matter of Landa (N. Y. Law J., Jan. 30, 1891), the surrogate said : " It is the duty of the executors to exact a bond which will protect the persons who may eventually become entitled to the fund. These possible beneficiaries are of two classes: the possible appointees under the power contained in the will, and the residuary legatees who will become entitled to the fund in case of the failure of the donee of the power to exercise the same. It is, therefore, incumbent upon the executor to re- quire a bond to the full present value of the securities to be transferred. The present value of the securities ap- pears to exceed the original amount of the legacy, and the bond to be given should be on the- larger sum. The reason for this course is apparent. After giving a bond for the face of the legacy, the life tenant might dis- pose of the securities, appropriate the diflference, and the bond would be no adequate protection to the persons en- titled to receive the securities on the termination of the life estate. The provision in the decree releasing and §§ 750, 751. Administration of Estate, Etc. 628 ARTICLE SECOND. ADEMPTION AND SATISFACTION OF LEGACIES. § 750. Ademption defined. — "Ademption " and " satisfaction " are inaccurately used as synonyms ; but they are not, for each is descriptive of a distinct state of facts. When a testator devises or bequeaths specific property which he subsequently disposes of, or if the thing devised or bequeathed is not in existence at his death, the devise or legacy is adeemed or cut off.^^ But when a legatee, subsequently to the execution of the will, receives from the testator property in lieu of the devise or legacy, the devise or legacy is satisfied. ^^ The principle is applicable to a residuary legacy, where such appears to be the clear intent of the testator.^'^ §751. Ademption of specific legacies — Slibject to some qualifi- cations,^^ the general rule is, that in order to complete the title of the specific legatee to the thing given, it must be in such condition at the testator's death as described in his will. If the particular thing bequeathed has been sold or disposed of, there is complete extinction, and nothing remains to which the words of the will can apply. Whether the testator, by such disposition, intended an ademption, is immaterial,^^ though it is otherwise in the case of general legacies, for whether an advancement to the legatee shall be considered an ademption, or in substitution of a legacy given to him by the will, depends upon the intention of the testator.*" discharging the executors is improper the testator bequeathed, became insol- for the reason that it will be the duty vent, but renewed its capital under a of the executors, upon the termination special statute. Pursuant to the stat- of the life estate, to deliver and trans- ute, he filled up only a part of his fer the securities in which the fund stock, and suffered the remainder to may be invested to the persons en- be issued to others. Held, that the titled thereto, or, in case of their in- part he retained passed by the be- ability to do so, to prosecute the bond quest. (Havens v. Havens, 1 Sandf. given for their return." Ch. 324.) See Walton v. Walton, 7 35 Hosea v. Skinner, 32 Misc. 653, Johns. Ch. 258 ; Doughty v. Stillwell, Compare Matter of Andrews, 25 id. 72. 1 Bradf. 300. 36 Burnham v. Comfort, 37 Hun, 39 Beck v. McGillis, 9 Barb. 35. 216. 40Tillotson v. Race, 22 N. Y. 122. 37 Matter of Turfler, 23 N. Y. Supp. See Terrill v. Public Adm'r, 4 Bradf. 135. 245; Glover v. Glover, 47 St. Rep. 38 Thus there is no ademption of a 765. A legacy to a church or religious specific legacy where the alteration of corporation for the purpose of paying the fund was made by a mere act or off a debt is not adeemed by the re- operation of law, or where it was made duction of such debt by other means, without the testator's concurrence or except to the extent that subsequent authority, or fraudulently, or in breach subscriptions by testator have con- of trust, or, finally, where the testator tributed thereto. (Matter of Gasten, lends the thing, to be afterward re- 16 Misc. 125; 38 N. Y. Supp. 948.) turned. A corporation, stock in which 629 Administration of Estatk, Etc. § 752. It is also a general rule, that under a bequest of specific articles in the possession of the testator when he made the will, those only- pass which he then had ; but, on the other hand, if the testamentary words relate to the period of his death, the articles which were in his possession at that time will be included.*^ But if a specific legacy does not exist at the death of the testator, it is adeemed, notwithstanding the contrary intention of the testator or the hard- ship of the case. Thus, where the testator, having specifically be- queathed a bond and mortgage, foreclosed the mortgage and sold, and the purchaser gave him a new bond and mortgage for the price, and the testator left a memorandum declaring that the new mortgage was but a renewal of the one bequeathed, and that he intended it should pass to the legatee, it was, nevertheless, held that the legacy was adeemed.*^ If a testator, having devised land, sells the same before his death, the proceeds become personalty; and the court will not substitute the money received by testator for the land devised.*^ § 752. Demonstrative legacies — The question sometimes arises whether a bequest was intended by the testator to be paid at all events, the fund being pointed out by the way only of demonstra- tion. The leading principle is that when a testator bequeaths a sum of money, or, what is the same thing, a life annuity, in such a manner as to show a separate and independent intention that the money shall be paid to the legatee at all events, such inten- tion will not be permitted to be overruled merely by a direction in the will that the money is to be raised in a particular way or out of a particular fund ; although no positive rule of ready applica- tion to every case can be laid down. Each case will depend upon a consideration of all the material provisions of the will, and of the extrinsic circumstances respecting the testator's family and estate, which may be fairly brought to bear upon the question of intent.** *1 See ante, § 269. sis of ea,ses showing the course of de- 42 Beck V. McGillis, 9 Barb. 35. If eisions in this State in applying the the mortgage is paid during testator's doctrine of ademption in the cases of lifetime, the legacy is adeemed. { Aber- gifts of particular securities, as dis- nethy v. Caflin, 2 Dem. 341.) See tinguished from demonstrative legacies Gardner v. Printup, 2 Barb. 83; Gil- payable out of a particular fund. Christ V. Stevenson, 9 id. 9; Doughty 43 Phil son v. Moore, 23 Hun, 152. V. Stillwell, 1 Bradf. 300; Logan v. « Pierrepont v. Edwards, 24 How. Deshay, Clarke, 209; De Graaf v. Pr. 419; Giddings v. Seward, 16 K Cochrane, 21 App. Div. 381; Hopkins Y. 365. See ante, § 269 et seq., for V. Genraud, 30 Abb. N. C. 235. And general rules of construction of wills, see note to this case, giving a synop- § 753. Administeation of Estate, Etc. 630 § 753. Satisfaction of general legacies by advancements The doctrine of advancements, included in the Statute of Distribu- tions, applies only to cases of intestacy.*^ But courts of equity have always treated advancements, by way of portions, as a satis- faction of general legacies given by a parent, or other person stand- ing in loco parentis, to a child or grandchild.*® Such an advance- ment will be presumed to have been made in satisfaction of the legacy. ^'^ That such was the intention of the testator may be shown by parol evidence,*^ and even by his declarations, if made at the time of making the advancement, but not otherwise.** Deelara- 45 Thompson v. Carmichael, 3 Sandf . of Burdsall, 64 App. Div. 346. Ch. 120; Hays v. Hibbard, 3 Redf. 28. Whether or not a conveyance by a de- See post, tit. 8, art. 3 of this chapter, cedent, in his lifetime, to the wife cf 46 Story's Kq. Jur., §§ 1111, 1112; his son, was an advancement, is a 1 Roper on Leg. 374; 2 Wms. on Exrs. question of fact on all the evidence. 1143; Langdon v. Astor, 16 N. Y. 34; See Palmer v. Culbertson, 143 N. Y. Hine V. Hine, 39 Barb. 507; Benjamin 213. Unless the will so requires by v. Dimmick, 4 Redf. 7 ; Lawrence v. its terms or by necessary implication, Lindsay, 68 N. Y. 108. Compare interest is not to be charged against Stevens v. Stevens, 2 Redf. 265; Gil- advancements. (Matter of Keenan, 15 man v. Oilman, 63 N. Y. 41. A di- Misc. 368; 38 N. Y. Supp. 426; sub rectiou that all moneys or indebted- nom. Matter of Downing, 72 St. Rep. ness which should appear upon any 823.) inventory or ledger or book of account, 4" An advance to enable a legatee to kept by him or under his direction, engage in business is not within the charged as due to him from any or rule. ( Lockwood v. Lockwood, 3 Redf. either of his children, or from Robert 330.) As to advancement by way of College ( a corporation ) , and as out- a marriage portion, see Miller y. standing and unsettled accounts at the Coudert, 36 Misc. 43. time of his decease, should be con- 48 2 Whart. on Evid., § 1077 ; Palmer sidered as forming part of his estate, v. Culbertson, 143 N. Y. 213; 62 St. and that a discharge from such in- Rep. 104. debtedness by his executors should be 49 De Groff v. Terpenning, 14 Hun, deemed and taken as an equivalent to 301, and cases cited. Compare Phil- an equal amount paid to such child lips v. McCombs, 53 N. Y. 494. In or college on account of his or its Piper v. Barse (2 Redf. 19), it was share, was held valid in Robert v. held, that the burden was on the exec- Corning, 23 Hun, 299. See Matter utor to prove the satisfaction raised of Van Home, 25 Misc. 391. When a by him against the claim of the parent procures a third person to con- legatee. In Camp v. Camp ( 18 Hun, vey property to his child, for a con- 217), the testator, having before his sideration, moving from himself, the death advanced various sums to sev- presumption is that it is an advance- cral of his children, taking from each ment, equally as where he makes the a written receipt for the sums, " as conveyance himself. (Piper v. Barse, a part of my apportionment of his 2 Redf. 19.) The circumstance that estate," "to be deducted out of the he subsequently executed a codicil in estate," etc., by his will directed his which he made no reference to the executor to sell his real and personal legacy has no weight on the question, estate, and divide the proceeds equally (lb.) As to whether an advancement among his ten children, naming them, made in stocks, and charged on the Held, that as the will did not direct testator's books at an estimated value, the advances to be charged against may be regarded as a satisfaction, if the recipients, they were not to be the stocks were valueless at the time considered in dividing the estate, the charge was made, see Marsh v. Compare Matter of Bartlett, 4 Misc. Gilbert, 2 Redf. 465. See also Matter 380; Kinyon v. Kinyon, 6 id. 584. 631 Administration of Estate, Etc. § 753. tions made subsequently to the making of the advancement may, perhaps, be shown, to rebut the. presumption of satisfaction, and when this is done, similar evidence to the contrary will be allowed.^" The testator's books, wherein certain sums are directed to be taken from a child's portion as bequeathed to him by the will, are not 'per se evidence of advancements. The fact of advances must be proved by evidence aliunde, which, in connection with the books, would be sufficient for that purpose.®^ There is, however, no pre- sumption of satisfaction where the advancement depends upon a contingency, and the legacy is certain and absolute;'^ nor where the advancement is expressed to be in satisfaction of an interest to which the child is entitled otherwise than under the will, nor where the bequest to the child is of a residue or some portion of the residue,^^ in which case it is not regarded as a portion. And, clearly, a gift to a child will not be held to be an advancement when it expressly appears that the parent intended it should not be so considered.''* It has been decided, in England,^^ that there is no legal presumption that money advanced by a widowed mother to her child was intended as a gift, and not as a loan, such as there is in the case of a father ; because there is no such legal obligation upon her to support the child. Hence, the question is one of evi- dence in such case. The principle of ademption by subsequent portion has not been applied to devises of real estate.^® 50 3 Greenl. on Evid., § 366 ; 2 Statute of Wills ; such act amounted to Whart. on Evid., § 974 ; Hine v. Hine, an ademption of the gift of the several 39 Barb. 507; De Groff v. Terpenning, accounts. (Webster v. Gray, 54 Hun, supra. 113; 7 N. Y. Supp. 266.) A finding 51 Benjamin v. Dimmick, 4 Redf . 7 ; by the surrogate, that a gift of bonds Lawrence v. Lindsay, 68 N. Y. 108 ; by the testator in his lifetime was an s. c, on new trial, sub nom. Lawrence advance upon, and in part satisfaction V. Lawrence, 4 Redf. 278; Marsh v. of, a legacy, was sustained in Matter Brown, 18 Hun, 319. A provision in of Williams, 39 St. Eep. 815; 15 N. a will requiring advances made to a Y. Supp. 320. As to moneys ad- testator's children, as .shown by his vanced or debts contracted after the books, to be charged against them in execution of the will, see Rogers v. ascertaining their share, is rendered McGuire, 90 Hun, 455; Rogers v. ineflfeetual by a, subsequent entry in Rogers, 153 N. Y. 343. the books of a settlement of such ad- 52De Groflf v. , Terpenning, 14 Hun, ranees, with the intention of canceling 301 ; Arnold v. Haroun, 43 id. 278. and discharging the several accounts ; 53 Hays v. Hibbard, 3 Redf. 28. there being no force to the objection B4 Matter of Morgan, 104 N. Y. 74; that such act is equivalent to a change Matter of Munson, 25 Misc. 586. of the testamentary instrument and 55 Bennet v. Bennet, 40 Law T. (N. can only be evidenced by an instru- S.) 379. ment executed in accordance with the 56 2 Redf. on Wills, 441. §§ 754, 755. AoMimsTEATiOBT of Estate, Etc. 632 AKTICLE THIRD. abatement of legacies. § 754. Specific legacies — As a general rule, nothing can be abated from specific legacies because the estate of the testator turns out to be insufficient to pay the general legacies ; they are not sub- ject to abatement except for the payment of debts, funeral ex- penses or expenses of administration.^' It is the duty of executors to turn over specific legacies at the end of one year, with all the advantage that would have accrued to the legatees, had the prop- erty thus bequeathed been deliverable when the will took effect.^* But eases may arise, it seems, where even specific legacies (as where the testator directs that they shall come out of his personal estate, or where they are charged with the payment of general legacies) may also be subject to abatement.^® § 755. General legacies — Where there are sufficient assets to pay all the debts in full, and the specific legacies, but not enough to pay all the general legacies in full, the latter are subject to abate- ment between themselves. The common-law rule to this effect is declared by the Revised Statutes.®" In this connection, a distinc- tion is to be observed between legacies which are mere bovmties, and such as are given in consideration of a prior indebtedness by the testator to the legatee, or of the relinquishment of dower or for maintenance and education, etc. These latter do not, except as between themselves, so abate, but must be paid in full.®^ In the sense of its being a money bequest, a legacy may be a general one; but where it was given expressly for the maintenance and support of a person or persons standing in near relation to the testator, the latter will be deemed to have intended to give a prefer- ence to stich legacy over all others of a general character.®^ So, a 57 Taylor v. Dodd, 58 N. Y. 335. See 35 Misc. 560; 72 N. Y. Supp. 30. Corn- Matter of Tompkins, 9 Misc. 436. pare Matter of Spencer, 8 Misc. 193; ssBevan v. Cooper, 7 Hun, 117; 29 N. Y. Supp. 1083. revd. on a question of jurisdiction, 72 «1 Williamson v. Williamson, 6 jST. Y. 317; Taylor v. Dodd, 58 id. 335. Paige, 298; Waters v. Collins, 3 Dem. 59Pierrepont v. Edwards, 25 N. Y. 374, and cases infra. This rule does 128; Newton v. Stanley, 28 id. 61; not apply, however, where such lega- Giddings v. Seward. 16 id. 365. A tees are otherwise liberally provided legacy of a specified amount "in for. (Matter of Carr, 24 Misc. 143; government bonds" held a general 53 N. Y. Supp. 555.) legacy, payable in a certain manner, 62 Bliven v. Seymour, 88 N. Y. 469. and, therefore, subject to abatement in In Scofield v. Adams (12 Hun, 366), ease of deficiency. Matter of New- the testatrix, in addition to legacies to man. 4 Dem. 65 ; Tiift v. Porter, 8 N. others, gave to her husband the use of Y. 516.) See § 736, ante. certain .specific articles of furniture, 80 2 E. S. 90, § 45 ; Morse v. Tilden, and also the use or avails of $5,000, 633 Administeation of Estate, Etc. §§ 756-759. legacy for piety, for the erection of headstones at the graves of the testator's parents or other near relatives, does not abate ratably, r.nd should be paid in fuU.*^ § 766. Legacies to widow — A bequest to a widow is a general legacy, and, primarily, cannot be paid out of real estate, and, like other general legacies, will abate or fail where the personal prop- erty is insufficient.^* But a bequest given and accepted in lieu of dower must be paid in preference to other legacies, the widow being regarded as a purchaser for consideration.®^ The rule ap- plies notwithstanding the legacy exceeds in value the dower right relinquished. ®® § 757. Bequests to executor. — A legacy to the executor, as such, for his services in that relation, has no preference, however, over general legacies, and is subject to abatement with them, and an assignment of the legacy will not discharge it from abatement. ^'^ § 758. Residuary legacies. — A strictly residuary bequest must defer to all general legacies and annuities, and can only be paid after all such claims are satisfied. § 759. Testator's intention governs. — As to legacies which the testator intended should be paid in full and at all events, and which he has charged upon a particular fund or upon real estate, the general rule is that they are not subject to abatement with gen- eral legacies.^ There is no positive rule, it is said, for determin- ing whether a particular legacy is to be paid in full, at all events, with so much of the principal as (T. & C.) 207; McCorn v. MeCorn, should be necessary for his comforta- 100 N. Y. 511; Sanford v. Sanford, ble support. What remained on his 4 Hun, 753. decease was left to other parties. The SB Babcock v. Stoddard, 3 Sup. Ct. estate of the testatrix was insufficient (T. & C.) 207; Isenhart v. Brown, to pay the legacies, it having been sup- 1 Edw. Ch. 411; Brink v. Masterson, posed by her to be much larger than 4 Dem. 525; Dunning v. Dunning, 82 it was. Held, that though the legacy Hun, 463. A legacy of the income of to the husband was a general one, yet the residuary estate to testator's it was not subject to abatement, it widow in lieu of dower does not abate having been given for the maintenance as other legacies, and hence other re- and support of a near relation. But siduary legatees are not necessary par- where the beneficiary, though a near ties to her action to recover the legacy relative, was not dependent upon the of the executor. (Pittman v. Johnson, testator in his lifetime, the rule does 35 Hun, 38; 15 Abb. N. C. 472.) not apply. (Matter of Hinman, 32 66 Matter of Brooks. 30 St. Rep. 941 ; Misc. 536.) In Petrie v. Petrie (7 10 N. Y. Supp. 20; Matter of McKay, Lans. 90), a legacy for education was 5 Misc. 123. declared to be preferred to general 67 Clapp v. Meserole, 1 Abb. Ct. App. legacies. Dee. 362. 63 Wood v. Vandenburgh, 6 Paige, 68 Pierrepont v. Edwards, 25 N. Y. 277. 128; 24 How. Pr. 419. See Morse v. 64 Babcock v. Stoddard, 3 Sup. Ct. Tilden, 35 Misc. 560. §§ 760, 761. Administration of Estate, Etc. 634 or whether, in case the estate is insufficient to pay all, it shall abate in proportion to others. Each case will depend upon a con- sideration of all the material provisions of the will to be construed, and of the extrinsic circumstances which bear upon the question of intent.*' The mere fact that a legacy is given by a codicil does not entitle it to a preference over other general legacies ; nor will the fact that the amount is given for a specific purpose which can- not be accomplished by a lesser payment, indicate an intention that it shall not be subject to abatement with other general lega- cies.™ § 760. Order of abatement. — In the absence of any express di- rection in the will giving a priority of payment of a particular legacy, any deficiency of assets is to be charged in the following order: (1) Residuary legacies. (2) General legacies.'^^ (3) Legacies given for a valuable consideration, or for the relinquish- ment of dower or some right or interest. (4) Specific and demon- strative legacies. § 761. liability of legatee to refund or contribute. — At common law, a legatee who had received his legacy might be compelled, at the suit of the executor, to refund the legacy where, after pay- ment, debts appeared, of which he had no previous notice, and which he was obliged to discharge.^^ The statute provides a similar remedy to the creditor, directly against the legatee, etc.''' So, on 69 Wliere a will provided for the each, to five separate seta of grand- conversion of the bulk of the estate children. The estate proving insuiJi- into money and the payment of the eient to satisfy all of them, and a various legacies therewith, most of belief on the part of the testatrix be- which were not to be paid before the ing indicated that it would be suffi- expiration of two years after the pro- eient, — Held, that no one set of lega- bate of the will, but some were ex- tees had a preference, since among a cepted from this restriction, and the group of general legacies which are latter were paid in full — the execu- mere bounties, priority will not be tors having reason to believe that the given to any, unless the intention to estate would suffice to pay all in full, create a preference is most clearly and which proved not to be the case owing unequivocally expressed, to the subsequent depreciation in its TO Wetmore v. St. Luke's Hospital, value,— Held, that the preference of 56 Hun, 313; 9 N. Y. Supp. 753. the legacies last mentioned extended Tl See Lyons v. Steinhardt, 37 Misc. only to the time of payment, and that 628; 76 N. Y. Supp. 241. they were to abate, pro rata, with the ^2 The surrogate has no power to other legacies. (Harvard College v. compel a legatee to restore an over- Quinn, 3 Redf. 521.) In Matter of payment, but the executor should re- Williams (27 Misc. 716; 59 N. Y. sort to an action. (Matter of Lang, Supp. 606), the testatrix, who gave 144 N. Y. 275.) the estate to executors in trust, di- 73 Co. Civ. Proc, § 1837, which pro- rected a sale thereof upon the death vides that " an action may be main- of her husband, and the payment of tained, as prescribed in this article, the " following respective bequests in against the surviving husband or wife the order named in this my will," of a decedent, and the next of kin of which were five bequests of $2,000 an intestate, or the next of kin or 635 Administbation of Estate, Etc. § T62. a deficiency of assets, one legatee who has received his legacy is liable at the suit of another legatee, who has not been paid, to re- fund a proportionable part to make up the deficiency; although, if the deficiency has been caused by the waste of the executor, it is said that the legatee*who has been. paid may retain the advantage he has gained by his superior diligence, as against his co-legatee.^* But this rule does not apply as between general and residuary legatees.''^ § 762. Contributing to share of post-testamentary child, etc Express provision is made by the statute^® for an action by a child, born after the making of a will, who is entitled to succeed to a part of the property of the testator, or by a subscribing witness''^ to a will, who is also entitled to succeed to a share, against the legatees or devisees, as the ease requires, to recover his share of the property; "and he is subject to the same liabilities, and has the same rights, and is entitled to the same remedies, to compel a distribution or partition of the property, or a contribution from other persons interested in the estate, or to gain possession of the property, as any other person who is so entitled to succeed." The design of the statute, in reference to posthumous children, was to give them the same portion precisely as they would have if the parent had died intestate ; and where the children are the devisees, the object of the statute can only be accomplished by requiring each to contribute, in proportion to his devise, to make up such share of the property as would have gone to the after-born in case of intestacy, and subjecting each devise to the same burdens as the after-born, in proportion to the estate held — i. e., to contribute proportionally toward the payment of any claim against the de- ceased, to enforce which, proceedings are taken against the dev- isees and heirs, in default of personal property.''* legatees of a testator, to recover, to 74 Lupton v. Lupton, 2 Johns. Ch. the extent of the assets paid or dis- 614; Mills v. Smith, 141 N. Y. 256; 57 tributed to them, for a debt of the St. Rep. 388. Compare Buffalo Loan, decedent, upon which an action might etc., Co. v. Leonard, 154 N. Y. 141. have been maintained against the ex- 75 Gilbert v. Taylor, 76 Hun, 92 ; ecutor or administrator. The neglect affd., 148 N. Y. 298 ; Mills v. Smith, of the creditor to present his claim to 141 id. 256; 57 St. Rep. 388. Residu- the executor or administrator, within ary legatees are liable to refund if the time prescribed by law for that there proves to be a deficiency of as- purpose, does not impair his right to sets ( in case they have been paid with- maintain such an action." Actions of out decree), but, in the absence of this class are regulated by sections fraud or collusion, they take the pay- 1837-1860. See Howell v. Wallace, ment without other risk. (lb.) 37 App. Div. 323 ; Mertens v. Roche, 76 Co. Civ. Proc, S 1868. 39 id. 398 ; Siegel v. Cohen, 23 Misc. 77 See Matter of Smith, 1 Tuck. 83. 365. It is beyond the scope of this 78 Rockwell v. Geery, 4 Hun, 607. work to present this subject further. The rule as to the mode of determin- §§ 763, 764. Administration of Estate, Etc. 636 ARTICLE FOUETH. LAPSE OF LEGACIES. § 763. Death of legatee prior to testator's death The cominon- law rule, that the legacy is extinguished by the death of the legatee before the testator's death, was modified by the Revised Statutes, so that now, when the devisee or legatee is a child or other de- scendant of the testator, and such legatee or devisee dies during the testator's lifetime, leaving a child or other descendant who survives the testator, the devise or legacy does not lapse, but the property vests in the surviving child or other descendant of the legatee or devisee, as if the devisee or legatee had survived the testator, and had died intestate.™ It will be observed that the statute provides only for the case of a testator who is the ancestor of his legatee or devisee. The word descendant is limited to issue, in any degree, of the person referred to, and does not, therefore, embrace collateral relations.*" Hence, a bequest to a person, not a descendant, though to him " and his heirs," lapses on such per- son's death before the testator ; the words " and his heirs " being words of limitation, and not of substitution.*^ § 764. Death prior to execution of will. — In view of the reme- dial character of the statute, the courts have given its provisions a liberal construction, and the words " shall die," in the statute, have been construed as not referring to a time intermediate the making of the will and the death of the testator, and hence that ing the share of a post-testamentary tain nephews and nieces, several of child in the estate of his deceased whom died in her lifetime, some leav- parent is discussed in Sanford v. ing children and others without issue. Sanford, 4 Hun, 753. In estimating Held, that the shares of all those dev- the amount of the several contribu- isees so dying before her lapsed, and tions, even a legacy to the widow, in that such shares descended to her lieu of dower, must be taken into ac- heirs-at-law. See Hamlin v. Osgood, count. (Mitchell v. Blain, 5 Paige, 1 Eedf. 409; Bishop v. Bishop, 4 Hill, 588.) See Sanford v. Sanford, 5 Lans. 138; Christie v. Phyfe, 22 Barb. 195; 486; s. c, 61 Barb. 293. Armstrong v. Moran, 1 Bradf. 314. A ™ 2 E. S. 66, § 52 ; Vernon v. Ver- bequest to a charitable home, to care non, 53 N. Y . 351; Savage v. Burn- for the wife of the testator and re- ham, 17 id. 561, 575; Matter of Wells, tain the residue after her death, — 113 id. 396; Cruikshank v. Home for Held to fail, the wife dying before the the Friendless, id. 338; Matter of Haf- will took effect. (Matter of Dempsey, ner, 45 App. Div. 549; 61 N. Y. Supp. 25 Misc. 257; 55 N. Y. Supp. 427.) 565. 81 Kimball v. Chappel, 27 Abb. N. 80 Van Buren v. Dash, 30 N. Y. C. 437 ; 18 N. Y. Supp. 30. See Mat-. 393. In that ease, the testatrix de- ter of Wells, 113 N. Y. 396; Bolles v. vised separate aliquot shares of her Bacon, 3 Dem. 43, and cases cited, real estate to two sisters and to cer- 637 Administration of Estate, Etc. §§ 765, 766. the statute would apply to the case of the death of a proposed lega- tee (if a descendant), before the date of making the will.®^ § 765. Death of legatee subsequent to testator's death. — Unless the intention of the testator was to the contrary, a legacy vests on the testator's death, though not payable until one year thereafter; and hence the legatee's death within the year does not affect a lapse, but his interest passes to his personal representatives.^^ So, too, where a sum of money is directed to be held in trust, the in- come to be paid to the beneficiary until the happening of certain event, remainder over, no lapse will be effected by the death of the beneficiary before the event takes place.®* If the legatee acquires only a contingent interest, his death before the happening of the contingency, even after the death of the testator, will effect a lapse of the legacy. The distinction between a vested and contingent legacy, which is mainly important as bearing on the question of lapse, has been already considered. § 766. Lapse of joint legacies — Where a legacy is given to two or more persons jointly, if one dies, even in the lifetime of the testator, such interest does not lapse, but the survivor will take 82 Barnes v. Huson, 60 Barb. 598. " Where the proposed devisee or lega- tee, being a descendant of the testator, had died before the testator, leaving lienal descendants, who were, of course, equally the descendants of the testa- tor, the presumption is strong that, except for ignorance, inadvertence, or accident, the will would have been so altered as to continue the designed provision in the line which had been intended. Therefore, the Legislature designed to provide a remedy in such a case, against the consequences of such ignorance, inadvertence, or acci- dent, by enacting, that in case the pro- posed devisee or legatee, who had died before the testator, was a child, or other descendant of the testator, then the issue of such proposed devisee or legatee should take in his place. No reason can be perceived for any dif- ferent rule, whether the death happen before or after the making of the will ; either occurrence is entirely within the mischief intended to be remedied." (lb., per Talcott, J.) In Matter of Howard (3 Misc. 170; 23 N. Y. Supp. 836), testator bequeathed the residue of his estate, after giving the income to his widow for life, to " my sisters, and to their heirs and assigns;" the children to take the same share that their parents would have received if living at the decease of the wife. Held, that the members of each class must be ascertained as of the date of the determination of the life estate, and that a son of one of the testator's sisters, who had died before the exe- cution of the will, was entitled to the share his mother would have taken, had she been living at the widow's death. See Westcott v. Higgins, 42 App. Div. 69; 58 N. Y. Supp. 938. 83 See Owens v. Owens, 64 App. Div. 212; 71 N. Y. Supp. 1108; Matter of Gardner, 140 N. Y. 122; 55 St. Rep. 299. Where a legacy is directed to be paid at a certain time after testator's death, with limitation over in case of legatee's death before payment, the limitation does not take effect if the legatee lives to become entitled to it, although payment has not been made. (Finley v. Bent, 95 N. Y. 364.) 84 Montanye v. Montanye, 29 App. Div. 377. Compare Southgate v. Con- tinental Trust Co., 36 Misc. 415. The court will seize upon any expression in a will to prevent the disinheritance of the issue of the primary object of the gift in the event of the death of that object before the period for dis- tribution. (Shangle v. Hallock, 6 App. Div. 55; 39 N. Y. Supp. 619.) §§ 767, 768. Administration of Estate, Etc. 638 the whole.^^ So, too, where, for any cause, any one of the legatees is disqualified to take his share, e. g., because he is a witness to the execution of the will, the testator does not die intestate as to that share, but the same passes to the remaining legatees, ,as a class.*® But in the case of a bequest to several legatees named, " equally, share and share alike," the legatees are tenants in common, and the share of any one happening to die before the testator lapses for the benefit of the testator's next of kin.*^ § 767. lapse of prior estate. — Where the bequest depends upon an intervening estate under the will, and is thus made to take effect only at the termination of the prior estate, and the prior estate lapses by the death of the legatee or devisee during the life of the testator, this will not defeat the estate over, but it will take effect immediately.** In such a case, both estates vest at the same time, and if both devisees survive the testator, the estate in remainder will not fail by the devisee in remainder dying before the tenant for life.*^ Where both legatees survive the testator, but both die during the prior estate, the legacy over is defeated, and, as against the next of kin of the latter legatee, the estate over goes to the testator's next of kin.®" A legacy to " W., or to his heirs," upon the death of a life tenant, vests in the next of kin upon W.'s death, — the word " or " preventing the lapsing of the legacy.^^ § 768. lapse of legacy to a debtor or creditor — As we have seen, where the intention of the testator was that a legacy to his debtor should be deemed a satisfaction of the debt, the acceptance of the 85 Gardner v. Printup, 2 Barb. 83; Dlv. 199; 50 N. Y. Supp. 1079; affd., Hoppock V. Tucker, 3 Sup. Ct. (T. & 163 N. Y. 578; Matter of Riches, 37 C.) 653; 1 Hun, 132; affd., 59 N. Y. Misc. 464; Hart v. Marks, 4 Bradf. 202 ; Matter of Keenan, 15 Misc. 368 ; 161; McLoskey v. Raid, 4 id. 334; 38 N. Y. Supp. 426. The principle of Floyd v. Barker, 1 Paige, 480 ; Matter survivorsliip, as applied to legacies, is of Howard, 5 'Misc. 293. See Wey- stated in Everitt v. Everitt, 29 N. Y. man v. Ringold, 1 Bradf. 40 ; Down- 39. Compare Fisher v. Banta, 66 id. ing v. Marshall, 1 Abb. Ct. App. Dec. 468. For cases of gift held made to 525; Embury v. Sheldon, 68 N. Y. a class, or otherwise, see Matter of 227 ; 2 Abb. N. C. 404. Baer, 147 N. Y. 348; Matter of Rus- 88 See Norris v. Beyea, 13 N. Y. sell, 168 id. 169; Matter of Watts, 68 273; Taylor v. Wendel, 4 Bradf. 324; App. Div. 357; Matter of Collins, McLean v. Freeman, 9 Hun, 247. 70 Hun, 273 ; Bisson v. West Shore R. 89 Terrill v. Public Adm'r, 4 Bradf. Co., 66 id. 604; Matter of Merriman, 245; Barker v. Woods, 1 Sandf. Ch. 91 id. 120; Eckert v. Wilklow, 26 129. See Conklin v. Moore, 2 Bradf. Misc. 294; Dougherty v. Thompson, 179; Anthony v. Brouwer, 31 How. 27 id. 738 ; Matter of Munter, 19 id. Pr. 128 ; Adams v. Beekman, 1 Paige, 201 ; Smith v. Lansing, 24 id. 566. 631. 86 Martineau v. Simonson, 59 App. «> Williams v. Seaman, 3 Redf . 148. Div. 100; 69 N. Y. Supp. 185. 91 McCormick v. Burke, 2 Dem. 137, 8T Matter of Kimberly, 150 N. Y. and cases cited. 00; Hornberger v. Miller, 28 App. 639 Administration of Estate, Etc. § 769. legacy will satisfy the debt. If a creditor dies before the testator, and the personal representative of the creditor accepts a legacy, a contract is completed, by which the latter becomes entitled to the legacy, not as a bounty, but as the purchase price of the claim which was thereby canceled or abandoned."" § 769. Effect of lapse. — Where a legacy lapses, it falls into the residuum unless it is expressly excluded therefrom."^ In case there is no residuary bequest, it goes to the next of kin, as estate undis- posed of by the will.®* If the remainder itself lapses, it also goes to the next of kin, including life tenants upon whose death, with- out issue, the remainder was limited.®^ In the case of a devise of real property failing, whether because it was originally void or because the devisee is incompetent to take, the common-law rule is, that the property goes, not to the residuary devisees, but to the heirs of the testator f^ but since the Revised Statutes has changed the rule that a will pf land speaks as of its date, the rule as to lapsed devises is changed also, and such devises now fall into the residuum.®^ In respect to lapsed legacies, or those which for any reason fail of execution, the will is to be considered the same as though it gave no such legacies; they do not constitute a fund separate and apart from the rest of the estate, to which the residuary legatees are entitled in any event, and notwithstanding the fact that the assets are insulBcient to pay the debts and the general legacies. Until the general legacies have been satisfied, nothing can be devoted to the residuary legatees.®* 92 Cole V. Niles, 3 Hun, 326; 5 Sup. supra; Matter of Whiting, 33 Misc. Ct. (T. & C.) 451; aflfd., 62 N. Y. 636. 274. See Lyons v. Mahan, 1 Dem. 180; 95Doane v. Mercantile Trust Co., Eauchfuss v. Rauchfuss, 2 id. 271 ; 160 N. Y. 494. Williams v. Crary, 4 Wend. 444. 98 Van Kleeck v. Dutch Church, 20 93 Oilman v. Oilman, 111 N. Y. 265; Wend. 498. Matter of Grossman, 113 id. 503; 23 97 Cruikshank v. Home for the St. Rep. 259; Matter of Hodgman, 69 Friendless, 113 N. Y. 337; 22 St. Rep. Hun, 484; affd., 140 N. Y. 421; Mat- 738; Moffett v. Elmeudorf, 152 N. Y. ter of Bonnet, 46 Hun, 529; aflfd., 113 475; Matter of Allen, 151 id. 243; N. Y. 522; Wetmore v. Peek, 66 How. Youngs v. Youngs, 45 id. 254; Hi'lis Pr. 54; Kimball v. Chappel, 27 Abb. v. Hillis, 16 Hun, 76; Adams v. Ander- N. C. 437; Matter of Champion, 39 son, 23 Misc. 705; 53 N. Y. Supp. 141. St. Rep. 400; 15 N. Y. Supp. 768; See Downing v. Marshall, 23 N. Y. Carter v. Board of Education, 144 366 ; Leslie v. Marshall, 31 Barb. 560; K Y. 621; 64 St. Rep. 218; Matter of Gallavan v. Gallavan, 57 App. Div. Howard, 3 Misc. 170; Spencer v. De 320; 68 N. Y. Supp. 30. For a case Witt C. Hay, etc., Assn., 36 id. 393 ; of the lapse of a conditional devise, Newcomb v. Newcomb, 33 Misc. 191 ; see Ditmas v. Baas, 50 St. Rep 632 V. 8. Trust Co. v. Black, 146 N. Y. 1. 9S Wetmore v. St. Luke's Hospital^ 94 Armstrong v. Moran, 1 Bradf. 56 Hun, 313; 9 N. Y. Supp. 753. See 314. See Brown v. Richter, 25 App. Matter of Whiting. 33 Misc. 274 Div. 239; 49 N. Y. Supp. 368; Spen- Compare Matter of Botsford, 37 App! cer V. De Witt C. Hay, etc., Assn., Div. 73; 55 N. Y. Supp. 495. §§ 770-772. Administration of Estate, Etc. 640 § 770. Legacies charged on land — Unlike bequests payable out of the personal estate, legacies charged on land lapse on the death of the legatee iefore payment^ unless payment is deferred to ac- commodate the estate, and not out of regard to the condition or circumstances of the legatee.®* AETICLE FIFTH. PEOCEEDINGS TO COMPEL PAYMENT OF LEGACIES. § 771. Executor's assent to legacy — Though title to a legacy passes by the will, yet it does not become perfected at law, until after the assent of the executor, from whom only possession of the legacy can be obtained. He has a right to the possession of the whole of the estate for the purpose of applying it, in the first place, to the payment of debts ; and a legatee cannot, therefore, take the thing bequeathed, without the assent, expressed or implied, of the executor,^ though his assent may be compelled, if wrongfully refused. § 772. When legacies are payable — At common law, a legacy was due on the expiration of one year after the death of the testa- tor ; but the statute declares that " no legacy shall be paid by any executor or administrator until after the expiration of one year from the time of granting letters testamentary or of administra- tion, unless directed by the will to be paid sooner." ^ The manifest 89 Marsh v. Wheeler, 2 Edw. 163 ; statute is inapplicable to the case of Harris v. Fly, 7 Paige, 429 ; Birdsall a legacy given by the execution of a V. Hewlett, 1 id. 32, in which case power of appointment contained in the Chancellor Walworth said he was not will. (Dixon v. Storm, 5 Redf. 419.) aware that the rule stated had ever The words " letters testamentary " or been extended to a case where the es- of " administration " include tempo- tate was devised to a stranger, upon rary letters, so that, where such let- the express condition that he paid the ters have been granted, pending the legacy charged thereon. See also probate proceedings, interest on a Sweet v. Ohase, 2 N. Y. 73; Loder v. legacy begins to run one year after Hatfield, 71 N. Y. 92 ; Hillis v. Hillis, the date of the issue of such letters. 16 Hun, 76. (Matter of McGowan, 124 N. Y. 526.) iTole V. Hardy, 6 Cow. 333; Hud- In Matter of Patterson (5 Misc. 178), son V. Keeve, 1 Barb. 89. See Matter decedent left two wills, one dated of Pye, 18 App. Div. 306; 46 N. Y. April 18, 1888, and the other dated Supp. 350. The assent of the execu- April 19, 1888. The first will named tors, once given to a specific legacy, different executors from those named vests the interest at law irrevocably in the second will. It was admitted in the legatee. (Onondaga Trust & to probate, and all the legacies but Deposit Co. v. Price, 87 N. Y. 542.) petitioner's were paid out under it To the same effect, Linthicum v. Cas- (being identical with those contained well, 19 App. Div. 541; 46 N. Y. Supp. in the second will). Subsequently 610; afFd., 160 N. Y. 702. the probate of the first will was re- 2 Co. Civ. Proc, § 2721, as amended voked and the will of April 19, 1888, 1893; adopting 2 R. S. 90, § 43. This admitted to probate. Letters were 641 Administration of Estate, Etc. § 773. object of the statute is to give the representative a specified time to reduce the estate to possession and turn it into money, to ascer- tain and liquidate the claims of creditors, and to await the expi- ration of the year allov/ed, after 'probate, to persons interested, to present a petition for the revocation of the probate, on allegations.^ After the expiration of the year, the executor must discharge the specific legacies and pay the general legacies, if there be assets; and if there be not sufiicient assets, then an abatement of the gen- eral legacies must be made in equal proportions.* § 773. Voluntary anticipation of payment. — Although the stat- ute is in form prohibitory, it is not regarded as making it illegal and a breach of trust to anticipate payment, but only as negativing the right of the claimant, and as throwing upon the executor, if such payments are made during the year, the peril of making good the deficiency, in case the assets are found insufficient for the de- mands which prove to be entitled to prior satisfaction. It is not uncommon, where the assets are ample, and there is no practi- cal doubt of the justice of such a course, to deliver specific lega- cies, and pay a portion or all of the legacies, and a portion of dis- tributive shares in advance of the period thus limited. But an executor who withdraws productive funds, in order to pay legacies before they become due, is chargeable with the loss thus occasioned to the residuary estate, that is, the interest which might have been earned.^ An executor who advances to legatees from his own funds is entitled to be subrogated to their rights, but he can be cred- ited only with their fro rata share of the assets available for dis- tribution at the time of the accounting.* He cannot, as trustee, advance to a beneficiary any money in anticipation of income, issued under the first will on July petitioner claimed his legacy. Held, on 26, 1888, which were afterward re- the authority of Matter of McGowan voked. Letters under the second {supra), that petitioner was only en- will were issued on May 26, 1892. titled to interest from the year after Petitioner claimed interest from July the grant of letters on the last will. 26. 1889, one year after issuance of " If the other legacies were paid pre- letters under the first will, on the maturely, that is a matter between . ground that the other legacies were them and the residuary legatees, and all paid at that time, and have, there- does not warrant a departure from the fore, had the benefit of subsequent in- rule in this instance." terest or use, the petitioner's legacy 3 Co. Civ. Proc, § 2647. See § 276 not being paid then because he was et seq., ante. an infant. Respondent claimed that * Co. Civ. Proc, § 2721, as amended interest should only be allowed from 1893; adopting 2 R. S. 90, § 45. one year from the issuance of letters 5 McLoskey v. Reid, 4 Bradf . 334. under the second will, the only one STickel v. Quinn, 1 Dem. 425. See now in force, under which the exeeu- Matter of Rogers, 10 App. Div. 593; tors were acting, and under which the 42 N. Y. Supp. 133. 41 §§ 774, 775. Administration of Estate, Etc. 642 when there is no income in his hands, and reimburse himself there- after out of subsequently accrued income.^ § 774. Liability and remedy of executor for erroneous payment of legacy. — An executor who voluntarily overpays a legatee, or pays a void legacy, is, of course, bound to make the estate good for the amount so erroneously paid. The general rule is, that where an executor volunteers to pay the whole or any portion of a legacy, and it subsequently turns out that the assets are not sufficient to justify a payment to that extent, the loss m.ust fall on him, and he cannot compel the legatee to refund.* But it is held that this rule does not apply to a case where the payment is not made volun- tarily and upon the assumption that there are assets sufficient, which assumption turns out to be erroneous. Where the will di- rects a legacy to be paid, and the executor has no reason to believe that it is, for any reason, a void legacy, he does nothing more than his duty in paying it, and will be protected in so doing; a remedy at law against the legatee being given him for a refund of the amount paid.® The sole remedy of the executor, in such a case, or in a case where he has overpaid a legatee, is by an action. The Surrogate's Court has no power, where it is found, on the executor's accounting, that he has overpaid a legatee, to render an affirmative judgment for the excess.** When the fact of overpay- ment is determined, the excess is, in contemplation of law, in the hands of the accounting executor, and the fact thus found should be conclusive in any further litigation between the executor and the legatee, when it comes in question.** § 775. legacies directed by will to be paid within the year. — If the will directs that a legacy be paid before the lapse of a year from the issue of letters, the executor may reqtiire, as a condition of payment, a bond, with two sufficient sureties, conditioned that 7 Matter of Odell, 1 Connoly, 91. recover the same, see Haviland v. Wil- 8 Matter of Hodgman, 140 N. Y. lets, 141 N. Y. 35. See also Matter of 421; 55 St. Eep. 800. An overpay- Tatum, 34 Misc. 25. ment to some of the legatees of a 9 Carter v. Board of Education, 68 class, the estate not sufficing to pay Hun, 435. all in full, is made at the risk of the lo Matter of Lang, 144 N. Y. 275 ; executor, and he cannot compel the 63 St. Rep. 694 ; Johnson v. Weir, 34 others to wait until he shall have re- Misc. 683; 70 N. Y. Supp. 1020. covered back the excess of payments, n Matter of Underhill, 117 N. Y. but is personally liable to them for 471; 27 St. Rep. 720. It seems that, their share. (Matter of Robertson, 51 by virtue of his power to direct and App. Div. 117; 64 N. Y. Supp. 385; control the conduct of executors, the affd., 165 N. Y. 675.) As to an action surrogate can direct the collection of by one of the next of kin, to set aside the debt from the legatee by action, a release of his interest in a lapsed (lb.) legacy, paid by the executor, and to 643 Administration of Estate, Etc. § 776. if any debts against the deceased shall duly appear, and there are not other assets to pay the same, and no other assets sufficient to pay other legacies, then the legatee shall refund the legacy so paid, or such ratable portion thereof, with the other legatees, as may be necessary for the payment of the said debts, and the pro- portional parts of such other legacies, if there be any, and the costs and charges incurred by reason of the payment to such lega- tee ; and that if the probate of the will be revoked, or the will de- clared void, then that the legatee shall refund the whole legacy, with interest.-'^ It is suggested that, where the will directs the pay- ment of one legacy before another, and it is not made preferential, the executor should not pay the first legacy in full when due, even after the year, if a deficiency of assets appears probable, without requiring a bond for repayment, as in the case of a legacy paid within the year.''' § 776. Interest on general legacies. — As the statute, above cited, prohibits the payment of legacies until a year after the granting of letters, the general rule is, that interest upon legacies is not payable until the principal of the legacy becomes due. If, in any ease, interest is allowed before that time, without a specific direc- tion in the will, it constitutes an exception to the rule, and is founded generally upon certain facts which the courts have agreed are equivalent to an express direction in the will to pay interest, because, from such facts, the courts will presume an intention on the part of the testator to have it paid.-'* Such a case is where the 12 Co. Civ. Proc, § 2721, as amended General Term in Matter of Prior (32 1893; adopting 2 R. S. 90, § 44. St. Eep. 712; 10 N. Y. Supp. 861). 13 Harvard College v. Quinn, 3 Eedf. In Kerr v. Dougherty (17 Hun, 341), 514. See Matter of Williams, 27 the General Term had held, in effect. Misc. 716; 59 N. Y. Supp. 606. that interest only began to run from 14 Per Peokham, J., Thorn v. Garner, a year after the grant of letters. 113 N. Y. 198; citing Bradner v. (Affd., 79 .K Y. 327, without discus- Faulkner, 12 id. 472; Cooke v. Meeker, sion of this question.) Referring to 36 id. 18 ; Brown v. Knapp, 79 id. this case, the court, in the McGowan 136; Goodwin v. Crooks, 58 App. Div. case, said: "While it is probably 464 ; 69 N. Y. Supp. 578 ; Matter of true that, in no other ease, has this McGowan, 124 N. Y. 526; s. c. below, court been required to pass on the sill) nom. Matter of Wallace, 32 St. question, still the effect of the statute Eep. 226; 24 id. 405, expressly over- in that respect has been commented ruling surrogates' decisions in Carr v. on so frequently as to leave no room Bennett, 3 Dem. 459 ; Duntan v. Car- to doubt the view of the court, though ter, id. 149; Clark v. Butler, 4 id. Kerr v. Dougherty were not eontro!- 378; Matter of Gibson, 24 Abb. N. C. ling." See Matter of Oakes, 19 45. The General Term case of Camp- App. Div. 192; 45 N. Y. Supp. 984. bell v. Cowdrey (31 How. Pr. 172), Whether the assets of an estate have which reversed Matter of Fish (1 been fruitful or unproductive does not Tuck. 122; s. c, 19 Abb. Pr. 209), is affect the right of a legatee. He is also, in effect, overruled. The rule in the same position as a creditor, stated in the text was followed by the and entitled to be awarded interest § 777. Administration of Estate^ Etc. 644 income of an estate, or of a designated portion, is given to a lega- tee for life. Sueh. a bequest is not a part of the principal of the estate, or of any property possessed by the testator in his lifetime, but of that which is to arise or accrue after his death from a speci- fied fund to be set apart for that purpose. As it is the income which constitutes the legacy, the executor is accountable for the income from the time of testator's death, unless there is some pro- vision in the will from which a contrary intent can be inferred.-'^ /is a § 777. Interest from testator's death — Where the beneficiary a child of the testator or a person to whom he stood in loco pa- j rentis, the bequest bears interest from the date of the testator's I death, especially where there is no other provision made in the will / for the maintenance of such legatee.^® It is not needed, for the application of this rule, that the testator should have been under a legal obligation, at the time of his death, to support the legatee ; it is sufiicient that he has voluntarily assumed sueh a relation, similar in some respects to that of parent, so that it may be pre- sumed he did not intend to leave the legatee without support. ^^ It is, therefore, entirely competent to prove the surrounding cir- cumstances in order to raise a presumption that testator intended the legacy to draw interest, as it is also proper to prove all those circumstances in order to rebut any such presumption, or to show at the legal rate for such time as he How. Pr. 54.) Except under special is kept out of his demand. (lb.) But circumstances, interest is not allowed where a, legacy is payable out of rents upon arrears of an annuity. (Isen- or income, interest should be allowed hart v. Brown, 2 Edw. 341.) Com- only from the time sufficient had ac- pare Lawrence v. Embree, 3 Bradf. cumulated to pay the legacy. (Wells 364; Matter of O'Hara, 19 Misc. 254. V. Disbrow, 48 St. Rep. 746; 20 N. Y. 16 Brown v. Knapp, 79 N. Y. 136; Supp. 518.) Where the probate of a Matter of Travis, 85 Hun, 420; 32 will is revoked and a later will ad- N. Y. Supp. 887; Nahmens v. Copely, mitted to probate, the interest on a 2 Dem. 253, and cases cited. See, in legacy begins to run a year after the addition, King v. Talbot, 40 N. Y. 76 ; issue of letters under the later will. Lupton v. Lupton, 2 Johns. Ch. 614; (Matter of Patterson, 5 Misc. 178.) Burtis v. Dodge, 1 Barb. Ch. 77; Loder 15 Matter of Stanfield, 135 N. Y. v. Hatfield, 71 N. Y. 92; Lyons v. 292; 47 St. Rep. 813 To same effect, Steinhardt, 37 Misc. 628; 76 N. Y. see Cooke v. Meeker, 36 N. Y. 15; Supp. 241. A legacy given to an adult Matter of Sloeum, 60 App. Div. 438; married daughter for her support, 69 N. Y. Supp. 1036; 169 N. Y. 153; although not out of the residue of the Pierce v. Chamberlain, 41 How. Pr. estate, — Held, to bear interest from 501; Matter of Lynch, 52 id. 367; testator's death at the same rate as Powers V. Powers, 49 Hun, 219; 16 the fund, if invested as directed, would St. Rep. 770; Barrow v. Barrow, 55 have produced. (Matter of Lasak, 2 Hun, 503; 29 St. Rep. 240; Craig \. Connofy, 380.) See Matter of Wood, Craig, 3 Barb. Ch. 76; Booth v. Am- 1 Dem. 559; Bliss v. Olmstead, 3 id. merman, 4 Bradf. 129. A bequest in 273; Morgan v. Valentine, 6 id. 18; such securities as the legatee may se- Neder v. Zimmer, 6 id. 180; Keating lect draws interest from the death of v. Bruns, 3 id. 233. the testator. (Wetmore v. Peck, 66 IT Brown v. Knapp, supra. 645 Administration of Estate, Etc. §777. that no sucIl intent could have existed.^* It will be presumed that a legacy to testator's widow, in lieu of her dower or thirds, was intended to draw interest from his death, in the absence of some express or implied directions in his will to the contrary.^® The fact that the will makes a legacy to a son payable a certain num- ber of months after testator's death, there being no provision for the payment of interest, or for the support of the legatee until it is paid, precludes the idea that testator intended the legatee to have interest on the legacy previous to the expiration of the time fixed for its payment.^" A direction in the will that the legacy 18 Lyon V. Industrial School Assn., 52 Hun, 359. As to interest on a legacy to a posthumous child, see Law- rence V. Lawrence, 1 Edw. 557. 19 Williamson v. Williamson, 6 Paige, 298 ; Parkinson v. Parkinson, 2 Bradf. 77; Seymour v. Butler, 3 id. 193; Matter of Combs, 3 Dem. 348; Matter of Fogg, 5 id. 422; Matter of McKay, 5 Misc. 123; Carr v. Bennett, 3 Dem. 433; Stevens v. Melcher, 80 Hun, 514; 62 St. Rep. 599; 152 N. Y. 551. Compare Matter of Barnes, 7 App. Div. 13; 40 N. Y. Supp. 494; aflfd., 154 W. Y. 737. Where the widow receipts for her legacy, given in lieu of dower, this is an admission that she has received all she is entitled to on account of the legacy, and she is not entitled, on the executor's ac- counting, to be allowed a further sum by way of interest. (Matter of Hodg- man, 69 Hun, 484; 23 N. Y. Supp. 725; aflfd., 140 N. Y. 421.) 20 Thorn v. Garner, 113 N. Y. 198; Van Rensselaer v. Van Rensselaer, id. 207. In Vernet v. Williams (3 Dem. 349), the testator gave a legacy to his daughter, V., a married woman, directing his executors to pay it " as soon as practicable " after his death; and, by a later clause, provided that, " after the payment " of V.'s legacy, and " as soon as possible " after his death, the executors should invest a specified sum, and pay to his widow the interest and increase " com- mencing from my (his) decease." Held, that no feature of the case took the bequest to V. out of the operation of the general rule, that interest does not begin to run on a legacy until the expiration of a year after the death of the testator, in the absence of an express or implied direction of the will to the contrary. See Matter of Hodgman, 140 N. Y. 421 ; 55 St. Rep. 800. Where some action is made necessary on the part of the legatee by the terms of the will — e. g., pro- ceedings for the sale of property to have a legacy paid — the legatee can- not claim interest during his delay to institute such proceedings. (Crocheron V. Jaques, 3 Edw. 207.) See Haight V. Pine, 10 App. Div. 470; 42 N. Y. Supp. 303. In Kerr v. Dougherty ( 17 Hun, 341; aflfd., 79 N. Y. 327), the will provided that " the legacies are to be paid as soon as the amount can be collected out of the funds now in- vested in bond and mortgage at the city of Gr-and Rapids, Mich." Held, that interest ran only from one year after the issue of letters. The time when interest begins to run depends largely upon the question whether the legacy vested upon the testator's death, or afterward, upon the happening of a contingency. See ante, § 740, and cases there cited. See also Harward v. Hewlett, 5 Redf. 330; Dixon v. Storm, id. 419; St. P. Xavier College V. Doherty, id. 526; Piatt v. Moore, 1 Dem. 191;. Matter of Gerard, id. 244. Thus, a remainderman is en- titled to interest only from the ter- mination of the life estate. (Dodge v. Manning, 1 N. Y. 298; Wheeler v. Ruthven, 74 id. 429.) The legal rate of interest is proper, though, pending the administration, a less rate has been earned by the executor. (Godon's Estate, 5 Law Bui. 15 ; Hoflfman v. Penn. Hospital, I Dem. 118; Clark v. Butler, 4 id. 378.) A legacy which, by the direction of the will, draws interest from the attainment of the majority of the legatee, draws interest from such time, although the death of the testator took place subsequent thereto. (Matter of Brownell, 1 Con- noly. 175.) See Kerrigan v. Kerrigan, 2 Redf. 517; Pinney v. Fancher, 3 778. Administration op Estate, Etc. 64:6 be paid " with interest," but specifying no time from which inter- est is to be computed, does not take the case out of the operation of the rule that interest commences from the expiration of the 21 year. A legacy of a debt draws interest from the date of the will;^^ but a legacy to an executor for executing the office does not in general draw interest. ^^ § 778. Remedy of legatee by action.— The legatee has a remedy for the recovery of his legacy, by action, or by a special pro- ceeding in the Surrogate's Court. The executor is liable indi- vidually for a tortious conversion of the legacy, but his mere fail- ure to pay the full amount of the legacy, when due, will not, in the absence of proof of some illegal or improper conduct, or that he himself claims to be entitled thereto, authorize an action against him individually for the amount due.^* Eights of Bradf. 198. Where a legacy is given to be paid at a future day, the amount should be raised from the personal es- tate, and invested until it becomes payable; and the interest in the mean- time, if not otherwise disposed of, be- longs to the widow and next of kin. (Hone V. Van Schaick, 7 Paige, 221; affd., 20 Wend. .564.) The executor may take one year to make the in- vestment, in analogy to the time al- lowed for paying legacies. (Cogswell V. Cogswell, 2 Edw. 231.) See Mat- ter of Howard, 23 N. Y. Supp. 836. Tn Matter of Maine (62 Hun, 334; 17 N. Y. Supp. 114), the will gave $5,000 to testator's daughter and her chil- dren, which the executor was directed to invest in a house, and deed it to her for life and after her death to sell it and divide the proceeds among the children, the money for the purchase to be raised by the sale of a farm at the termination of a lease to the daughter's husband, and the will pro- vided for the payment of interest on $5,000, until a house was purchased; the daughter died before such pur- chase, which, in fact, was never made. Held, that the children were entitled to interest on $5,000 from her death until the executor's accounting, and annually thereafter until they were paid the principal ; the rule that in- terest is not due upon a legacy until the legacy itself is due not applying in such a case. 21 Lawrence v. Embree, 3 Bradf. 364. See Booth v. Ammerman, 4 id. 129. 22 Gilbert v. Morrison, 53 Hun, 442. 23 Morris v. Kent, 2 Edw. 175. 2* Hurlbut V. Durant, 21 Hun, 481. A surrogate's decree, directing the ex- ecutor to pay a legacy, renders it a personal debt, and in a legatee's action on the decree, a debt due the executor personally may be set off. (Dubois V. Dubois, 6 Cow. 494.) In Bellinger V. Potter (36 St. Rep. 601; 13 N. Y. Supp. 9), property specifically be- queathed was sold by an executor. Held, that he was not chargeable at the suit of other legatees with the proceeds, as he was presumably ac- countable to the particular legatee therefor, in the absence of evidence of the latter's abandonment of the legacy. In Camp v. Smith (117 N. Y. 354; 27 St. Rep. 322 ) , the executor having given a legatee notes of himself and others for the amount of her legacy, which were received for, and treated as, payments upon a subsequent judicial settlement of his account, — Held, that he could not thereafter be charged, as upon an implied personal obligation, to pay the legacy arising out of the transaction, but that the remedy was upon the note. The rule, that de- livery of the debtor's obligations to the creditor are not considered a pay- ment of the debt previously existing, does not apply in such case, as the executor is not personally indebted to the legatee except by reason of the notes. 647 Administeation of Estate, Etc, § 779. action against the representative, by a legatee for his legacy, and hy a next of kin for his distributive share, are given by the statute. Where, after one year from the granting of letters testa- mentary or of administration, an executor or administrator refuses, upon demand, to pay a legacy, or distributive share, the person entitled thereto may maintain an action against him. " But for the purpose of computing the time, within which such an action must be commenced, the cause of action is deemed to accrue when the executor's or administrator's account is judicially settled, and not before." ^ Formerly, the statute^* reqiiired that the demand of payment, preliminary to the action, should be accompanied with an offer of a bond of indemnity in double the amount of the legacy, conditioned for the refunding of the legacy, if necessary, etc. But, by the present statute, such a bond is required only on an applica- tion to the surrogate, after judgment in the action, for an order on which execution may be issued.^^ §779. Defenses to action; judgrment — By the former statute,^^ the representative might plead insuiSciency of assets, and if such insufficiency was shown, the plaintiff could recover only a propor- tionate part of the assets. But under the new system of proce- dure, the existence, sufficiency, or want of assets cannot be pleaded by either party, in an action for money, against an executor or administrator, in his representative capacity, and the plaintiff's right of recovery is not affected thereby.^^ An execution upon a judgment for the amount of a legacy, or distributive share, as in every case of a judgment against the representative as such, can be issued only upon the order of the Surrogate's Court which 25 Co. Civ. Proc, § 1819. See Mat- for the recovery of legacies and dis- ter of May, 31 St. Rep. 50; 9 N. Y. tributlve shares, see Rundle v. Alli- Supp. 785; Cocks v. Haviland, 31 St. son, 34 N. Y. 180; Eberhardt v. Rep. 742; 9 N. Y. Supp. 872. A Schuster, 6 Abb. N. C. 141; Hoyt v. widow may maintain an action for her Hoyt, 17 Hun, 192 ; Hitchcock v. share under this statute. (Betsinger Linsley, id. 556; Nichols v. Nichols, V. Chapman, 24 Hun, 15. ) Where the 12 id. 428 ; Lewis v. Maloney, id. 207 ; action is brought by a guardian ad Porter v. Kingsbury, 13 id. 33; litem, he must give a bond, etc. See Prentice v. Janssen, 79 N. Y. 478; Co. Civ. Proc, § 1820. Fisher v. Hubbell, 65 Barb. 74; De 26 2 R. S. 114, §§ 9-11. Groflf v. Terpenning, 14 Hun, 302. An 2T Co. Civ. Proc, § 1827. An un- action to enforce the legal liability of dertaking, and not a bond, is required, the devisee and executor may be The last clause of section 1819 (swpra) brought in this State, although the is new, and is intended to change the testator was a resident of, and the rule with respect to the Statute of executor was appointed in, another Limitations adopted in American Bible State. (Brown v. Knapp, 79 N. Y. Soc V. Hebard, 51 Barb. 552; aflfd., 137.) 41 N. Y. 619, n. See also Clark v. 28 2 R. S. 115, § 13. Ford, 3 Keyes, 370. For illustrations 29 Co. Civ. Proc, § 1824. See of the principles regulating actions §§ 631, 677, ante. §§ 780, Y81. Administration of Estate, Etc. 648 granted tke letters,^" and in the case of such a judgment, the court may, and in a proper case it must, before permitting an execution to be issued, require the applicant to give an undertaking, con- ditioned as provided.^' Having already described the proceeding by a judgment creditor for leave to issue execution, it will not be necessary to speak further of it here.^^ § 780. Remedies by special proceeding — Besides the remedy by action, a person entitled to a legacy, or other pecuniary provision under a will, or to a distributive share in an intestate's estate, is given a remedy by special proceeding in the Surrogate's Court, which may be availed of either before or after the expiration of a year from the grant of letters. It is desirable to speak of the latter proceeding first. §781. Compulsory payment of legacy after the year. — At any time after one year has expired since letters were granted, " a per- son entitled to a legacy, or any other pecuniary provision under the will, or a distributive share," may petition for a decree direct- ing the executor or administrator to pay the same or its just pro- portional part.^^ This remedy by a legatee is given by the same section which gives a like remedy to a creditor for the payment of a debt, and it has been held, in Surrogates' Courts, that the remedy in each case was confined to the creditor or legatee, as the case might be, and could not be availed of by his assignee. The Su- preme Court has decided, however, that the language of the section does not limit it to original creditors, and that there is no distinc- tion between the position of an assignee of a claim and the original owner of a claim, if it had not been assigned.^* The language above quoted, as to the remedy of a legatee to obtain payment, has been held not to include the assignee of a legatee, as an assignee cannot be said to take " under the will," but under his assignment ; and that an assignee's only remedy for the recovery of the amount of the legacy is by an application that it be paid him, on the judi- cial settlement of the executor's account, — the statute authorizing the surrogate, in that proceeding, to decree payment to legatees " or their assigns." ^^ It may be suggested, however, that the 30 Co. Civ. Proc, §§ 1825, 1826.' Matter of Brewster, 1 Connoly, 172. 31 Co. Civ. Proc, § 1827. In Tilden v. Dows (3 Dem. 240). it 32 See § 681, ante. was said that the language of Co. Civ. 83 Co. Civ. Proc., § 2722, as amended Proe., § 2804, which allows a person 1893 (former § 2717, subd. 2). who "is entitled, by the terms of the 34 Matter of Moderno, 63 Hun, 261. will," to the payment of money or de- See § 690, ante. livery of property, to proceed against 35 Peyser v. Wendt, 2 Dem. 221; a testamentary trustee for satisfac- 649 Administration of Estate, Etc. § T82. words " under the will " are words of description, and not of limi- tation, and refer to the words " or any other pecuniary provision," not to the words " of a legacy ;" and that an assignee of a legacy, or the representative of a deceased legatee, is " a person entitled to a legacy," within the meaning of the statute.^* § 782. Petition for payment — Upon the presentation of the petition, the surrogate must issue a citation, " and upon the return thereof, he must make such a decree in the premises as justice re- quires." ^'^ The petition should set forth the necessary jurisdic- tional facts, the possession of assets, and the nonpayment of the legacy. It is not necessary that the petition should allege, except in a general way, that there is money applicable to the petitioner's claim — this being more likely to be known to the executor than the legatee.^* Nor is it necessary to allege a demand on the execu- tor and his refusal to pay.^^ The petition must be presented within six years from the day the legacy is payable — that is, speaking tion, indicates, even more strongly was by a motion upon affidavit, stat- than that of section 2717 [now sec- ing the necessary facts. Held, that tion 2722], relating to executors, etc., the affidavit was sufficient as a peti- a purpose to postpone, until a judicial tion to authorize a citation, and that settlement of the account, proceedings the notice of motion did no harm, to enforce claims made against a tes- But in Matter of Lyon ( 1 Misc. 447 ; tator's estate by persons holding as- 23 N. Y. Supp. 146), it was held, that signments of legacies. the court does not acquire jurisdiction 36 Matter of Dunscomb ( 32 St. Rep. where no petition is presented, or 333; 10 N. Y. Supp. 247) was an ap- citation issued, or answer filed, and plication by the administrator of a no proof that there is sufficient per- deceased legatee, and it was not ob- sonalty to pay the legacy. Compare jected (as it might have been on the Matter of Hitchler, 21 Misc. 417. interpretation of the statute in the Where the executor is a testamentary above case) that the petitioner took trustee, an application to compel a under his letters of administration, payment of income cannot be made and noi " under the wi!l." But, in under this section, citing respondent Matter of Hodgman (11 App. Div. as executor, but he must be cited as a 344; affd., 161 N. Y. 627), it was testamentary trustee under sections held that the next of kin of a legatee 2804, 2805. (Matter of Byrnes, 26 cannot maintain an action or prose- Abb. N. C. 380; 14 N. Y. Supp. 371.) cute a claim for the share of the es- See § 791, post. A will devising to tate which under the will went to the executors the residue of testator's legatee. An application by a general property, in trust, during the life of guardian of an infant legatee for the two grandchildren, authorizing them payment to him of the legacy and au- to mortgage or lease the real estate, thority to apply the same to the sup- to receive the rents and profits and to port of the infant cannot be granted pay the same to designated bene- under section 2722 of the Code. (Mat- fieiaries, creates the executors testa- ter of Paton, 7 Misc. 377; 28 N. Y. mentary trustees. (lb.) Supp. 160.) A proceeding to compel 38 Matter of Macaulay, 94 N. Y. an executor of a deceased executor to 574. See Thomson v. Taylor, 71 id. pay a legacy under the earlier will, 217. cannot be maintained. (Matter of 39 Matter of Dunham, 1 Connoly, Moehring, 154 N. Y. 423.) 323; 22 Abb. N". C. 479; Matter of 3rCo. Civ. Proc, § 2722, as amended May, 31 St. Rep. 50; 9 N. Y. Supp. 1893. InMatter of Dunscomb (supra), 785. instead of a petition, the application § 783. Administkation op Estate, Etc. 650 generally, six years after the expiration of one year, or seven years in all, after the grant of letters — ■ or it is barred by the Statute of Limitations.*" When the will fixes a date for payment, the time is computed from that day.*' Where, by reason of a deficiency of assets, the proceeding, if commenced within the time, would have been fruitless, an exception to the rule might arise. Inasmuch as a demand is not necessary to entitle a legatee or distributee to main- tain an action or proceeding for his legacy or share, the time cannot be computed from the time the claimant has actual knowledge of the facts, as is permitted in certain cases.*^ A legatee may include in one petition an application for the payment of his legacy, and for the settlement of the executor's accounts.*^ § 783. The answer to the petition — If the application is op- posed, the answer must be in writing and verified, and must " set forth facts which show that it is doubtful whether the petitioner's claim is valid and legal, and denying its validity or legality, abso- lutely or upon information and belief." It is not sufficient merely to deny the validity or legality of the petitioner's claim ; it must set forth facts showing that the claim is doubtful.** If the petition 40 In Matter of Dunham (1 Con- (Matter of Miller, 15 Misc. 556; 37 noly, 323), it was held that section N. Y. Supp. 1129.) A right of ac- 1819, providing that " for the purpose tion to recover a remainder does not of computing the time within which accrue until the death of the life such an action must be commenced, tenant. (Gilbert v. Taylor, 148 N. Y. the cause of action is deemed to ac- 298.) Whether it is the duty of an crue when the executor's or adminis- administrator to plead the Statute of trator's account is judicially settled Limitations in every action brought and not before," applies to actions against him to recover a legacy, as it only, and not to special proceedings, would be in an action for a debt of and, therefore, a legatee cannot take the testator, was doubted in Pratt v. this proceeding after the Statute of Roman Catholic Orphan Asylum, 20 Limitations has run against the App. Div. 352; 46 N. Y. Supp. 1035; legacy; also held, that this proceed- affd., 166 N. Y. 593. ing is not governed by section 410, 41 In Smith v. Remington ( 42 Barb, which provides that where a right 75), the legacy was payable, by the grows out of the receipt or the reten- terms of the will, when the legatee tion of money or property by a per- reached his majority. Held, that a son acting in a fiduciary capacity, the proceeding to compel the payment of time within which an action must be the legacy was barred after six years brought is to be computed from the from that time. See McCartee v. time when the person having a right Camel, 1 Barb. Ch. 455, 465. to make the demand therefor, has 42 See Matter of May, supra. actual knowledge of the facts upon 43 Matter of Macaulay, 27 Hun, which the right depends. See Cobb v. 577 ; affd., 94 N. Y. 574. McCormack, 3 D^m. 606; House v. 44 Matter of Macaulay, 94 N. Y. Agate, 3 Redf . 307 ; Matter of Van 574 ; Hurlburt v. Durant, 88 id. 121 ; Dyke, 44 Hun, 394. A payment made Matter of Muller, 25 App. Div. 269; within six years, to a person other 50 N. Y. Supp. 786; Matter of Riley, than the moving party, in the ab- 4 Misc. 338; Matter of Alexander, 83 sence of proof as to the circumstances Hun, 147; 31 N. Y. Supp. 411. A under which it was made, will not denial of knowledge or information take the proceeding out of the statute. suflBcient to foriii a belief is not suffi- 651 Administration of Estate, Etc. § 783. of an assignee of a legatee can be entertained at all, it is no suffi- cient answer to it to deny knowledge whether the assignment to the petitioner is sufficient, in law, to transfer the legatee's inter- est. An answer denying the incorporation of the legatee applying for payment of its legacy, is insufficient to oust the surrogate of jurisdiction where the validity of claim is not put in question.*^ An answer that, by the express terms of the will, the legacy was to be paid " after the sale of " certain real property, and that the executors had not yet sold the property, is good.*® When payment of a legacy is left to the discretion of the executor, although he cannot arbitrarily postpone delivery to the legatee indefinitely,*^ where the answer puts in issue a question of the construction of the will affecting the petitioner's rights, the proceeding should be dismissed.** Where it appeared, notwithstanding a proviso in the will that the legatee should have no portion of the estate imtil he had accounted for and settled the account charged against him on the testator's books, for money advanced, etc., that an adjust- ment of this account between the legatee and the executor had been had and a balance was found due to the legatee, it was held that while this adjustment might be impeached on the final accounting of the executor, it removed the objection to an advancement to the legatee for the balance, founded upon this clause of the will ; and the legatee might apply for a decree directing the payment of this balance.*® cient. (Moorhouse v. Hutchinson, 4 Young Men's Christian Assn., 22 App. Dem. 362.) In answer to a petition Div. 325; 47 N. Y. Supp. 854. for payment of an instalment of a, 46 Matter of Fischer, N. Y. Law J., legacy, amounting to $500, after the Jan. 30, 1892. " The surrogate is same had become payable by the terms without power to compel a sale of the of the will, the executor alleged upon lot, and is, therefore, compelled to information and belief, that petitioner deny the application. The remedy of had unlawfully come into possession petitioners is in a court of equity to of four bonds, of the value of $4,000, compel a sale or to move for the formerly belonging to decedent, of revocation of letters for the alleged which respondent was entitled to pos- misconduct of the executors in refus- session as executor, and had unlaw- ing to carry out the terms of the will, fully converted the same, and refused (lb.) But, in Matter of Travis (85 to transfer them or to pay their value, Hun, 420 ; 32 N. Y. Supp. 887 ) , it was and that an action was pending be- said that where the will effects an tween the parties " for the recovery of equitable conversion of the realty and said bonds or their value." Held, that the executor has neglected to sell the the answer was insuflBcient as a de- same, the surrogate may compel pay- fense. (Matter of Selling, 5 Dem. ment of past-due Interest on a legacy 225.) See Cocks v. Haviland, 28 St. to a minor. Rep. 389; 7 N. Y. Supp. 871. 47 McKay v. McAdam, 80 Hun, 260; 45 Matter of Congregational Church 30 N. Y. Supp. 288. of Cutchogue, 37 St. Eep. 179; 13 N. 48 Matter of MeClouth, 9 Misc. 385; Y. Supp. 140. Compare Matter of 30 N. Y. Supp. 274. 49 Oilman v. Gilman, 63 N. Y. 41. §§ 784, 785. Administbation of Estate, Etc. 652 § 784. Dismissing the proceeding on the answer — The statute is imperative that upon the presentation of these facts which affect the jurisdiction of the court, in the manner therein provided, the surrogate must dismiss the proceeding. When the right of the claimant is denied by the representative, the surrogate is prohib- ited from hearing and deciding the issue thus formed, and the party is remitted to another proceeding or tribunal to establish or enforce his claim.^" Where the identity of the petitioner with the legatee is put in doubt by the answer, it is the duty of the court to dismiss the proceeding.*^ An answer setting up notice of an assignment of a portion of the legacy by the petitioner, greater than the amount then in the executor's hands, is enough to create a doubt, and requires a dismissal of the proceeding.*^ Where, pending probate proceedings, one of the next of kin, who was named as legatee in the disputed instrument, applied for a decree directing the payment to her of a sum of money, to be reckoned as part of her distributive share, or of her legacy, according to the event, the executor filed an answer setting forth that the applicant was opposing the admission to probate of the alleged will, which contained a clause declaring that, in case any legatee should con- test the validity of the instrument, the provision in his favor should cease, and fall into the residue ; it was held that the facts set forth showed the claim to be " doubtful," and the petition was dis- missed.*^ I 785. What questions will be determined. — Possessing only limited powers, the surrogate cannot in these proceedings determine 50 Fiester v. Shepard, 92 N. Y. 251. termine the validity of the legacy, see It was held, in a proceeding under the c. XIX, post. Revised Statutes (Riggs v. Cragg, 89 62 Matter of Phalen, 22 St. Rep. N. Y. 479), that the surrogate had 908 ; affd., 6 N. Y. Supp. 252. In Mat- jurisdiction to decree payment only ter of Hammond (92 Hun, 478; 36 N. where the legacy was undisputed. An Y. Supp. 1074), the proceeding was application by residuary legatees for dismissed upon an allegation, by the the payment to them of a sum in ex- executor, that the legatee had released cess of the balance of personalty after his interest. payment of debts, on the ground that, 53 Rank v. Camp, 3 Dem. 278. As by a provision of the will directing to the effect of such a clause in a will the sale of the realty and distribution on the rights of the contesting legatee, of the proceeds among others, there see Woodward v. James, 16 Abb. N. was a conversion which subjected the C. 246; Matter of Stewart, 1 Connoly, realty to a pro ra?o liability for debts, 412; Matter of Bratt, 10 Misc. 491; should be dismissed where the answer Matter of Beck, 6 App. Div. 211; of the executor denies this and alleges affd., 154 N. Y. 750 ; Scott v. Ives, 22 that the personalty is the primary Misc. 749. A clause in a will, that fund. (Matter of Mansfield, 7 Misc. " should any legatee be dissatisfied 383; 28 N. Y. Supp. 394.) with any gift herein made, then, in 51 Matter of Hedding Meth. Epis. that case, said gift shall be wholly Church, 35 Hun, 315. As to the power withheld," is void for want of cer- of the court, on the accounting, to de- tainty. (Matter of Jackson, 20 N. Y. Supp. 380.) 653 Administeation of Estate, Etc. § 786. every question which may arise between the executor and a legatee. He cannot, for example, pass upon the validity of a legatee's al- leged debt to the estate, set up by the executor in reduction of the legacy;^ nor can he determine the validity of a release given by the legatee to the executor,®® or other like questions. The power of a Surrogate's Court to determine the validity of a legacy or the capacity of a legatee to take, is a necessary incident of its power to order the payment of a legacy.®" Where the standing of the beneficiary is such as to render the approval of any provision for him, in particular, contrary to public policy, as for example, where the beneficiary has murdered the testator, the legacy is void.®^ § 786. Dismissal on the merits. — If the application is enter- tained on the petition and answer, then to entitle the executor to a dismissal, it must be proved " to the satisfaction of the sur- rogate " that there is no " money or other personal property of the estate, applicable to the payment or satisfaction of the peti- tioner's claim, and which may be so applied, without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction." ®* A mere doubt, raised by the answer, as to whether there is money or other property of the estate appli- cable to the payment of the legacy, will not justify a dismissal of the proceeding. Where the only question before the surrogate, on the merits, is whether there is money or property so applicable, and such application can be made without affecting the rights of others, etc., an accounting should be ordered to determine the question.®^ But where it appears that several suits are pending against the estate, to pay which, if they are successful, there are S4 Matter of Colwell, 15 St. Eep. appear how many of them -were in 742; Matter of Jones, 10 id. 176. being when the petitioner attained B5 Matter of Wagner, 119 N. Y. 28; majority, such children having the and other cases cited, ante, § 692. right to be joined with the petitioner. 56 See § 253, ante. B9 Brown v. Phelps, 48 Hun, 219. 57 Riggs V. Palmer, 115 N. Y. 506. A legacy ought not to be ordered paid See Matter of Fleming, 5 App. Div. pending the executor's accounting, 190; 39 N. Y. Supp. 156. In Pennsyl- (Matter of Harris, 1 Civ. Proc. Eep. vania, a devise to an " infidel society " 162.) Compare Matter of Ockers- is void for the same reason. (Zeis- hausen, 32 St. Eep. 709; 10 N. Y, weisB v. James, 63 Pa. St. 465.) Supp. 928. But where an executor 68 Co. Civ. Proc, § 2722, as amended fails to apply for an accounting for six 1893 (former § 2718, subd. 2) ; Mat- years, and, when compelled to do so, ter of Macaulay, 94 N. Y. 574. In files a bill for construction of the will Neaves v. Neaves (2 Dem. 230), an for the obvious purpose of securing a application to compel payment of a delay, the surrogate may properly di- legacy "to A. until his youngest child rect payment of a legacy. (Matter of shall come of age, the fund then to be Scheideler, 75 Hun, 185; 27 N. Y. divided between A. and his said chil-_ Supp. 7; affd., 142 N. Y. 668.) dren," was dismissed, as it did not' § 787. Administration of Estate, Etc. 654 not sufficient assets in the estate, the surrogate will not direct the executors to pay the legacies.^** Where the application is made pending an action in another court, which involves the validity of the legacy in question, it will not be dismissed, but be allowed to stand undetermined until the decision is had in the other court.*^ § 787. When payment ordered within the year. — While the stat- ute gives no absolute right to the legatees and next of kin, to insist on payment of what is coming to them from the estate until the expiration of the year, the representative may, though at his peril, make such payments to legatees and next of kin, in advance, ^^ and the statute expressly authorizes an appeal to be made, at any time, to the discretion of the surrogate, to direct a payment or part payment, if the condition of the assets is such as to make it safe to allow so doing. Such application may be made at any time after letters granted, although a year has not expired. To war- rant the court in granting such an application, the following must appear, in addition to the validity of the claim, to wit : 1. That there is money or other personal property of the estate, applicable to the payment or satisfaction of the petitioner's claim, and which may be so applied, without injuriously affecting the rights of others entitled to priority or equality of payment or satis- faction. 2. That the amount of money, and the value of the other prop- erty, in the hands of the executor or administrator, applicable to the payment of debts, legacies, and expenses, exceed, by at least one-third, the amount of all known debts and claims against the estate, of all legacies which are entitled to priority over the peti- tioner's claim, and of all legacies or distributive shares of the same class. 3. That the payment or satisfaction of the legacy, pecuniary so Matter of Brewster, 1 Connoly, (Matter of Kavanagh, 29 St. Kep, 172; 19 St. Rep. 698. Compare Mat- 215; 9 N. Y. Supp. 443.) Where two ter of O'Connor, 90 Hun, 284; 35 N. legacies in a will were declared in- Y. Supp. 779; affd., 149 N. Y. 573. -walid and one of the legatees ap- 61 Where a will has been declared pealed, — Held, that it should appear invalid and a decree made directing that the time for the other legatee to distribution to the next of kin, and appeal had expired before the exec- only one residuary legatee has ap- utors should be compelled to dis- pealed and given an under^king tribute the amount of such legacy, or thereon, — Held, that the executors else there sh.ould be some arrangement should set aside and retain a sum suf- made for reimbursing the executors in ficient to protect appellant's interest, case it should be- finally adjudicated in case of a possible reversal on ap- that the fund should be differently peal, and then carry out the directions disposed of. (Matter of Armstrong, of the decree so far as they will not 32 St. Rep. 441.) be affected by appellant's success. 62 Matter of Austin, 19 St. Rep. 211. 655 Administeation of Estate, Etc. § "TSS. provision, or distributive share, or some part thereof, is necessary for the support or education of the petitioner.®* These restrictions on the power of the surrogate do not apply to the case of a legacy directed by the will to be paid within the year. It is, consequently, no ground for dismissing a petition for the payment of such a legacy that it does not allege such a state of facts as can alone justify a direction to pay under this section of the Code.** But where there is no such testamentary direction, all three requirements as to the state of facts necessary to give the court jurisdiction must be complied with — that is, satisfactory proof must be given, for instance, that there 'is a surplus of assets by at least one-third, and the surrogate must so adjudge, on the proof, before granting the order for an advance payment.*^ He cannot, by mere force of the language of the Code, make the order for payment as a matter of discretion or of arbi- trary power. ®® His discretion is a judicial discretion, and his de- cree is, therefore, subject to review, on appeal. The fact that the representative has neglected to ascertain the debts by advertis- ing a notice to creditors to present their claims is not a good ground of objection to the petition, provided the advertised notice would have been completed if he had published it, as soon as he was entitled to do so, after grant of letters.*'' § 788. Payment pending probate controversy. — Before the amendment (1881) of section 2672, authorizing the court to di- rect the payment of a legacy or distributive share iy a temporary 63 Co. Civ. Proc, § 2723, as amended " It is frequently urged in defense to 1893 (former § 2719). See Hoyt v. applications of this character that the Jaclcson, 1 Dem. 553. period for advertising has not ex- 84 Matter of Selling, 5 Dem. 225. pired; but it is obvious that it would cs Barnes v. Barnes, 13 Hun, 233. be fruitful of delay in the settlement The language of the former statute of estates if a personal representative was, " at least one-third more of as- might delay advertising and then in- sets in the hands of the executor or terpose his own neglect successfully as administrator than necessary to pay a defense to the payment of a legacy, all the debts, legacies, and claims The time for the payment of legacies against the estate then known." (2 is a year from the issuance of letters, R. S. 98, § 83.) Under this, it was and the law for years has fixed the held, that the residuary legacies might time when the executor could procure be excluded in computing the amount leave to advertise, so that he was of the legacies. (Lockwood v. Lock- amply protected in their payment wood, 3 Redf. 330.) when due. Since the 1st of September, 66 Matter of McGowan, 28 Hun, 246, 1890, when the law went into effect as explained and distinguished in Mat- permitting advertisement for claims at ter of Hoyt, 31 id. 176. any time after the issuance of letters, 67 Matter of Cain, 42 St. Rep. 145 ; there is less reason than ever for an 17 N. Y. Supp. 11; aflfg. a decision of executor urging as a reason for delay Surrogate's Court of New York in distribution the possible existence county, in which the surrogate said: of debts." § 78^. Administration of Estate, Etc. 656 administrator, appointed pending a contested probate proceeding, it was held that there was no power to decree the payment of a legacy or distributive share pending a controversy over the pro- bate, and that it must be first determined whether the decedent died testate or intestate.** But since such 'amendment, the pend- ency of such a controversy is no bar to the proceeding ; nor is the pendency of a proceeding to revoke the probate of the will already granted. In effect, the executor, in the last case, is a temporary administrator, and he is free to do substantially the same acts which such an administrator may do, his functions beyond those acts being suspended, unless the surrogate expressly authorizes them to be used.®^ But this statutory provision was not intended to restrict the powers of the surrogate, in respect to orders, and, therefore, a surrogate may authorize an executor, pending a pro- ceeding to revoke the will, to do any act or make any payment, the performance or making of which the surrogate is authorized to direct, by other sections of the Code.™ § 789. Petition and proof — The petition and proof should show the petitioner's station in life, his age, the state of his health, the stage of his education, if a minor, etc. Where the petitioner is entitled to receive, under the will, the interest only of a specified sum, which is bequeathed in trust for his benefit, with remainder over, only an advance of such interest as has accrued is proper; a sum to be paid annually cannot be ordered as an advance, but only a specific amount to meet present needs.''^ Whether the ad- vance is necessary for the support or education of the petitioner must depe'ud upon the facts of each case as it arises. The pe- titioner's actual income, if any, from other sources, should ap- pear, and the amount thought to be necessary should be stated. If the papers do not disclose the facts, with sufiicient fullness to satisfy the court, a reference may be ordered. A widow, to whom S8 La Bau v. Vanderbilt, 3 Eedf . ferred, where there are sufficient as- 3S4; Riegelman v. Riegelman, 4 id. sets to pay it, because the proponent 492 ; Riegelman v. McCoy. 1 Dem. 86. of another will of the testatrix intends 69 Co. Civ. Proc., § 2650 ; Matter of to appeal from a decree denying its Hoyt, 31 Hun, 176. It is no objection probate. (Matter of O'Connor. 90 that the petitioner for the payment of Hun, 284 ; 3.5 K Y. Supp. 779 ; affd., the legacy is the contestant in the 149 N. Y. 573.) pending probate proceedings, if he is 70 Matter of Hoyt, supra. both a legatee and next of kin, and 71 Lockwood v. Lockwood, 3 Redf. thus entitled, in any event, to a per- 330; Matter of Ska,ats, N. Y. Law .!.. tion of the estate. (Rank v. Camp, 3 July 8, 1892; Matter of Hitchler, 21 Dem. 278.) See Matter of Hitchler, Misc. 417. But in Kerrigan v. Ker- 21 Misc. 417; Matter of Peaslee. 81 rigan (2 Redf. 517). the payment of Hun. 597; 30 N. Y. Supp. 1028. Pay- an annuity was ordered in advance, ment of a legacy should not be de- 657 Administeation of Estate, Etc. §§ 790, 791. a legacy is given in lieu of dower, may make tlie application as well as any other legatee. ^^ § 790. Bond on granting order. — It is a condition of granting the prayer of the petition that a bond be filed in the office of the surrogate, and approved by him, conditioned as prescribed by law with respect to a bond which an executor may require from a legatee, upon payment of a legacy, before the expiration of the year, pursuant to a direction to that effect, contained in the will.''^ It is essential, to confer jurisdiction, that the bond should con- form to the terms of the statute. Where the condition was for the refunding of the money " if necessary," instead of " when- ever required," for the payment of debts, etc., the order was held improperly granted.^* §791. Proceeding against testamentary trustee Besides the remedy for the recovery of debts and legacies, as against the per- sonal representative, a remedy is furnished, by which a person who is entitled, under a will, to the payment of money or the de- livery of personal property by a testamentary trustee, may pe- tition the surrogate for the payment of the money or the delivery of the property. ^^ This remedy is available at any time after the petitioner's right to the money or property has become absolute, as where the event, upon the happening of which a legacy was conditioned, has occurred. A citation will issue, as upon the ap- plication of a general legatee, and, upon its return, the trustee 72 Seymour v. Butler, 3 Bradf. 193; (Moorhouse v. Hutchinson, 4 Dem. Estate of Jones, 17 St. Eep. 724. 362.) A proceeding under this section 73 Co. Civ. Proc, § 2723, as amended and one for the judicial settlement of 1893 (former § 2719) ; Matter of the trustee's accounts under sections Austin, 19 St. Rep. 211; 2 N. Y. Supp. 2807 and 2809, .are separate and dis- 875. For the form of the condition, tinct proceedings, and should not be see Co. Civ. Proc, § 2721, as amended joined. (Matter of Rogers, 2 Con- 1893. See § 775, ante; Matter of noly, 639; 16 N. Y. Supp. 197.) Selling, 5 Dem. 225. Where such proceedings are so joined ^i Barnes v. Barnes, 13 Hun, 234. and it appears that the petitioner is The Surrogate's Court has no power to not entitled to maintain the proceed- direct the sale of real estate for the ing for payment, he may be permitted purpose of paying legacies. (Matter to continue as for an accounting. of Connor, 1 Law Bui. 8.) (lb.) An action at law by one of 75 Co. Civ. Proc, § 2804. No dis- several beneficiaries to recover for position of Income of a trust can be himself alone from a trustee, as such, made, in the proceeding, until it has a share of a trust estate belonging to accumulated. (Matter of Foster, 30 all, cannot be maintained, at least un- Misc. 573; 63 N. Y. Supp. 1102.) A til the trust has been closed and the proceeding cannot be instituted under balance ascertained. If the trust is this section to compel a trustee, who still open, the accounts of the trustee has been removed from office, either unsettled, and the amount going to the alone or in conjunction with his sue- particular beneficiary unlinown, re- cessor, to pay to petitioner income of sort must be had to a court of equity, the trust received before removal. (Husted v. Thomson, 158 N. Y. 328.) 42 § 792. Administeation of Estate, Etc. 658 may file an answer, setting forth facts whicli skow that it is doubtful whether the petitioner's claim is valid and legal, or denying its validity or legality, absolutely, or upon information and belief. Where, oii the face of the papers, the claim appears to be doubtful, the petition must be dismissed ; otherwise the court may hear the allegations and proofs of the parties, and make such a decree as justice requires.™ The powers of the surrogate are substantially the same as upon an application for the payment of a general legacy by an executor. On this proceeding, however, the court may, in a proper case, require the trustee, where he is unable to deliver the specific property, to pay its value in money '^^ and where it appears, upon presenting the petition, that a decree for the payment or delivery might affect the rights of other per- sons, with respect to the estate or fund, the citation must also be directed to such persons, and if it afterward appears, upon the hearing, that all the persons whose interests may be affected are not parties, they must be brought in by a supplemental citation, before a decree in favor of the petitioner can be made.^* § 792. Payment and investment of legacies to minors. — At com- mon law, the father, as guardian by nature merely, was not per- mitted to receive legacies bequeathed to his minor children, nor their distributive shares in the surplus of an intestate's estate,''* — a rule which was not changed by Revised Statutes. By the Code of Civil Procedure,^" it is provided that " when a legacy 76 Co. Civ. Proc, § 2805. See Mat- cedure whereby a beneficiary under a ter of Stevens, 20 Misc. 157 ; 45 N. Y. will may obtain prompt relief, where Supp. 908 ; Matter of Foster, 37 Misc. ij is plain that the rights of other 581; 75 N. Y. Supp. 1067. persons cannot be thereby prejudiced; 77 Co. Civ. Proc., § 2805 ; Peck v. while, on the other hand, where the Sherwood, 5 Redf. 416; Steinele v. grant of such relief may prove preju- Oechsler, id. 312. A legatee who was dicial to others, the latter are re- to receive the income, interest, profits, quired to be allowed an opportunity and earnings of a specified sum, given to be heard. (Beekman v. Vander. by the will in trust, is not entitled to veer, 3 Dem. 221.) A direction, to the advance in the value of bonds in " apply to the use of " is equivalent to which the sum was invested, and one " to pay over." ( Stoples v. which were thereafter sold, though she Hawes, 39 App. Div. 548.) See Gas- is entitled to the enhanced income quet v. Pollock, 1 App. Div. 512; affd., arising from such advance. (Duclos 158 N. Y. 734. V. Benner, 62 Hun, 428 ; 17 N. Y. 79 See Genet v. Tallmadge, 1 Johns. Supp. 168; revd., on other points, 136 Ch. 3; Eieck v. Fish, 1 Dem. 75; N. Y. 560.) Whitlock v. Whitlock, id. 160; Ker- 78 Co. Civ. Proc., § 2806. The sec- rigan v. Kerrigan, 2 Redf. 517. tion relating to an application to so Co. Civ. Proc, § 2746, as amended compel an executor to pay a legacy, 1900. Where an infant, entitled to an and section 2806 containing a similar expectant estate which has vested, but provision in reference to a testament- 'the time of possession is postponed ary trustee, have essentially the same until the majority of such infant, is purpose. They establish modes of pro- destitute of other suflScient means of 659 Administeation of Estate, Etc. § T92. or distributive share is payable to an infant, the decree- may, in the discretion of the Surrogate's Court, direct it, or so much of it as may be necessary, to be paid to his general guardian, to be applied to his support and education ; or when it does not exceed fifty dollars, the decree may order it to be paid to his father, and if his father be c^ead, then to his mother, for the tise and benefit of such infant. The court may, in its discretion, by its decree, direct any legacy or distributive share, or part of a legacy or distributive share, not paid or applied as aforesaid, which is payable to an infant, to be paid to the general guardian of such infant, upon his executing and depositing with the surrogate in his office, a bond running to such infant, with two or more sufficient sureties, duly acknowledged and approved by the surrogate, in double the amount of such legacy or distributive share, conditioned that such general guardian shall faithfully apply such legacy or distributive share, and render a true and just account of the application thereof, in all respects, to any court having cognizance thereof, when there- unto reqiiired, the sureties in which bond shall justify as required in this act, unless the surrogate shall determine that the general bond given by the guardian is ample and of sufficient amount to cover such legacy or distributive share.^^ Said court may, in its discretion, from time to time, authorize or direct such general guardian to expend such part of such legacy or distributive share, in the support, maintenance, and education of such infant, as it deems necessary.^^ support, the Surrogate's Court has ter of Hunt, 24 Civ. Proc. Rep. 239 ; 34 power to direct the trustee to pay to N. Y. Supp. 1088.) In Matter of the general guardian a, suitable, sum Tucker (28 Misc. 595; 59 N. Y. Supp. out of the rents and profits, to be ap- 1022), it was said not to be improper plied to the maintenance and educa- for the trustees to make payments to tion of the infant. ( Matter of Fritts, the general guardian, being the mother 19 Misc. 402; 44 N. Y. Supp. 344.) of the cestui que trust, instead of ap- See Matter of Lehman, 2 App. Div. plying the money themselves, although ■531; 37 N. Y. Supp. 1086. As to the general guardian had not given application of income, directed by the any bond under Co. Civ. Proc, § 2746, will to be accumulated, to the use of which has no bearing on the applica- a destitute minor, see L. 1897, c. 417, tion of income. § 5. 82 But no order can be made direet- 81 The surrogate may order a legacy ing the reimbursement of the guard- of an infant, deposited with the ian for past maintenance. (Matter of county treasurer, to be paid to a Sherrer, 24 Misc. 351; 53 N. Y. Supp. guardian subsequently appointed; but 714.) Where executors are given a not before the guardian's bond is fund, the income of which they are to shown to be sufficient. (Matter of apply to the maintenance of an in- Moody, 2 Dem. 624.) But an ancillary fant daughter, and proof is presented guardian, who is also the general of lack of good faith on the part of guardian and has given security as the executors in exercising their dis- such, cannot be required to give an cretion, the surrogate may direct a additional bond to entitle him to pos- suitable payment out of the principal, session of the ward's property, (Mat- (Matter of Berry, 5 Dem. 458.) See § 792. Abministeatiobt of Estate, Etc. 660 " On such infant's coming twenty-one years of age, he shall be entitled to receive, and his general guardian shall pay or deliver to him, under the direction of the Surrogate's Court, the securi- ties so taken, and the interest or other moneys that may have been paid to or received by such general guardian, after deducting therefrom such amounts as have been paid or expended in pur- suance of the orders and decrees of said court, so made as afore- said, and the legal commissions of such guardian; and the said general guardian shall be liable to account, in and under the di- rection of the Surrogate's Court, to his ward, for the same; in case of the death of said infant, before coming of age, the said securities and moneys, after making the deductions aforesaid, shall go to his executors or administrators, to be applied and distributed according to law, and the general guardian shall, in like manner, be liable to account to such administrator or exec- utor. " If there be no general guardian, or if the Surrogate's Court do not order or decree the payment or disposition of the legacy or distributive share in some of the ways above described, then the legacy or distributive share, or part of the same not disposed of as aforesaid, whether the same consists of money or securi- ties, shall, by the order or decree of the Surrogate's Court, be paid and delivered to and deposited in said court, by paying and delivering the same to and depositing it with the county treasurer of the county, to be held, managed, invested, collected, reinvested, and disposed of by him, as prescribed and required by section two thousand five hundred and thirty-seven of this act. The regulations contained in the general rules of practice, as specified in section seven hundred and forty-four of this act, and the provisions of title three of chapter eight of this act apply to money, legacies, and distributive shares paid to, and securities deposited with, the county treasurer, as prescribed in this section ; except that the Surrogate's Court exercises with respect thereto, or with respect to a security in which any of the money has been invested, or upon which it has been loaned, the power and au- § 793, post, note 84. Where the dl- income every year to such support, rection in the will was to " apply the but that they were to exercise a net income of each child's share to the reasonable discretion in view of the support, maintenance, and education age, surroundings, and general en- of said child until such child arrives vironment of the child. (Matter of at the age of twenty-one years," — MeCormick, 22 Misc. 309; 49 N. Y. Held, that it was not necessary for Supp. 1119; affd., 40 App, Div, 73.) the trustees to apply all of the net 661 Admiktisteation of Estate, Etc. §§ 793, 794. thority conferred upon the Supreme Court by section seven hun- dred and forty-seven of the Code." ** § 793. Applying principal of fund. — Where a will lodges in the trustee a discretion as to the emergency which will justify the application of principal to the support of minors, or as to the amount so to be applied, the court will never interfere in its exer- cise, unless an abuse of discretion is shown.^ TITLE EIGHTH. the payment of distributive shaees. ARTICLE EIRST. DEVOLUTION OF PROPEETY MADE VACANT BY DEATH. § 794. Object of statute — The law of intestate succession and the law of wills are both civil institutions, established from con- siderations of political policy and general expediency. The stat- utes which regulate intestate succession are not designed or in- tended as favors bestowed upon a man's widow, children, or other kindred, for their own benefit; but like all other laws of prop- erty, they rest upon the foundation of general utility and the com- mon advantage. In furtherance of this subject, and to prevent uncertainty asl to the ownership of property made vacant by death, and thus avoid strife and maintain the peace and harmony of families, the law arbitrarily designates, generically, the mem- bers of the present owner's family, whether naturally or arti- ficially composed, who shall be invested with rights of ownership on his death. The law which prescribes the course of succession of real property of an intestate is the Statute of Descents, so 83 Co. Civ. Proc, § 2746, as amended abuse of discretion. The answer filed IdOO. The surrogate has no power to by the executor denies information as direct the investment of the personal to many of the matters set forth in property of an infant in real estate the petition which might, under ordi- so as to affect the descent thereof nary circumstances, warrant the grant- upon the death of the infant during ing of an application for support. He minority. (Matter of Bolton, 159 N. alleges that he is ignorant as to the Y. 129.) existence of the emergency described 84 Banning v. Gunn, 4 Dem. 337 ; in the will. The estate now amounts Matter of Keinz, 88 Hun, 298; 34 N. to $3,361. The petitioner wishes the Y. Supp. 339; Matter of Dinkelspiel, matter summarily disposed of and de- N. Y. Surr. Decis., 1891, p. 169; Mat- sires to avoid the expense of a refer- ter of Kitson, id., p. 178; Matter of ence. I am unable to decide upon the Ruge, N. Y. Law J., June 23, 1892. papers, and, therefore, direct a refer- In the last case, the court said: ence to an assistant, who will take " There is no allegation or suggestion the testimony of the parties and re- in the petition that there has been an port the same." §795. Administration of Estate, Etc. 662 called, and that ■whicL. prescribes the succession of an intestate's personal property is known as the Statute of Distributions. § 795. What law governs intestate succession The law is well settled in England and this country that in all matters which con- cern the succession of personalty, the law of the decedent's last domicile is to control, without regard to the location of the as- sets f^ while in all matters which concern the descent and heirship of realty, the law of the place where it is situated is absolute.*^ Hence, where an intestate, last domiciled in another State, left assets in this State upon which administration was granted here, our courts, in directing the distribution • of such assets, will be governed by the laws of such foreigu State and not by our own laws. So, where by the laws of the domicile of the intestate (who was an illegitimate), his relations on his mother's side were not entitled to share in his estate, they will not be allowed to share in the distribution of the surplus made here, although, by our law, they would be so entitled.*'^ Contrariwise, when an illegitimate 85 In Parsons v. Lyman ( 20 N. Y. 103, 112), Denio, J., stated the doc- trine thus : " It is an established doctrine, not only of international law, but of the municipal law of this country, that personal property has no locality. It is subject to the law which governs the person of the owner, as well in respect tO' the dis- position of it by act inter vivos, as to its transmission by last will and testa- ment, and by succession upon the owner dying intestate. The principle, no doubt, has its foundation in inter- national comity; but it is equally ob- ligatory, as a rule of decision in the courts, as a legal rule of purely domestic origin. It does not belong to the judges to recognize or deny the rights which individuals may claim under it, at their pleasure or caprice, but, it having obtained the force of law by user and acquiescence, it be- longs only to the political government of the State to change it whenever a. change becomes desirable. But the right which an individual may claim to personal property in one country, under title from a person domiciled in another, can only be asserted by the legal instrumentalities which the institutions of the country where the claim is made have provided. The foreign law furnishes the rule of de- cision as to the validity of the title to the thing claimed; but in respect to the legal assertion of that title it has no extra-territorial force. As a result of this doctrine it is now gen- erally held everywhere, and it is well settled in this State, that an executor or administrator appointed in another State has not, as such, any authority beyond the sovereignty by virtue of whose laws he was appointed." To the same eflfect. Palmer v. Palmer, 71 Hun, 30; 24 N. Y. Supp. 613; revd., on other points, 150 N. Y. 139; Mat- ter of Devoe, 66 App. Div. 1 ; 72 N. Y. Supp. 962; aiTd., 171 N. Y. 281; Simonson v. Waller, 9 App. Div. 503; 41 N. Y. Supp. 662; Matter of Rup- paner, 15 Misc. 654; 37 N. Y. Supp. 429 ; aflf d., 9 App. Div. 422 ; New York Life, etc., Co. v. Viele, 22 App. Div. 80; affd., 161 N. Y. 11. 86 White V. Howard, 46 N. Y. 144. 87 In Public Adm'r v. Hughes (1 Bradf. 125), the intestate was illegiti- mate and domiciled in England, by whose laws there was an absolute ob- struction of succession, she having no lineal descendants and no lawful an- cestors or collateral relatives. Held, therefore, that her brother, having no interest in the estate, was not entitled to administer on her estate, and let- ters were accordingly granted to the public administrator as being entitled to the custody of iona vacantia. In Graham v. Public Adm'r (4 Bradf. 127), the intestate having died here 663 Administration of Estate, Etc. 795. cHld lias, by the subsequent marriage of its parents, become legiti- mate by virtue of the laws of the State or coimtry where such marriage was celebrated,^* or where the parents were domiciled at the time,*^ it is legitimate everywhere. Hence, also, where the widow of a person dying domiciled in Maryland is, by its law, en- titled to a certain share in his personal estate where he leaves a will in which she is unprovided for, she is entitled to such share in his personal property situated in this State, notwithstanding a will executed by him when a resident of this State, and ad- mitted to probate here, by which he disposes of his entire estate to others.®" Where the whole surplus of a nonresident's estate is brought within the jurisdiction of a surrogate here, he will not decline to distribute it, according to the law of the intestate's domicile ; yet it is evident that the statute does not contemplate the distribution of a part or portion of an estate, where the residue is subject to the control of the tribunal of a foreign domicile, and, in such a case, the court here, after satisfying domestic creditors, will transmit the surplus to the foreign jurisdiction for distribution.®' on her way from Scotland, her domi- cile of origin, to Canada, distribution of her estate must be governed by the law of Scotland. See Cruger v. Phelps, 21 Misc. 252. . See, generally, Shultz V. Pulver, 3 Paige, 182; affd., 11 Wend. 361; Vroom v. Van Home, 10 Paige, 549; Suarez v. The Mayor, 2 Sandf. Ch. 173; Holmes v. Remsen, 4 Johns. Ch. 460; Matter of Braithwaite, 19 Abb. N. C. 113. In Burr v. Sherwood ( 3 Bradf . 85 ) , a married woman, domiciled in Connecticut, having a vested right in the residuary estate of ' her grandfather, after coverture, re- ceived, in satisfaction of such portion, bank stock in this State, and her hus- band drew the dividend but never reduced the stock to possession, nor administered on her estate, though he survived her. Held, that, as by the law of Connecticut, the property vested in the husband at the time of the transfer, his administrator (ap- pointed here) was entitled to the pro- ceeds for distribution among his next of kin, according to the laws of Con- necticut. Whether a deceased person died intestate is to be determined by the law of the last domicile of the de- ceased. (Moultrie v. Hunt, 23 N. Y. 394.) So also as to the validity of the execution of a will (Dupuy v. Wurtz, 53 N. Y. 556; see § 179, ante), and the validity of a bequest to a for- eign corporation. (Chamberlain v. Chamberlain, 43 N. Y. 424; Matter of Huss, 126 id. 537; 37 St. Rep. 789; Hope V. Brewer, 136 N. Y. 126. ) The rights of a wife as creditor of her hus- band under the law of France, where the marriage was contracted, continue and attach to the property of the hus- band, where he abandons her and dies domiciled abroad. Accordingly, where the husband had appropriated the pro- ceeds of real estate inherited by the wife during coverture, it was held that as by the French law she was entitled to priority out of his estate as against legatees, she should be given such priority here, notwithstanding that the property bequeathed had all been acquired by the husband in this State subsequent to his desertion of his wife. ( Bonati v. Welsch, 24 N. Y. 157.) 88 Miller v. Miller, 91 N. Y. 315; Bates V. Virolet, 33 App. Div. 436 ; 53 N. Y. Supp. 893. 89 Stack V. Stack, 6 Dem. 280; s. c. as Estate of Stack, 10 St. Rep. 690; Bates V. Virolet, supra. 90 Matter of Braithwaite, 19 Abb. N. C. 113. 91 Parsons v. Lyman, 20 N. Y. 103. See Hardenberg v. Manning, 4 Dem. 437. Compare Simonson v. Waller, 9 §796. Administeation" of Estate, Etc. 664 Nevertheless, where there are two administrators of an estate, one in the place of domicile and the other in a foreign jurisdiction, the question whether the courts of the latter will decree distribu- tion of the assets, or remit them to the jurisdiction of the domicile, is a question, not of jurisdiction, but of judicial discretion, de- pending upon the circumstances of the particular case.^^ SUBDIVISIOE" 1. THE STATUTE OF DESCENTS. § 796. Order of descent.s^—" § 281. The real property^* of a per- son,^® who dies without devising the same, shall descend: " 1. To his lineal descendants ; " 2. To his father ; "3. To his mother ; and " 4. To his collateral relatives, " as prescribed in the following sections of this article." App. Div. 503. By Co. Civ. Proc, § 2700, it is provided that the person to whom ancillary letters are issued must, unless otherwise directed by an order of the surrogate or by the judg- ment or order of a court of record, transmit the money and other per- sonal property of the decedent, re- ceived by him after the letters are issued, or then in his hands in an- other capacity, to the State, or country, where the principal letters were granted, to be disposed of pur- suant to the laws thereof. Money, or other property so transmitted by him, at any time before he is so directed to retain it, must be allowed to him upon an accounting. See ccnte, § 317, 92 Matter of Hughes, 95 N. Y. 55; Despard v. Churchill, 53 id. 192. 93 The present rule of descent in this State was first prescribed by stat- ute passed February 23, 1786, which was afterward adopted by the Revised Statutes in 1830. (1 E. S. 750.) In 1896 the provisions of the statute were incorporated into the Real Property Law (L. 1896, c. 547) without sub- stantial alteration. 9* The term " real property," as used in the statute, is declared, by section 280, to include every estate, interest, and right, legal and equi- table, in lands, tenements, and heredit- aments, except such as are deter- mined or extinguished by the death; of an intestate seized or possessed thereof, or in any manner entitled thereto; leases for years, estates for the life of another person, and real property held in trust, not devised by the beneficiary. The term " inherit- ance " is to be understood to mean real property, as above defined, de- scended according to the provisions of the statute. Thus, where a testator devised lands with certain limitations, by which, according to the construc- tion put upon the devise, M. had an equitable life estate and his son a re- mainder in fee, it was held, that, upon the death of the son without lineal descendants, this remainder in fee passed to M., his father, under the Statute of Descents. ( Vanderheyden V. Crandall, 2 Dem. 9.) Where land is sold in a partition suit, and the money paid into court, or otherwise disposed of, until the persons entitled to such money come of age, and they die before majority, the money is di- vided as if it were real estate. (Val- entine V. Wetherill, 31 Barb. 655.) And money invested in land for the use of the intestate follows the same- rule. ( Champlin v. Baldwin, 1 Paige, 563.) 95 The property of an insane person descends as if he were of sound mind. (2 R. S. 55, § 25.) 665 Administration of Estate, Etc. §§ 79Y-800. § 797. Lineal descendants in equal degrees. — " § 282. If the in- testate leave descendants in the direct line of lineal descent, all of equal degree of consanguinity to him, the inheritance shall descend to them in equal parts, however remote from him, the common degree of consanguinity may be." § 798. Lineal descendants of unequal degree " § 283. If any of the descendants of such intestate be living, and any be dead, the inheritance shall descend to the living, and the descendants of the dead; so that each living descendant shall inherit such share as would have descended to him, had all the descendants in the same degree of consanguinity, who shall have died leaving issue, been living ; and so that issue of the descendants, who shall have died, shall respectively take the shares which their ancestors would have received." § 799. When father to inherit.—" § 284. If the intestate die without lawful descendants, and leave a father, the inheritance shall go to such father, unless the inheritance came to the in- testate on the part of his mother,^® and she be living f if she be dead, the inheritance descending on her part shall go to the father for life and the reversion to the brothers and sisters of the in- testate and their descendants, according to the law of inheritance by collateral relatives hereinafter provided ; if there be no such brothers or sisters or their descendants living, such inheritance shall descend to the father in fee." § 800. When mother to inherit for life, and when in fee " § 285. If the intestate diewithout descendants and leave no father, or leave a father not entitled to take the inheritance under the last section, and leave a mother, and a brother or sister, or the de- 96 " The expressions, ' where the in- chased real estate, part of the price heritauce shall have come to the in- of which was procured by mortgage testate on the part of the father,' or on real estate which came to him from ' mother,' as the ease may be, include his mother, the property purchased every case where the inheritance shall does not to the extent of the amount have come to the intestate by devise, of the mortgage, on that account, go gift, or descent from the parent re- to those of the blood of the mother ferred to, or from any relative of the exclusively, but descends in equal blood of such parent." (§ 280.) shares to the descendants of the Where one who inherited real estate brothers and sisters of the father and from his father conveyed it for a the mother. (Adams v. Anderson, 23 valuable consideration to his mother Misc. 705; 53 N. Y. Supp. 141.) by. whom it was devised to him,^ 97 When a person is described as Held, that under the Statute of De- living, it means living at the time of scents the property must be deemed the death of the intestate from whom to have come to him upon the part of the descent came; when he is de- hig mother and .to descend to those of scribed as having died, it means that her blood. But where he had pur- he died before such intestate. (§280.) §§ 801, 802. Administkation of Estate, Etc. 666 scendant of a brother or sister, tlie inlieritaiiee shall descend to the mother for life, and the reversion to such brothers and sisters of the intestate as may be living,®* and the descendants of such as may be dead, according to the same law of inheritance hereinafter provided. If the intestate in such case leave no brother or sister, or descendant thereof, the inheritance shall descend to the mother in fee." "^ § 801. Collateral relatives — " § 286. If there be no father or mother, capable of inheriting the estate, it shall descend, in the cases hereinafter specified, to the collateral relatives of the in- testate; and if there be several such relatives, all of equal de- gree of consanguinity to the intestate, the inheritance shall de- scend to them in equal parts, however remote from him the com- mon degree of consanguinity may be." § 802. Brothers and sisters, and their descendants. — " § 287. If all the brothers and sisters of the intestate be living, the inherit- ance shall descend to them ; if any of them be living, and any be dead, to the brothers and sisters living, and the descendants, in whatever degree, of those dead; so that each living brother or sister, shall inherit such share as would have descended to him or her, if all the brothers and sisters of the intestate, who shall have died leaving issue, had been living; and so that such de- scendants, in whatever degree, shall collectively inherit the share, which their parent would' have received, if living;^ and the same 98 Such revision vests in the fers only to the ease of relatives in- brothers and sisters living at the time heriting from the same ancestor, or of the intestate's death, and is not from each other, and recognizes the suspended by the outstanding life es- distinction between relatives of the tate. (Barber v. Brundage, 169 N. Y. full blood and of the half blood. 368.) See L. 1896, e. 547, § 280. (Wood v. Mitcham, 92 N. Y. 375, »9 Construing this section in oonnec- 379.) The statute does not interfere tion with section 15 (now section with the right of a remainderman to 290), "the true interpretation is that dispose of his vested remainder, the terms "brother" and "sister," as (Embury v. Sheldon, ,68 N. Y. 227.) employed here, embrace only brothers l Under the Statute of Descent of and sisters of the whole blood, and 1786 (1 E. L. of 1813, p. 52), no such brothers and sisters of the half representation was allowed among col- blood as are, under section 15, entitled laterals beyond brothers' and sisters' to inherit, and that a half brother or children. By the Revised Statutes, sister excluded from taking by sec- however, the principle of representa- tion 15 should not be deemed a brother tion was changed, so as to extend to or sister of the intestate, within the all lineal descendants of a brother or meaning of section C (now section sister, however remote. (Hannan v. 285 ) , the distinction between the Osborne, 4 Paige, 340. ) Before the whole blood and the half blood being Revised Statutes, all lineal deseend- retained as to the excluded class." ants, of equal degrees of consanguinity, (Per Rapallo, J. Wheeler v. Clutter- took equally, however remote they all buck, 52 N. Y. 67.) The section re- might be from the intestate; and if 667 Administration of Estate, Etc. § 803. rule sliall prevail, as to all direct lineal descendants of every brother and sister of the intestate, whenever such descendants are of unequal degrees." § 803. Brothers and sisters of father, and their descendants. — " § 288. If there be no heir entitled to take under either of the any of that class had died, leaving the two sons of another deceased issue, such issue took by representa- brother, took, each of them, as heirs- tion. But, in regard to collaterals, at-law of the intestate, an equal one- they took by representation, although third share of the estate — that is, the they all stood in equal degree. By 1 niece and nephews took per capita, R. S. 752, §§ 8, 9, 10, lineals and col- and not per stirpes. In all cases of a laterals were placed on the same foot- newly - purchased inheritance, which ing, and both take as do lineals. can arise under this section, all (Pond V. Bergh, 10 Paige, 140.) The brothers and sisters, and their de- rule now among both lineals and col- scendants of the half blood, are to laterals is that if all the heirs are in take as relatives of the whole blood, the same degree of consanguinity to The common-law rule, which gives a the intestate, they take equally, how- preference to the blood of the father ever remote they may be from him; in the descent of a, newly-purchased but if some of the class of relatives inheritance, applies only where there nearest to the decedent are dead and are relatives on the side of both father leave issue, the survivors of the class and mother — not where the descent is take equally among themselves, and to brothers and sisters and their de- the representatives of those who are scendants. In respect to brothers and dead take the share which their an- sisters of the father and mother of the cestors of that class would be entitled half blood, and their descendants, the to, if living. (lb.) Where the in- common-law rule was abolished by heritance descends to or through section 13. (Brown v. Burlingham, brothers and sisters, or both, the pri- 5 Sandf. 418.) Not only do the class mary division is to be made between of nearest relatives of the decedent the nearest surviving relative and the take equally where they are his only descendants of those of the same de- heirs-at-law, but all the original mem- gree who may have died, so that the bers of that class take equally by descendants of such shall collectively themselves, or by their representa- take the share which would have tives, where some of them have died fallen to their ancestor had he or she leaving issue, in the same manner as been living. This is the construction if they had survived the person last to be put on 1 R. S. 751, §§ 7, 8, 9, seized, and had then died intestate, taken together. (Hyatt v. Pugsley, And if all the original class of those 23 Barb. 285, 300.) In that case, the who would have been his heirs die be- intestate's nearest surviving relatives fore the testator, there is no repre- were his first cousins, and if all of sentation of any in that class, but the them had survived him they would next class become his heirs, and take have inherited equal parts of what de- with the representatives of any de- scended to them respectively. But as ceased in that class. Hence, where several of them had previously died, the only heirs are a son of a deceased the question arose whether the cousins sister of the intestate, and four sons must not be assumed as the stock, and and a granddaughter of a deceased the inheritance be divided into as brother of the intestate, the first many equal shares as there were first named is not entitled to one-half the cousins living, or who had died leaving lands of the intestate as the repre- descendants. Held, that such was the sentative of the deceased sister, and division required by the statute. In the sons and granddaughter of the Kelly V. Kelly ( 5 Lans. 443 ) , one of deceased brother to the remaining one- testator's children, to whom a fee was half, but each is entitled to an equal devised, survived the testator and died share, i. e., one-sixth of the inherit- intestate. Held, that a, daughter of ance. (Adams v. Smith, 20 Abb. N. the testator's deceased brother, and C. 60.) § 804. Administeation of Estate, Etc. 668 preceding sections, the inheritance, if it shall have come to the intestate on the part of his father, shall descend : " 1. To the brothers and sisters of the father of the intestate in equal shares, if all be living ; " 2. If any be living, and any shall have died, leaving issue, to such brothers and sisters as shall be living, and to the descend- ants of such as shall have died ; " 3. If all such brothers and sisters shall have died, to their descendants. " 4. If there be no such brothers or sisters of such father, nor any descendants of such brothers or sisters, to the brothers and sisters of the mother of the intestate, and to the descendants of such as shall have died, or, if all have died, to their descendants. Eut if the inheritance shall have come to the intestate on the part of his mother, it shall descend to her brothers and sisters and their descendants ; and if there be none, to the brothers and sisters of the father and their descendants, in the manner aforesaid.^ If the inheritance has not come to the intestate, on the part of either father or mother, it shall descend to the brothers and sisters both of the father and mother of the intestate, and their descendants, in the same manner. In all cases mentioned in this section the inheritance shall descend to the brothers and sisters of the intes- tate's father or mother, as the case may be, or to their descend- ants, in like manner as if they had been the brothers and sisters of the intestate." §804. Illegitimate intestate. — "§289. If an intestate who shall have been illegitimate die without lawful issue, or illegitimate issue entitled to take, under this section, the inheritance shall de- scend to his mother ; if she be dead, it shall descend to his rela- tives on her part, as if he had been legitimate. If a woman die without lawful issue, leaving an illegitimate child, the inherit- 2 The Revised Statutes abolished could be entitled to take who were the rule of the common law which de- able to trace their descent from a com- elared that, when the intestate was mon ancestor. It did not apply as be- the first purchaser of the inheritance, tween brothers and sisters. Thus, relatives on the side of the father where A., the first purchaser, died in- shoiild be entitled to take so as to ex- testate, leaving B., a niece, and C. and dude those on the side of the mother, D., her brother and sister by the half until the blood of the father was blood, — -Held, that B., C. and D. each wholly exhausted. ( Brown v. Burling- took one-third of the estate. ( lb. ) ham, 5 Sandf. 418.) This rule, at any As to the meaning of the expressions rate, was only applicable when the " where the estate shall have come to descent, from the want of near rela- the intestate on the part of his tives, could pass to collaterals only, father," or " mother," see § 799, note and when, consequently, those only 96, ante. 669 Administbatioij of Estate, Etc. §§ 805-807. ance shall descend to him as if he were legitimate.^ In any other case, illegitimate children or relatives shall not inherit." * § 805. Relatives of the half blood.— " § 290. Eelatives of the half blood and their descendants shall inherit equally with those of the whole blood and their descendants, in the same degree, unless the inheritance came to the intestate by descent, devise, or gift from an ancestor; in which case, all those who are not of the blood of such ancestor, shall be excluded from such inherit- ance." ^ § 806. Relatives of husband or wife. — (§ 290a.) "When the inheritance shall have come to the intestate from a deceased hus- band or wife, as the case may be, and there be no person entitled to inherit under any of the preceding sections, then such real property of such intestate shall descend to the heirs of such de- ceased husband or wife, as the case may be, and the persons en- titled thereto, under the provisions of this section, to inherit such real property, shall be deemed to be the heirs of such intestate.* § 807. Common law to prevail in cases unprovided for. — " § 291. In all cases not provided for by the preceding sections of this article, the inheritance shall descend according to the course of the common law." ^ 3 If the mother be living at the ille- real or personal property already gitimate'a death, the case provided for vested in the lawful heirs of any per- in the statute, in which the intestate's son heretofore deceased." They can- relatives on the part of the mother not inherit from the ancestor of a take, does not arise, and the common- deceased mother. (Matter of Mericlo, law rule governs (St. John v. North- 63 How. Pr. 62.) The term " illegiti- rup, 23 Barb. 25); hence, if the mate" defined. (Miller v. Miller, 91 mother is an alien, and so cannot in- N. Y. 315; and overruling Bollermann herit, the brother of the intestate v. Blake, 24 Hun, 187.) By L. 1895, does not acquire a right to inherit c. 531; L. 1899, c. 725, children whose through her. (lb.) parents have intermarried, or who 4 By the common law, an illegiti- may do so, are made legitimate, but mate, not having inheritable blood, not so as to interfere with vested could neither inherit lands himself, rights. See Davis v. Davis, 27 Misc. nor transmit them by descent to any 455; 59 N. Y. Supp. 223. other person, excepting his own legiti- 5 Hence, where an intestate leaves mate offspring, or persons otherwise as his nearest relatives, a great-uncle, capable of inheriting, claiming by in- great-aunts, and descendants of great- heritance from or through them. But aunts, the great-uncle will inherit to that provision is now modified so that the exclusion of the females of the now the widow and descendants of an same degree and their descendants, as illegitimate intestate have as many at common law, since the Statute of rights as if the decedent were legiti- Descents includes no other collateral mate. By L. 1855, c. 547 (repealed relatives of an intestate than brothers, by L. 1896, c. 547), "Illegitimate sisters, uncles, and aunts, and their children, in default of lawful issue, descendants. (Hunt v. Kingston, 3 may inherit real and personal prop- Misc. 309; 23 N. Y. Supp. 352.) erty from their mother, as if legiti- 6 Added by L. 1901, c. 481. mate; but nothing in this act shall 7 This section refers to the immedi- affect any right or title in or to any ate ancestor from whom the intestate 808-810. ADMiNisTKATioiir OF Estate, Etc. 670 § 808. Posthumous descendants and relatives " § 292. A de- scendant or a relative of the intestate, begotten before bis death, but born thereafter, shall inherit in the same manner, as if he had been born in the lifetime of the intestate, and had survived him." * § 809. Shares of heirs.— " § 293. When there is but one per- son to inherit, he shall take and hold the inheritance solely ; when an inheritance or a share of an inheritance descends to several persons, they shall take as tenants in common, in proportion to their respective rights." * § 810. Alienism of ancestor. — " § 294. A person capable of in- heriting under the provisions of this article, shall not be precluded received the inheritance, not a remote ancestor who was the original source of title. The term " ancestor " em- braces collaterals as well as lineals, through whom an inheritance is de- rived (Wheeler v. Clutterbuck, 52 N. Y. 67 ) ; so that a half-brother of the deceased, whose estate he inherits, is deemed to derive the inheritance from an ancestor, as the term refers to antecessors in estates, and not necessarily to those in pedigree. (Adams v. Smith, 20 Abb. N. C. 60.) The term " the blood " of the ances- tor includes his relations of the half blood. (Beebee v. Griflfing, 14 N. Y. 235.) See Champlin v. Baldwin, 1 Paige, 563; Emanuel v. Ennis, 48 N. Y. Super. 432. The provisions of this section refer to the immediate, and not the remote, source of the intes- tate's title — that is, an ascendant of the intestate in the right line, as father, etc. The statute does not in- clude collateral relatives, as brothers and sisters. Thus, where A. died in- testate, seized of land, and leav- ing children, B., C, and D., and a widow, who married again, and had a child, E., and afterward the widow died, and the children C. and D. died, without issue, and afterward B. died, without issue, it was held, that, on her death, B. owned the whole estate — one-third by direct descent from her father, and two-thirds by descent from her sisters C. and D., and that, as to the one-third she derived directly from her father, it went to his brothers and sisters, to the exclusion of her half-sister E., but that the two-thirds which she derived by descent from her own sisters C. and D. went to her half-sister E. (Valentine v. Wetherill, 31 Barb. 655.) 8 See L. 1896, i:. 547, § 46 (IH. S. 725, §§ So, 31). After-born children, unprovided for in a parent's vsdll, are entitled to share in the estate (2 R. S. 65, § 49, as amended 1869, c. 22), the same as if the parent had died in- testate. The' statute applies to an illegitimate child unprovided for by the mother's will made before her birth, who would have been entitled under L. 1855, c. 547, to have in- herited her mother's estate, if the mother had died intestate. (Bunce v. Bunce, 27 Abb. N. C. 61; 14 N. Y. Supp. 659.) The birth of a posthu- mous child creates an intestacy only as to its share. The balance of the estate passes, under the will, to those entitled. (Davis v. Davis, 27 Misc. 455; 59 N. Y. Supp. 223; Matter of Murphy, 144 N. Y. 557; 64 St. Rep. 249.) Where the children are the devisees, the object of the statute pan only be accomplished by requiring each to contribute, in proportion to the amount of his devise, to make up the share to which the after-born child would have been entitled, if the parent had died intestate. (Rockwell v. Geery, 4 Hun, 606.) See Co. Civ. Proc, § 1868. As to the method of determining the share of post-testa- mentary children, see Sanford v. San- ford, 61 Barb. 296; McCormack v. McCormack, 60 How. Pr. 196; Mitch- ell V. Blain, 5 Paige, 588. Gifts causa, mortis should contribute. (Bloomer v. Bloomer, 2 Bradf. 339; House v. Grant, 4 Lans. 296.) A child en ventre sa mere is to be considered in esse, for most purposes of property. (Mason v. Jones, 2 Barb. 230.) See Hone V. Van Schaick, 3 Barb. Ch. 488. 9 See Coe v. Irvine, 6 Hill, 634, where this section is construed in con- nection with an action of ejectment. 671 Administeatioit of Estate, Etc. 811. from such inheritaiice, by reason of the alienism of any ances- tor." ^^ § 811. When advancement to be set off. — " § 295. If a child of an intestate shall have been advanced by him, by settlement or 10 This provision is prospective, and has no application to eases which oc- curred previous to its original adop- tion, i. e., January 1, 1830. (Jackson v. Green 7 Wend. 336; Redpath v. Rich, 3 Sandf. 81.) Compare Hall v. Hall, 81 N. Y. 130; Kilfoy v. Powers, 3 Dem. 198; Maynard v. Maynard, 36 Hun, 227. This section does not en- able a person to deduce title through an alien ancestor still living, who would himself inherit the estate if he were a citizen. (People v. Irvin, 21 Wend. 128.) Accordingly, where de- cedent left a sister and a niece, her daughter, the former an alien and the latter a citizen, the niece does not take by inheritance. The statute en- ables those only to inherit who would be entitled to the estate by the ordi- nary law of descent, on the death of the person last seized, but for the alienism of some person through whom title is derived. (McLean v. Swan- ton, 13 N. Y. 538.) If some of the persons who answer the description of heirs are incapable of taking by rea- son of alienage, they are disregarded, and the whole title vests in those heirs competent to take, provided they are not compelled to trace the inheritance through an alien. (Jackson v. Green, 7 Wend. 334; Orser v. Hoag, 3 Hill, 79; Luhrs v. Eimer, 80 N. Y. 171.) The provision of this section, however, protects the inheritance whether the claimant derives title through lineal or collateral ancestors, or through both. (McCarthy v. Marsh, 5 K Y. 263.) An alien female who marries a citizen becomes herself a citizen, and is capable of taking title by descent. ( Burton v. Burton, 1 Keyes, 359 ; Hal- sey V. Beer, 52 Hun, 366.) In Luhrs V. Eimer (15 id. 399), intestate's father, at the death of his son, a citi- zen, was a nonresident alien, and in- capable of taking from the son; but a sister of intestate, capable of taking, by her marriage with a, citizen, was seized of the land, directly from the intestate, her brother, and not through her alien father. To the same effect. Smith V. Reilly, 31 Misc. 701; 66 N. Y. Supp. 40. The wife of a resident alien is entitled to dower. (L. 1845, c. 115, § 2; L. 1896, c. 547, § 5.) A woman born in this country, or who has been otherwise a citizen thereof, notwithstanding her marriage with an alien, and residence in a for- eign country, by dying intestate trans- raits real property by descent to her lawful children of such marriage, and their descendants, in like manner as if such children were native-born, or naturalized citizens of the United States (L. 1872, e. 120; L. 1896, u. 547, § 6) ; nor is her title to real estate descending to her impaired by her marriage with such alien. (lb. and L. of 1889, u. 42.) So, too, an alien female who comes to the United States a minor, and who, before ma- jority, marries an alien, by the marriage becomes, upon the subse- quent admission of the husband to cit- izenship, at once a citizen, without any declaration, on her part, of her intention to become such. (Renner v. Muller, 57 How. Pr. 229.) Notwith- standing the deceased mother, through whom the estate is claimed, was an alien, the inheritance, to one other- wise capable of taking, is not barred, (lb.) Collateral descent from the brother to the representatives of a deceased sister, the alien mother sur- viving, is immediate, and such alien mother cannot impede the descent, the pedigree being deduced from the brother last seized, by passing over the alien mother, she not being a medium hereditas. This section only applies to ancestors, and, therefore, the children of a surviving alien sister, though citizens, are barred. (lb.) As to when resident aliens, on filing deposition, etc., may take and hold lands, see 1 R. S. 720, §§ 16-20; L. 1845, c. 115; L. 1857, c. 576; L. 1868, c. 513; L. 1872, cc. 120, 141, 358; L. 1874, c. 261; L. 1875, c. 336; L. 1877, c. Ill; L. 1896, c. 547, § 5; Nolan V. Command, 11 Civ. Proc. Rep. 295; Wainwright v. Low, 132 N. Y. 313; Maynard v. Maynard, 36 Hun, 227; Daly v. Beer, 32 St. Rep. 1064. If any alien resident of this State, or any naturalized or native citizen of the United States, who has purchased and taken, or hereafter shall purchase §811. Administeatiow of Estate, Etc. 672 portion, real or personal estate, the value thereof must be reck- oned, for the purposes of descent and distribution, as part of the real and personal property of the intestate descendible to his heirs, and to be distributed to his next of kin; and if such ad- vancement be equal to or greater than the amount of the share, which such child would be entitled to receive, of the estate of the deceased, such child and his descendants shall not share in the estate of the intestate ;^^ but if it be less than such share, such child and his descendants shall receive so much, only, of the per- sonal property, and inherit so much only, of the real property of the intestate, as shall be sufficient to make all the shares of all the children, in the whole property, including the advancement, equal. ■'^ The value of any real or personal property so advanced shall be deemed to be that, if any, which was acknowledged by the child by an instrument in writing ; otherwise it must be estimated according to the worth of the property when given. ^^ Maintaining or educating a child, or giving him money without a view to a portion or settlement in life, is not an advancement.''* An estate and take, a conveyance of real estate within this State, has died, or shall hereaiter die, leaving persons who, ac- cording to the statutes of this State, would answer the description of heirs of such deceased person, or of dev- isees, under his last will, and being of his blood, such persons so answer- ing the description of heirs, or of such devisees of such deceased persons, whether they are citizens or aliens, are hereby declared and made capable of taking and holding, and may take and hold, as heirs, or such devisees of such deceased person, as if they were citizens of the United States, the lands and real estate owned and held by such deceased alien or citizen at the time of his decease. (L. 1845, c. 115, § 4, amended by L. 1875, c. 38; repealed and re-enacted in L. 1896, c. 547, § 5.) See Ettenheimer v. Hof- ferman, 66 Barb. 374; Goodrich v. Russell, 42 N. Y. 177; Brown v. Sprague, 5 Den. 545; Smith v. Smith, 70 App. Div. 286; 74 N". Y. Supp. 967. " The right, title, or interest in or to real property in this State of any per- son entitled to hold the same cannot be questioned or impeached by reason of the alienage of any person through whom such title may have been de- rived. Nothing in this section affects or impairs the right of any heir, dev- isee, mortgagee, or creditor by judg- ment or otherwise." (L. 1896, c. 547, § 7.) The State alone can question the right of an alien to hold land. (Belden v. Wilkinson, 33 Misc. 659; 68 N. Y. Supp. 205.) 11 This section applies only where the decedent left no will, and not to a case where a testator has disposed by will of only a portion of his estate. (Kent v. Hopkins, 86 Hun, 611; 33 N. Y. Supp. 767; Messman v. Egen- berger, 46 App. Div. 46; 61 N. Y. Supp. 556; Thompson v. Carmichael, 3 Sandf. Ch. 120.) For the statute as to advancements being reckoned as a part of surplus of the personal es- tate, see Co. Civ. Proc, § 2733, as amended 189'3. See § 830, post. Un- der this section, grandchildren are en- titled to insist that advancements, made to his children by the intestate, shall be brought by them into hotch- pot, and that the grandchildren shall be entitled to share therein. (Beebe V. Estabrook, 79 h. Y. 246.) An ad- vancement is presumed from paying consideration and taking title in the name of the child. (Piper v. Barse, 2 Redf. 19; Sanford v. Sanford, 61 Barb. 299.) 12 See Hobart v. Hobart, 58 Barb. 296; Bell v. Champlain, 64 id. 396; Sanford v. Sanford, 61 id. 299. 13 1 R. S. 754, § 25. HI R. S. 754, § 25; 2 R. S. 98, 673 Administeatioit of Estate, Etc. §§ 812-815. or interest given by a parent to a descendant by virtue of a bene- ficial power, or of a power in trust, with a right of selection, is an advancement." § 812. How adjusted — " § 296. When an advancement to be adjusted consists of real property, the adjustment must be made out of the real property descendible to ihe heirs. When it con- sists of personal property, the adjustment must be made out of the surplus of the personal property to be distributed to the next of kin. If either species of property is insufficient to enable the adjustment to be fully made, the deficiency must be adjusted out of the other." § 813. Certain estates not to be aifected The statute declares that the estate of a husband as tenant by the curtesy, or of a widow as tenant in dower, shall not be affected by any of its provisions ; nor shall the same affect any limitation of an estate by deed or will." 1^ § 814. Additional portion to widow — The provision of L. 1889, c. 406, § 1, that, " if the intestate shall leave a widow and a descendant or descendants, then such widow, in addition to any interest to which she may be entitled, under the [foregoing] sections, shall be entitled to the use, during her life, of an addi- tional portion of the estate, not exceeding in value one thousand dollars; and in case the intestate shall leave a widow and no de- scendant or descendants, then the widow shall be entitled to the absolute ownership, in fee, of such additional portion of the es- tate," was repealed by L. 1890, c. 173, § 1. § 815. Adopted children. — By a statute passed June 25, 1873,^® which legalized the adoption of minor children, it was provided (§10) that a child, when adopted, " shall take the name of the § 78. But otherwise where such in- 16 L. 1873, c. 830, § 10. The statute tention is shown. (McRae v. McKae, does not apply to adoptions consum- 3 Bradf. 199; Matter of Morgan 104 mated before its passage (Hill v. Nye, N. Y. 74.) 17 Hun, 457), except those author- 15 L. 1896, c. 547, § 280 (1 R. S. ized in a few cases by special statutes. 755, § 20). See Graham v. Ludding- (Carroll v. Collins, 6 App. Div. 106.) ton, 19 Hun, 246; Leach v. Leach, 21 But a child adopted in 1886, pursuant id. 381; Zimmerman v. Schoenfeldt, to L. 1873, e. 830, § 10, takes as an 3 id. 692; Arrowsmith v. Arrowsmith, heir of the person adopting, as pro- 8 id. 606; Coit v. Grey, 25 id. 444; vided by the amendment by L. 1887, Kirlc V. Richardson, 32 id. 434; Mat- c. 703. (Dodin v. Dodin, 16 App. Div! ter of Winne, 2 Lans. 21; Burke v. 42; 44 N. Y. Supp. 800; aflfd., 162 N Valentine, 52 Barb. 412; Hatfield v. Y. 635.) Sneden, 54 N. Y. 280. Contra, Bil- lings V. Baker, 28 Barb. 343. 43 § 815. Administeation of Estate, Etc. 674 person adopting, and the two thenceforth shall sustain toward each othei' the legal relation of parent and child, and have all the rights, and be subject to all the duties, of that relation, excepting the right of inheritance, except that, as respects the passing and limitations over, of real and personal property, under and by deeds, conveyances, wills, devises, and trusts, said child adopted shall not be deemed to sustain the legal relation of child to the persons adopting." By an act passed June 25, .1887,^^ this sec- tion was amended in several important particulars. They were (1) to substitute "including," instead of "excepting" the right of inheritance; and (2) to interpose the declaration that "the [right of the] heirs and next of kin of the child so adopted shall be the same as if the said child was the legitimate child of the person so adopting, except," ^^ etc.; and (3) changing the last exception to the original act, under which the adopted child was prevented from taking by virtue of any instrument, unless desig- nated therein ; in other words, from taking by the description of " child," " issue," " descendant," etc. But the amendment gave the right to take by inheritance, as a child, and also the right to take as a child by a testamentary or other provision in favor of a " child " or " children," etc., except that, as respects the passing or limitation of property, " dependent upon the person adopting dying without heirs,-'® the child adopted shall not be deemed to sustain the legal relation of child to the person so adopting, so as to defeat the rights of remaindermen." In other words, the statute allowed the use of the general term " child " or " children " to include an adopted child, for the purpose of cutting off the heir ; but not for the purpose of cutting off a devisee or remainder- man. If, however, the will or other instrument is so expressed that the adopted child takes by name and not under the general word " child " or " children," the gift would be good in either case.^" The Act of 1887 was, with some modification in phraseology, car- ried into the Domestic Relations Law^* in the following lan- guage: " The [adopted] child takes the name of the foster parent. His rights of inheritance and succession from his natural parents 17 L. 1887, c. 703. See Smith v. l» Including next of kin. (Keteltas Allen, 161 N. Y. 478. v. Keteltas, 72 N. Y. 312.) See amte, 18 Under this amendment, it would § 269, notes. seem that the giving the right of in- 20 See remarks on the statute in heritance to an adopted child includes N. Y. Daily Reg., Oct. 21, 1887; also the right to take by representation, note in 29 Abb. N. C. 49. For a, different eonstructiou given to 21 L. 1896, e. 272, § 64, as amended a similar Massachusetts statute, see L. 1897, C. 408. Wyeth V. Stone, 144 Mass. 441; 4 N. Eng. Rep. 462. 6T5 Administeation of Estate, Etc. § 816. remain unaffected by sucli adoption. The foster parent or parents, and the minor, sustain toward each other the legal relation of parent and child, and have all the rights, and are subject to all the duties of that relation, including the right of inheritance from each other, * * * and such right of inheritance extends to the heirs and next of kin of the minor, and such heirs and next of kin shall be the same as if he were the legitimate child of the person adopting, but as respectsi the passing and limitation over of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the minor is not deemed the child of the foster parent so as to defeat the rights of remaindermen." ^^ SUBDIVISION 2. THE STATUTE OF DISTRIBUTIONS. § 816. Origin and policy of the statute. — Our statute regulating the distribution of the surplus of the personal property of an in- testate, is taken from the English statute of 22 & 23 Charles II., c. 10, which was borrowed from the 118th novel of Justinian, and, except in some few instances mentioned in the statute, is governed and construed by the rules of the civil law, and not, as is the Statute of Descents, by the common law.^^ The share which comes to a person under this statute is designated a distributive share. The kindred of every one, who are entitled to distributive shares, are naturally divided into three classes: (1) his children and their descendants; (2) his father and mother and their de- scendants; (3) his collateral relatives, including (a) his brothers and sisters and their descendants, and (h) his uncles, cousins, and other relatives of either sex who have not descended from his brother or sister. Ascendants and descendants are lineal kindred ; other relatives are collateral kindred. The general policy of the statute is, first, to provide for the widow, children, father and 22 The statute also provides that to the property of the child by descent upon the adoption, the rights of the or succession. parents of the minor by descent or 23 2 Blaekst. Coinm. 504, 515; 2 succession cease; and further that a Kent's Comm. 422; Sweezey v. Willis, subsequent marriage of the parent or 1 Bradf. 495; Matter of Marsh, 5 foster parent does not affect his right Misc. 428. § 816a. Admi^stistkation of Estate, Etc. 676 mother of the intestate, that is, his lineal kindred, and, after them, the next of kin of equal degree. When the claimants are of an unequal degree, the nearest of kin takes the whole, unless the remote class can come in by representation, which, by the statute, was, until recently, prohibited as to collaterals, except in the solitary case of brothers' and sisters' children.^ § 816a. Order of distribution — The Statute of Distributions, so called, was transferred by L. 1893, c. 686, from the Revised Statutes^^ to the Code of Civil Procedure, where it constitutes sec- tion 2732. The eighth paragraph of the original statute is sub- divided so as to make paragraphs 8 and 9 ; the other changes are merely verbal. It provides as follows: " If the deceased died intestate, the surplus of his personal property after payment of debts; and if he left a will, such sur- plus, after the payment of debts and legacies, if not bequeathed, must be distributed to his widow, children, or next of kin, in manner following: " 1. One-third part to the widow, and the residue in equal por- tions among the children, and such persons as legally represent the children if any of them have died before the deceased. " 2. If there be no children, nor any legal representatives of them, then one-half of the whole surplus shall be allotted to the widow, and the other half distributed to the next of kin of the deceased, entitled under the provisions of this section. " 3. If the deceased leaves a widow, and no descendant, parent, brother or sister, nephew or niece, the widow shall be entitled to the whole surplus ; but if there be a brother or sister, nephew or niece, and no descendant or parent, the widow shall be entitled to one-half of the surplus as above provided, and to the whole of the residue if it does not exceed two thousand dollars ; if the residue exceeds that sum, she shall receive in addition to the one- half, two thousand dollars ; and the remainder shall be distributed to the brothers and sisters and their representatives. " 4. If there be no widow, the whole surplus shall be distrib- uted equally to and among the children, and such as legally repre- sent them. 24 See Doughty v. Stillwell, 1 Bradf. relating to personalty, only embraces 302; Adee v. Campbell, 79 N. Y. 52; persons within the Statute of Distri- Hurtin v. Proal, 3 Bradf. 414; Mur- butions. (Gallagher v. Crooks, 132 dock V. Ward, 67 N. Y. 387. The N. Y. 338; 44 St. Rep. 436.) term " relatives," when used in a will 28 2 E. S. 96, § 75. 677 Administkation of Estate, Etc. § 8I60. " 5. If there be no widow, and no children, and no representa- tives of the child, the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal repre- sentatives. " 6. If the deceased leave no children and no representatives of them, and no father, and leave a widow and a mother, the half not distributed to the widow shall be distributed in equal shares to his mother and brothers and sisters, or the representa- tives of such brothers and sisters ; and if there be no widow, the whole surplus shall be distributed in like manner to the mother, and to the brothers and sisters, or the representatives of siich brothers and sisters. " 7. If the deceased leave a father and no child or descendant, the father shall take one-half if there be a widow, and the whole, if there be no widow. " 8. If the deceased leave a mother and no child, descendant, father, brother, sister, or representative of a brother or sister, the mother, if there be a widow, shall take one-half; and the whole, if there be no widow. " 9. If the deceased was illegitimate and leave a mother, and no child, or descendant, or widow, such mother shall take the whole and shall be entitled to letters of administration in exclu- sion of all other persons. If the mother of such deceased be dead, the relatives of the deceased on the part of the mothei' shall take in the same manner as if the deceased had been legitimate, and be entitled to letters of administration in the same order. " 10. Where the descendants, or next of kin of the deceased, entitled to share in his estate, are all in equal degree to the de- ceased, their shares shall be equal. " 11. When such descendants or next of kin are of unequal degrees of kindred, the surplus shall be apportioned among those entitled thereto, according to their respective stocks ; so that those who take in their own right shall receive equal shares, and those who take by representation shall receive the share to which the parent whom they represent, if living, would have been en- titled. " 12. Representation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate.^® 26 As amended by L. 1898, e. 319; upon this subdivision of the statute in effect Sept, 1, 1898. See remarks in N. Y. Law J., May 9 and 19, 1898. § 817. Administeation of Estate, Etc. 678 " 13. Relatives of the lialf blood, shall take equally with those of the whole blood in the same degree ; and the representatives of such relatives shall take in the same manner as the representatives of the whole blood. " 14. Descendants and next of kin of the deceased, begotten be- fore his death, but born thereafter, shall take in the same manner a? if they had been born in the lifetime of the deceased, and had survived him. "15. If a woman die, leaving illegitimate children, and no law- ful issue, such children inherit her personal property as if legiti- mate.^ "16. If there be no husband or wife surviving and no children, and no representatives of a child, and no next of kin, then the whole surplus shall be distributed equally to and among the next of kin of the husband or wife of the deceased, as the ease may be, and such next of kin shall be deemed next of kin of the deceased for all the purposes specified in this chapter ; but such surplus shall not, and shall not be construed to, embrace any personal property except such as was received by the deceased from such husband or wife, as the case may be, by will or by virtue of the laws relating to the distribution of the personal property of the deceased person." ^ § 817. Partial iutestacy The statute applies not only to cases of total, but also to cases of partial, intestacy.^^ Whatever per- sonal assets are not effectually disposed of by the will, or consumed in the administration of the estate, come within its scope. Thus, where residuary legatees are, by the terms of the will, tenants in common, and not joint tenants, and one dies before the testator, the share of such a one constitutes assets not disposed of by the will, and must be distributed according to the statute.^" And where a testator bequeathed to his children a contingent interest, for life, in the income which might accrue from a residuary fund, 27 Added by L. 1897, c. 37 ; in effect Compare Lefevre v. Lefevre ( 59 N. Y. Mar. 9, 1897. 434), in which case the testator, by 28 Added by L. 1901, c. 410; in eflfect his will, gave to his wife one-third of Sept. 1, 1901. his estate, but it was not stated to be 29 Fry V. Smith, 10 Abb. N. C. 224 ; in lieu of dower or other claim. The Kearney v. Missionary Soe., id. 274; residuary bequest was declared void. Finch V. Wilkes, 17 Misc. 428; 41 Held, that the testator died , intestate N. Y. Supp. 227 ; Doane v. Mercantile as to that portion of his estate, and Tr. Co., 24 Misc. 502; 53 N. Y. Supp. it was to be distributed under the 902; affd., 39 App. Div. 639. statute. 30 Hart V. Marks, 4 Bradf. 161. 679 Admii^isteation of Estate, Etc. § 818. after the happening of a particular event, and provided for the disposal of a portion only of the income previous to that time, it was held that the surplus must be distributed as in case of intes- tacy.*'' There seems to be some uncertainty ■whether, a trust of personalty being declared void as contrary to the statute against perpetuities, the unlawful accumulation is to be distributed ac- cording to the Statute of Distributions, or whether it goes to those entitled " to the next eventual estate " under the will.*^ *§ 818. The doctrine of representation The statute provides that, when descendants and next of kin are of unequal degrees of kindred, the surplus is to be apportioned among those entitled thereto, according to their respective stocks, so that those who take in their own right shall receive equal shares, and those who take by representation shall receive the share to which the parent, whom they represent, if living, would have been entitled.** The words " legal representative," as used in this statute, do not mean, as in some statutes, executors or administrators, but issued* who, in certain cases, are allowed to represent, or take in place of, a deceased parent or grand parent. If a son or daughter died before the intestate, but left children or grandchildren who sur- vive the intestate, the law preserves to these grandchildren or great-grandchildren, the distributive share which their parent, his child, would have taken had he survived, and the share is divided among them according to their number. This is not regarded as affecting the rules which govern the computation of degrees, but the children of the second or third generation represent their de- ceased parent for the purpose of distribution. If, however, the intestate's son or daughter survives him, and afterward, but before distribution, dies, leaving issue, the doctrine of representation does not apply. The right to a distributive share of the intestate's estate is, in general, vested on his death ; and if a distributee, hav- ing a vested right, dies before distribution is made, the share is to be paid to his executors or administrators.*^ It is a part of his estate, to be distributed, not by the doctrine of representation, but according to the other provisions of the Statute of Distributions 31 Vail V. Vail, 4 Paige, 317. 33 Co. Civ. Proc, § 2732, as amended 32 See Maniee v. Manice, 43 N. Y. 1893, subd. 11. 385; Van Emburgh v. Ackerman, 3 34 Greenwood v. Holbrook, 1 1 1 N. Y. Redf. 499; Robinson v. Robinson, 5 465. Lans. 165. See § 263, ante. 35 Rose v. Clark, 8 Paige, 574; Will- cox V. Smith, 26 Barb. 316. § 819. Admististeation of Estate, Etc. 680 as applied to Ms family. Prior to 1898 tlie doctrine of represen- tation did not apply to collaterals beyond brothers' and sisters' cbildren,^^ but in that year it was extended to collaterals " in the same manner as allowed by law in reference to real estate." Just what that means is not at all clear. If the intestate left both real and personal estate, then, in accordance with the Statute of De- scents, those entitled to succeed to a share of the real property, to- gether with those who would be next of kin under the Statute of Distributions, will be the lawful next of kin of the decedent. But if personalty only is involved, the problem is not so easy of solution, particularly where the intestate left collateral relatives beyond the degree of brothers and sisters and their descendants. Space will not permit further discussion of this very interesting subject, but if an opinion may be hazarded, it would seem that, in the case of brothers and sisters and their descendants, representa- tion is unlimited; but where an intestate dies, leaving personal estate only, and leaving more remote collateral relatives, his estate must be distributed to his nearest of kin in equal degree, and the doctrine of representation will not apply to their descend- ants."^^ § 819. Adopted children. — Reference has already been made to the statute by which an adopted child has all the rights and is subject to all the duties of the legal relation of pardnt and child, including the right of inheritance ; and the heirs and next of kin of such adopted child are the same as if the adopted child were the legitimate child of the person adopting,^* thus extending the doctrine of representation to adopted children. 36 Before the amendment of subd. wills which, by their terms, were to 12 it had been held that the limitation be executed here. (Simonson v. Wal- was not modified by subd. 5 of the see- ler, 14 Misc. 95 ; revd., 9 App. Div. tion, providing that, in case there be 503.) no widow and no children, and no rep- 37 See Matter of Davenport, 67 App. resentatives of a child, then the whole Div. 191; 73 N. Y. Supp. 653. In that surplus shall be distributed " to the case, an intestate left a nephew, niece, next of kin in equal degree." Hence, uncles, and aunts, and descendants of where an unmarried intestate left, as deceased uncles and aunts; held, that his next of kin, a brother and sister, his estate should be distributed to the and four grandchildren of a deceased nephew, niece, and the living uncles half-brother, it was held, that the sur- and aunts, as next of kin in equal de- viving brother and sister took the gree, in equal proportion, no repre- whole; the grandchildren of the de- sentation being allowed to deceased ceased brother being one degree be- uncles and aunts. yond the statute. (Matter of Suck- 38 L. 1896, c. 272, § 64, as amended ley, 11 Hun, 344.) That subdivision, L. 1897, c. 408 (former statute, L. however, applied only to domestic 1887, c. 703), See ante, § 815. 681 ADMiNisTKATio]sr OP Estate, Etc. § 820. § 820. Computing degrees of kindred There is little difficulty in determining questions of distributions, except where there are no descendants and no widow. In such cases, the whole surplus is to be distributed " to the next of kin in equal degree, to the de- ceased and the legal representatives;" and it frequently becomes necessary to determine who are of an equal degree of consanguin- ity to the deceased, and how far the distribution may be made among those who are of unequal degrees of relationship to the decedent. In determining the persons who are next of kin of a decedent " in equal degree," the rule of the civil and common law is to count up, from either of the persons related to the common ancestor, and then down to the other person related, reckoning a degree to each person ascending and descending; while the canon law reckoned by counting down, from the common ancestor, the number of removals in the longest line, thus: Grandfather. Father. Uncle. Intestate. Brother. Cousin. Son. IN'ephews and Nieces. In other words, if we regard the lines as forming a triangle, of which the common ancestor is the apex, the civil law counts all the spaces in both legs of the triangle; the canon law counts only the spaces in the longest leg. Thus, by the canon law, the son of the intestate is in the third degree, alike from the cousin of the intestate, from the uncle of the intestate, and from the grand- father of the intestate, while, by the civil law, the son of the in- testate is in the third degree from the grandfather, the fourth degree from the uncle, and the fifth from the cousin. ^^ It will not be expected that we should exhaust the subject of the Statute of Distributions. It will suffice if we give the fore- 39 Bogert V. Furman, 10 Paige, 496. Bradf. 495 ; Harring v. Coles, 2 id. and eases cited; Sweezey v. Willis, 1 349; Hurtin v. Proal, 3 id. 414. 820. Administratioit of Estate, Etc. 682 going paradigm, showing the mode of computing collateral con- sanguinity, according to the common law, in force in this State ; SecencL Ceusiru s First CousinS- Son, Seit of and the following ready-reference table showing the mode of dis- tribution in a number of supposable cases. 683 Administkation of Estate, Etc. 820. TABLE SHOWIITG MODE OF DISTKIBUTION OF PEE- SONAL PEOPEETY OF INTESTATE. RESIDUE OF PROPERTY IS DISTRIBUTABLE AS FOLLOWS : A. Husband dying survived by wife and a descendant or descend- ants of one or of both. If intestate die lea/oing (1) Wife and child or chil- dren. (2) Wife, child, or children and issue of predeceased chil- dren. (3) Wife and grandchil- dren. (4) Wife and his children by two or more marriages. (5) Wife and her children by a last or former marriage. One- third to wife; residue to child or chil- dren equally, deducting advancements made to such child or children by intestate in his life- time. One-third to wife; residue to child or chil- dren, and grandchildren, the former taking per capita, the latter per stirpes. One-third to wife; residue to grandchildren equally. One-third to wife; residue to intestate's children equally. One-third to wife; residue to intestate's children equally. B. Husband dying survived by wife, but by no descendant of either or of both. (6) Wife only. One-half to wife; residue to next of kin. C. Husband survived by wife and by brother, sister, nephew, or niece, but by no descendant or parent. (T) Wife, and brother, sis- ter, nephew, or niece. One-half to wife; the whole to her when it does not exceed $2,000. If the residue exceeds that sum, wife to have, in addition to one-half, $2,000; residue to brothers and sisters and their representatives. (Doughty v. Stillwell, 1 Bradf. 300.) D. Husband survived by wife and by mother, but by no descend- ants or father. (8) Wife and mother. (9) Wife and mother, brother, sister, nephew, or niece. One-half to wife; residue to mother. One-half to wife ; residue to mother, brother, sister, nephew, and niece equally. See Doughty v. Stillwell, 1 Bradf. 300. E. Husband survived by wife and by father, but by no descendant. (10) Wife and father. One-half to wife; residue to father. §820. Administration of Estate, Etc. 684: EESIDUE OF PROPEETT IS DISTRIBUTABLE AS FOLLOWS : F. Husband survived by wife, but by no descendant, nor by parent, brother, sister, nephew, or niece. If intestate die leaving (ii) Wife only. The whole to the wife. G. Husband dying after wife, survived by a descendant or de- scendants of one or of both. (12) Child. or children. The whole to the children equally. (13) Children and issue of predeceased children. Whole to children per capita, and to issue of deceased children per stirpes. (14) Grandchildren. Equally among the grandchildren. (IB) Children by two or more marriages by him. Equally among all the children. (16) Children by wife's last and a former marriage. Whole to intestate's children equally. H. Husband dying after wife, survived by no descendant; or a man dying unmarried. (17) Father only. Whole to father. (Harring v. Coles, 2 Bradf. 349.) (18) Mother only. Whole to mother. (19) Father and mother. Whole to father. (20) Father, mother, and brothers and sisters. Whole to father. (21) Father and brothers or sisters. Whole to father. See Matter of Cruger, 34 N. Y. Supp. 191. (22) Mother and brothers or sisters. Whole to them equally. (23) Father, mother, brothers or sisters and chil- dren of predeceased brothers or sisters. Whole to father. (24) Father, brothers or sisters, and children of pre- deceased brothers or sisters. Whole to father. (25) Mother, brothers or sisters, and children of pre- deceased brothers or sisters. Whole to mother and brothers and sisters, per capita, and to the children per stirpes. (26) Father, mother, and children of predeceased brothers or sisters. Whole to father. 685 Administeation of Estate, Etc. §820. EESIDUE OF PEOPEETY IS DISTEIBUTABLE AS FOLLOWS: H. Husband dying after wife, survived by no descendant ; or a man dying unmarried. If intestate die leaving (27) Father and children of predeceased brothers or sisters. (28) Mother, and children of predeceased brothers or sisters. (29) Father, mother, chil- dren and grandchildren of predeceased brothers or sis- ters. (30) Father, children and grandchildren of predeceased brothers or sisters. (31) Mother, children and grandchildren of predeceased brothers or sisters. (32^ Brothers or sisters only. (33) Brothers and sisters, and nephews or nieces, chil; dren of predeceased brothers or sisters. ( 3* ) Brothers or sisters and grandnephews or nieces, chil- dren of predeceased brothers' or sisters' deceased children. (35) Brothers or sisters, nephews or nieces and grand- nephews or nieces, children of predeceased brothers or sisters and of their deceased issue. (36) Nephews or nieces, children of predeceased brothers or sisters. (37) Grandnephews or nieces, children of predeceased brothers' or sisters' deceased children. (38) Nephews or nieces, and grandnephews or nieces, children of predeceased brothers or sisters, and of their deceased issue. (39) Brothers or sisters german, and brothers or sis- ters consanguinean. Whole to father. Whole to them equally. Whole to father. Whole to father. Whole to mother and to children of de- ceased brothers and sisters equally; the shares of the latter going to their children per stirpes. Whole to them equally. Whole to brothers and sisters per capita, to children of predeceased brothers and sisters per stirpes. Whole to brothers and sisters per capita, and to grandnephews or nieces per stirpes. Whole to brothers and sisters per capita, and to nephews and nieces, grandnephews and nieces per stirpes. Whole to them equally. Whole to them equally. Whole to nephews and nieces per capita, and to grandnephews and nieces per stirpes. Whole to them equally. §820. Administeation of Estate, Etc. 686 EESIDUE OP PROPERTY IS DISTRIBUTABLE AS FOLLOWS : H. Husband dying after wife, survived by no descendant; or a man dying unmarried. If intestate die leaving (40) Brothers or sisters consanguinean and brothers or sisters uterine. (41) Brothers or sisters consanguinean and uncles or aunts. (42) Brothers and sisters uterine and uncles or aunts. (43) Father and brothers or sisters consanguinean and uterine. (44) Mother and brothers or sisters, consanguinean or uterine. (45) Father, mother, and uncles or aunts. (46) Father and uncles and aunts. (47) Mother and uncles and aunts. (48) Mother, uncles, or aunts, and cousins german, children of predeceased uncles or aunts. (49) Father and cousins german. (50) Mother and cousins german. (51) Aunt or uncle and cousins. (52) Great-nephews and nieces and cousins german. (B3) Cousins german and children and grandchildren of great-great-uncle. (54) Brothers' grandchil- dren and brothers or sisters consanguinean. (55) Cousins german and children of predeceased cou- sins german. Whole to them equally. Whole to brothers and sisters. Whole to brothers and sisters. Whole to father. Whole to mother and brothers equally. and sisters Whole to father. Whole to father. Whole to mother. Whole to mother. Whole to father. Whole to mother. Whole to aunt or berry, 52 How. Pr. uncle. 310.) (Matter of Goose- Equally. Whole to cousins bell, 14 Hun, 551.) equally. (Adee v. Camp- Whole to brothers and sisters equally. Whole to cousins german equally. (Adee v. Campbell, 79 N. Y. 52.) 687 Administration of Estate, Etc. 820. RESIDUE OF PKOPEETY IS DISTKIBUTABLE AS FOLLOWS: H. Husband dying after wife survived by no descendant; or a man dying unmarried. If intestate die leaving (B6) Paternal uncles or aunts and maternal uncles or aunts. (57) Nephews or nieces german and nephews or nieces consanguinean. (58) Uncles or aunts and children of great-uncles or aunts. (59) Uncles or aunts and nieces or nephews. (60) Great-uncles' or aunts' children and children of cousins german. (61) Grandfather and un- cles or aunts. (62) Grandfather and un- cles or aunts consanguinean. (63) Grandfather, grand- mother, and great-uncles or aunts. (64) Grandfather, grand- mother, and mother. ( 65 ) Grandfather or grand- mother and brothers or sis- ters. (66) Great-grandfather and great-uncles' or aunts' chil- dren. (67) Great - grandparents, nephews or nieces and uncles or aunts. ( 68 ) Great- grandfather, great-g randmother, and brothers' or sisters' illegiti- mate children. (69) Father's father and mother's mother. (70) Father's father and mother, and mother's father. Whole to them equally. (Hallett v. Hare, 5 Paige, 315.) Whole to them equally. (Matter of South- worth, 6 Dem. 216 [citing Hallett v. Hare, 5 Paige, 314, and Matter of Suckley, 11 Hun, 344].) Whole to uncles and aunts equally. Whole to them equally. (Hurtin v. Proal, 3 Bradf. 414.) The whole to them equally. The whole to grandfather. (Sweezey v. Willis, 1 Bradf. 495.) Whole to grandfather. Whole to grandfather and grandmother equally. Whole to mother. Whole to them equally. (Hurtin v. Proal, 3 Bra;df. 414. But see contra, Bogert v. Fur- man, 10 Paige Ch. 496; Matter of Marsh, 5 Misc. 428.) Whole to great-grandfather. Whole to them equally. Whole to great-grandfather and great-grand- mother equally. Whole to them equally. (Bogert v. Furman, 10 Paige Ch. 496 ; Sweezey v. Willis, 1 Bradf. 495; Hurtin v. Proal, 3 id. 414; Hill v. Nye, 17 Hun, 457.) Whole to them equally. (Hill v. Nye, 17 Hun, 457.) §820. Administration of Estate, Etc. EESIDTJE OF PEOPEETY IS DISTEIBUTABLE AS FOLLOWS: J. Wife dying, survived by husband, and a descendant or descend- ants of one or of both. If intestate die leaving (Tl) Husband and children of marriage. (T2) Husband, children of marriage, and issue of de- ceased children. (73) Husband and grand- children. (74) Husband and children by the wife's last and a former marriage. One-third to husband; residue to children. (Co. Civ. Proc, § 2734.) One-third to husband; residue to children per capita, and grandchildren per stirpes. One-third to husband; residue to grandchil- dren. One-third to husband; residue to children. K. Wife dying, survived by husband, but by no descendants of either or both. (75) Husband. Whole to husband. (Matter of Harvey, 3 Redf. 214; Robins v. McClure, 100 N. Y. 328.) L. Wife dying after husband, survived by a descendant or descend- ants of one or both. (76) Children. Whole to children equally. (77) Children and issue of predeceased children. Whole to children per capita, and to issue of deceased children per stirpes. (78) Children of husband's last and a former marriage. Whole to wife's children equally. (79) Children of husband's former marriage and sisters. Whole to sisters equally. (Gazlay v. Corn- well, 2 Redf. 139.) (80) Children by two or more marriages of wife. Whole to children equally. M. Wife dying after husband, survived by no descendants of either or both; or by woman dying unmarried. (81) Next of kin. Property distributable under Statute of Dis- tributions, as that of a single man. Administkation of Estate, Etc. § 821. ARTICLE SECOND. THE EIGHTS OF HUSBAjS^D ANT) WIDOW. § 821. Rights of widow — Affinity or relationship by marriage, except in the instance of the husband or wife of the intestate, gives no title to a share of the estate.*" In any and every event, the widow is entitled to have, to her own use absolutely, one-third of the surplus of the personal estate. She takes in her right as widow, and not as next of kin to her husband.*^ Whether she is entitled to receive any portion of the remaining two-thirds depends upon the contingencies mentioned in the statute: 1. If there be*^ no children nor any legal representatives of them, then one-half of the whole surplus shall be allotted to the widow, and the other half distributed to the next of kin entitled under the statute. 2. If there be no descendant, parent, brother or sister, nephew or niece, she is entitled to the whole surplus. 3. But if there be a brother or sister, nephew or niece, and no descendant or parent, she is entitled to one-half of the surplus, as above, and to the whole, if it does not exceed two thousand dol- lars; if it exceeds that sum, then she is entitled to the one-half plus two thousand dollars. In other words, in such a case, she *o Gazlay v. Cornwell, 2 Redf. 139. to extend the meaning of those words, 41 Murdoek v. Ward, 67 N. Y. 387. when used in a testamentary gift by In that case the testator directed his either, so as to include the other, such executors to pay the remainder of his an intention must definitely appear estate to his children, in equal shares ; from the context of other portions of and in case the whole principal should the will. The will of R. created a not be paid to them, or either of them, trust in one-fourth part of her residu- during their lives, then the residue to ary estate for the benefit of her grand- be " equally divided among and paid son B. during his life. Upon his death to the persons entitled thereto as said one-fourth part was given " to their, or either of their, next of kin, such persons as shall be the heirs- according to the laws of the State of at-law and next of kin " of R., in such New York, and as if the same were parts as they would have been respec- personal property, and they, or either tively entitled to, in case B. had of them, had died intestate." By an- owned the same and had died in- other clause, it was provided, that if testate. In an action, among other any of the children should die without tilings, to determine who were entitled issue, his or her share should go to to such part upon the death of B., who the survivors. One of the sons died died leaving a widow and two chil- before his share had been fully paid, dren, him surviving, — Held, that the leaving a widow and one child. In an widow was not entitled to a share action for an interpretation of the therein, but that it went to the ehil- will, — Held, that the widow was not dren. (Piatt v. Mickle, 137 N. Y. entitled to any portion of the residue, 106.) See §§ 94, 269, n. 24. but that the whole thereof belonged *2 The words " if there be,'' in the to the child. Husband and wife are statute, mean, " if the decedent left." not next of kin to each other, and, See Rose v. Clark, 8 Paige, 574 44 §§ 822, 823. Administeation of Estate, Etc. 690 has one-half and two thousand dollars besides, unless the surplus does not exceed two thousand dollars; in which event she takes the whole. 4. If there be no children, and no representatives of them, and no father, but the mother survives, then the widow is entitled to her moiety — one-half — and the mother, and brothers and sisters, or nephews and nieces, take the remainder in equal shares. 5. If there be no child or descendant, but the father survives, the widow is entitled to one-half, and the father one-half. § 822. Widow's dower does not bar her right to distributive share. — The fact that the widow of the testator has taken her dower in her husband's estate does not prevent her taking, under the statute, her distributive share of lapsed or inoperative legacies which are the proceeds of real estate directed to be converted by the will.*^ So a widow to whom her husband devised and bequeathed all his property for life, in lieu of dower, is nevertheless entitled to her distributive share in the remainder of the personalty, which has failed by reason of the incapacity of the legatee.** Her acceptance of a legacy in lieu of dower will not at all affect her right arising under the statute, or from any other source, to the personal prop- erty, as dower can only be had of real property.*^ But a bequest to a widow in lieu of a dower, and all claims against the estate as widow, will, if accepted, prevent her taking a distributive share in lapsed legacies.*® § 823. Divorced wife — A divorced wife, whether the divorce was granted becaiise of the misconduct of herself or her husband, is not entitled on his death, intestate, to administration, nor to a distributive share of his personal estate. The statutory provision, that if the divorce was granted because of the misconduct of the wife, she shall not be entitled " to any distributive share of his personal estate," " is needless and superfluous, and does not indi- cate an intention to confer such right in a case where the miscon- duct was that of the husband.** 43 Parker v. Linden. 44 Hun, 518; Matter of Hodgman, 140 id. 421; 55 Edsall V. Waterbury, 2 Redf. 48. N. Y. Supp. 800. 44Canfield v. Crandall, 4 Dem. HI. «2 R. S. 146, § 48; Co. Civ. Proc, The fact that she cannot now come § 1760, subd. 3. See §§ 95, 347, into possession of her distributive ante. As to effect of divorce upon share does not aflfeet her right to re- dower, see L. 1896, c. 547, § 176. ceive it. ( Sweet v. Chase, 2 N. Y. 73. ) 48 Matter of Ensign, 103 N. Y. 284 ; 45 Hatch V. Baasett, 52 N. Y. 359 ; Wait v. Wait, 4 id. 95 ; Kade v. Lau- Lefevre v. Lefevre, 59 id. 434. ber, 16 Abb. Pr. (N. S.) 288. Com- 46 Matter of Benson, 96 N. Y. 499; pare Schiffer v. Pruden, 64 N. Y. 47; 691 Administration of Estate, Etc. § 824 § 824. Rights of widower — The husband of a womaii dying in- testate, and leaving descendants, is entitled to the same distributive share in the personal estate to which a widow is entitled in the personal estate of her husband.*^ The estates of married women, dying intestate, without leaving surviving descendants, are not distributable under the Statute of Distributions, but by the rule of the common law.^" By the common law, marriage was an abso- lute gift to the husband of the goods and chattels and personal property of which the wife was actually possessed, and of such as came to her during coverture. As to such property, the title was vested in the husband, and upon his death, it went to his repre- sentatives; if the wife died first, it was his property after, as it was before, her death, and as to it, no administration was or is necessary. These common-law rights of the surviving husband to the personal property of his wife dying intestate without de- scendants are not taken away or impaired by the various acts re- lating to married women f^ and the same is exempted from the operation of the Statute of Distributions, the husband being en- titled in preference to the wife's next of kin.^^ This rule of the common law is recognized by the Revised Statutes.^^ The hus- band's rights cannot be affected by the granting of administration to another person,^* nor by the question whether the property, in- cluding choses in action of his wife, were reduced to possession or not,"^ inasmuch as he takes in virtue of his marital right, and not of his right to administration. Hence, in the case of a married woman who had died leaving no descendants and by her will di- vided her personal property between her husband and her collateral Schiffer v. Dietz, 83 id. 300; Renwick 255; Matter of Klingensmith, 58 id. V. Renwiek, 10 Paige, 420. Adultery 375; Fry v. Smitli, 10 Abb. N. C. of wife which has been condoned does 224; Oilman v. McArdle, 12 id. 414, not bar her dower. (Pitts v. Pitts, and cases infra. See Foehner v. 13 Abb. Pr. [N. SO 272; 64 Barb. Huber, 42 App. Div. 439; afTd., 166 482; aflFd., 52 N. Y. 593; 14 Abb. Pr. N. Y. 619. Of course, the intes- [N. S.] 97.) tacy of the wife must be during the *9 Co. Civ. Proc, § 2734, as amended husband's life. In ease a portion of 1893, substantially adopting 2 R. S. her estate is not disposed of by opera- 98, § 79, as amended L. 1867, c. 782, tion of her will, at her husband's § 11. See § 346, ante. death, that portion, on the husband's 50 Watson v. Bonney, 2 Sandf. 405; death, goes to her next of kin. (Kear- McCosker v. Golden, 1 Bradf. 64; Val- ney v. Miss. Soc, 10 Abb. N. C. 274.) lance v. Bauseh, 28 Barb. 635; L. B3 2 R. S. 75, § 29. 1867, c. 782, § 12, and eases infra. 54 Ransom v. Nichols, 22 N. Y. Ill; 51 L. 1848, e. 200; L. 1849, c. 375; Robins v. McClure, 100 id. 328, 336. L. 1860, e. 90; L. 1862, c. 172; L. See Foehner v. Huber, supra. 1867, c. 782. 55 Ryder v. Hulse, 24 N. Y. 372; 52 Barnes v. Underwood, 47 N. Y. Oilman v. McArdle, 12 Abb. N. C. 351; Ransom v. Nichols, 22 id. 110; 414; Olmsted v. Keyes, 85 N. Y. 602. Ryder v. Hulse, 24 id. 372 ; Matter of See Westervelt v. Gregg, 12 id. 210. McLeod, 32 Misc. 229; 66 N. Y.- Supp. §§ 825, 826. Administeation op Estate, Etc. 692 relatives, her surviving husband is entitled to the whole of a legacy which had lapsed by the death of a legatee before the testa- trix; and letters of administration are not necessary to protect his interest.^* § 825. Next of kin of husband or wife Under certain circum- stances, the next of kin of the husband or wife of an intestate are deemed the next of kin of the decedent. If there be no husband or wife surviving and no children, representatives of a child, or next of kin, then such personal property as may have been re- ceived by the deceased from his or her husband or wife, as the case may be, by will or intestacy, shall be distributed equally to the next of kin of such husband or wife.^'^ AETICLE THIRD. EIGHTS OF LINEAL KINDRED. § 826. Distributive shares of children The descendants of an intestate take the whole of the surplus of his personal estate, less the widow's share, to the exclusion of all other persons, whether belonging to the ascending line of lineals, or to the collateral line of relations. If there be no widow, they take the whole, absolutely, in equal shares. Relatives, including descendants and next of kin, begotten before the intestate's death, but born thereafter, take in the same manner as if they had been born in the intestate's life- time, and had survived him.®^ Children of the half blood, that is, children of the intestate by a different father or mother, take equally with those of the whole blood, that is, those born of the same parents ; and the representatives of children of the half blood take in the same manner as representatives of the whole blood.^" If any of the intestate's descendants or next of kin died before 56 Kobins v. MeClure, 100 N. Y, in supplementary proceedings on the 328; distinguishing Barnes v. Under- judgment) is entitled to intervene, yet wood, 47 id. 351. It seems, that such judgment creditor or receiver where the husband, as executor, has can receive nothing from the adminis- control over the property of his de- trator as such, because all that he has ceased wife, for all purposes of admin- is his own in his right as husband, istration he occupies the same posi- (Matter of Gilligan, 18 St. Rep. 812; tion as if he were administrator, and 1 Connoly, 137.) he acquires the same rights. (lb.) 87 Co. Civ. Proc, § 2732, subd. 16 Where the husband so entitled has (1901). taken possession of his deceased wife's B8 Co. Civ. Proc, § 2732, as amended assets, the fact that he has taken out 1893, subd. 14. letters does not change the nature or 59 Co. Civ. Proc., § 2732, as amended source of his title ; and although, upon 1893, subd. 13. See Matter of Suck- his accounting, a, judgment creditor of ley, 11 Hun, 344, and ante, § 805. the husband (or a receiver appointed 693 Administration op Estate, Etc. §§ 827-829. him, the equal share of the child so dying goes to the legal repre- sentative of such child. Those who take in their own right re- ceive equal shares, and those who take by representation receive the share to which the parent whom they represent, if living, would have been entitled.^" A child expressly disinherited by his father's will, as to realty, is not prevented from sharing the personalty under the Statute of Distributions.®^ § 827. Shares of illegitimate children — By the Kevised Stat- utes,*^ illegitimate children were not entitled to inherit from either the father or the mother; but this rule is now modified,*^ so that, in the case of a mother dying intestate, without lawful issue, her illegitimate children are entitled to inherit from her, as if they were legitimate. § 828. Shares of parents — The parents of an intestate are not entitled to share in the surplus, if there are descendants. (1) If there are no descendants, then the share of the parents depends upon whether there is a widow. If there are no descendants and no widow, the father takes the whole; but the mother takes the whole only in case there are not only no descendants, widow and father, but no brother, sister, or representative of brother or sis- ter. If there are brothers and sisters, the widow takes one-half, and the other half goes to the mother and the brothers and sisters, or their representatives. (2) If there be a widow, but no child or descendant, the father takes one-half and the widow the other half; and the mother takes the same share where the father is dead. § 829. Mother of illegitimate — If the intestate is an illegiti- mate, his mother will take the whole surplus in ease there is no child or descendant or widow. Such mother is entitled to letters of administration, in exclusion of all other persons. If the mother do not survive the intestate, then his relatives on the part of the mother take in the same manner as if he had been legitimate, and they are entitled to letters of administration, in the same order.** 60 Co. Civ. Proc, § 2732, as amended Hubbard, 29 App. Div. 166 ; 51 N. Y 1893, subd. 11. Supp. 526. 61 Eauehfuss v. Eauchfuss, 2 Dem. 62 i R. g. 754, § 19. 271. See Lynes V. Townsend, 33 N. Y. «3 Co. Civ. Proc, § 2732, subd. 15 561; Henriques v. Sterling, 26 App. (1897) ; L. 1855, c. 547, § 1. See § 816a, Div. 30; 49 N. Y. Supp. 1071; Hen- ante. The illegitimacy of a, person riques v. Yale University, 28 App. will not be presumed but must be Div. 354; 51 N. Y. Supp. 284; proved by those contesting his rights. Sehwencke v. Hoffner, 18 App. Div. (Matter of Matthews, 153 N Y 443 ) 182; 45 N. Y. Supp. 937; Wood v. 64 Co. Civ. Proc, § 2732, as amended 1893, subd. 9, See ante, § 804. § 830. Administbation of Estate, Etc. 694 § 830. Advancements to children — " If any child of such de- ceased person have been advanced by the deceased, by settlement or portion of real or personal property, the value thereof shall be reckoned with that part of the surplus of the personal property, which remains to be distributed among the children; and if such advancement be equal or superior to the amount, which, according to the preceding section, would be distributed to such child, as his share of such surplus and advancement, such child and hi^J descendants shall be excluded from any share in the distribution of such surplus. If such advancement be not equal to such amount, such child, or his descendants, shall be entitled to receive so much only, as is suflSeient to make all the shares of all the children, in such surplus and advancement, to be equal, as near as can be esti- mated. The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement, within the meaning of this sec- tion, nor shall the foregoing provisions of this section apply in any case where there is any real property of the intestate to descend to his heirs. Where there is a surplus of pe;rsonal property to be distributed, and the advancement consisted of personal property, or where a deficiency in the adjustment of an advancement of real property is chargeable on personal property, the decree for distribution, in the Surrogate's Court, must adjust all the ad- vancements which have not been previously adjusted by the judg- ment of a court of competent jurisdiction. For that purpose, if any person to be affected by the decree is not a party to the pro- ceeding, the surrogate must cause him to be brought in by a sup- plemental citation." *^ The term " advancement," used in the stat- ute, is of much narrower signification than the general word " ad- vances," which includes any gift or loan.®® Not only a child, but 65 Co. Civ. Proc, § 2733, as amended varices for maintaining and educating 1893; adopting 2 E. S. 97, §§ 76, 77, child, see Vail v. Vail, 10 Barb. 69; 78, as amended by L. 1867, c. 782, ex- MeEae v. McEae, 3 Bradf. 199, and eept the last two sentences, which are ante, § 811. As to distinction between new. For the provisions of the Stat- an advancement and a loan, see Bruce ute of Descents in reference to ad- v. Griscom, 9 Hun, 280; affd., 70 N. vancements, see § 811, ante. The pro- Y. 612. Payment by a parent of the visions of the original statute, above, purchase price of a farm, the deed of were held to apply in cases of total which is taken in the name of a child, intestacy. ( Thompson v. Carmichael, is presumptively an advancement, and 3 Sandf. Ch. 127.) But see Hays v. the burden is on the child to show Hibbard, 3 Eedf. 28 ; Matter of Quinn, that it was a gift and not an advance- 2 L. Bui. 59. For the rule where ment. (Sweet v. Northrup, 12 Week, there is real estate, see Hicks v. Gil- Dig. 377.) dersleeve, 4 Abb. Pr. 3 ; Terry v. Day- «6 Chase v. Ewing, 51 Barb. 597, ton, 31 Barb. .524; Parker v. McCluer, 612. 3 Abb. Ct. App. Dec. 454, As to ad- 695 Administration of Estate, Etc. § 831. the descendants of a child of an intestate, who died before him, are entitled, on the final distribution, when it consists exclusively of personal property, to the benefit of advancements made by him in his lifetime to his other children; and such advancements are to be taken into consideration, in determining . the distributive shares. The word " children," as used in the statute, includes all the descendants of the intestate entitled to share in his estate.^^ AETICLE EOURTH. EIGHTS OF COLLATERAL KINDEED. § 831. When collaterals take — The next of kin, referred to in the statute, are to be ascertained by the rules before mentioned, which are the same as those which determine who are entitled to letters of administration. It has been doubted whether a decree adjudging a person entitled, as of next of kin, to letters of ad- ministration, would not be final and conclusive, as to his rights, on the distribution of the estate.®* We have already incidentally stated the cases in which the collateral kindred take any share in an intestate's personal estate. The cases in which brothers and sis- ters and their representatives take less than" the whole surplus are stated in the statute as follows : " 3. If the deceased leaves a widow, and no descendant, parent, brother or sister, nephew or niece, the widow shall be entitled to the whole surplus ; but if there be a brother or sister, nephew or niece, and no descendant or parent, the widow shall be entitled to one-half of the surplus as above provided, and to the whole of the residue if it does not exceed two thousand dollars; if the residue exceeds that sum, she shall receive, in addition to the one- half, two thousand dollars, and the remainder shall be distributed to the brothers and sisters, and their representatives. " 6. If the deceased leave no children, and no representatives of them, and no father, and leaves a widow and a mother, the one- half not distributed to the widow shall be distributed in equal shares to his mother and brothers and sisters, or the representatives of such brothers and sisters ; and if there be no widow, the whole surplus shall be distributed in like manner to the mother, and to 67 Beebe v. Estabrook, 79 N. Y. 246, and construed together, as the two where it was said that the provisions statutes are in pari materia. of the Statute of Distributions and of 68 Ferrie v. Public Adm'r, 3 Bradf. the Statute of Descents, on the sub- 151, 171. ject of advancements, are to be taken §§ 832, 833. Administeation of Estate, Etc. 696 the brothers and sisters, or the representatives of such brothers and sisters." The brothers and sisters, nephews and nieces, therefore, share, in certain cases, with the widow, or with the widow and mother. If there be no lineal kindred they take the whole surplus. Where the intestate left no descendant, parent, brother, sister, descendant of any brother or sister, uncle, or aunt, but left first cousins, and the children of deceased first cousins, the first cousins are entitled to take, to the exclusion of said children.** AETICLE FIFTH. PEOCEBDINGS TO COMPEL PAYMENT OF DISTBIBUTIVE SHARES. § 832. Distributing surplus. — The last duty of an administrator in the administration of an intestate's estate, is to distribute the surplus to and among the husband or widow and the next of kin. The sum of money which is so to be distributed, and the respective shares of the distributees, cannot usually be exactly determined, except upon a final judicial settlement of the account. If upon such accounting, " any part of the estate remains, and is ready to be distributed, * * * the decree must direct the payment and distribution thereof to the persons so entitled, according to their respective rights." ™ Such a decree, and a distribution made thereunder, will not, of course, discharge the accounting party from personal liability for the claims of parties who were not made parties to the proceedings, or whose claim the administrator had knowledge, or ought to have had knowledge, of, before making the distribution. He is bound to ascertain, before making distri- bution, that there are no unpaid taxes on the general estate,''^ or transfer tax payable upon the individual shares of the next of kin.^^ § 833. Payment in advance of final accounting The statute contemplates, however, the likelihood that, within one year after the grant of letters, the reduction of the estate to possession, and the ascertaining and payment of claims will have been so far ad- vanced that the court may determine, with some degree of cer- tainty, whether there will be a surplus, and, if so; the amount which may be distributed in advance of the final decree. It, there- 69 Adee v. Campbell, 79 N. Y. 52. 71 McMahon v. Jonea, 14 Abb. N. C. See Matter of Davenport, 67 App. Div. 406. 191. 72 See ante, § 714. 70 Co. Civ. Proc, § 2743. 697 Administeation of Estate, Etc. § 833. fore, provides that a person -who is entitled to a distributive share may, at any time after one year from the grant of letters, insti- tute a proceeding to compel the payment of his share, or of its just proportional part.'^ As in the case of legacies, so a distributive share, or some part of it, may be ordered paid, although a year has not expired, where it is necessary for the support or education of the distributee, upon the filing of a bond,''* etc. The statutory remedies, by action'^ and by special proceeding, for the recovery of disiributive shares are so nearly identical with those for the recovery of legacies, which we have already fully detailed, that it will be unnecessary to say more here than to refer to a previous page. The subject will also be necessarily adverted to when we come to consider the proceedings on accounting. It should be observed, however, that in proceedings by persons claiming to be entitled as widow, or as next of kin, for the pay- ment of their shares, the scope for controversy, as to the rights of the petitioner, is much larger than in cases of application for the payment of legacies. Questions as to the validity of the intestate's marriage with the person claiming to be his widow, and as to the legitimacy and identity of persons claiming to be children of, or next of kin to, the intestate, frequently arise, involving the rights of all the persons interested in the estate. As notice of the appli- cation for the advance payment of a share is not required to- be given to the other next of kin, the statute wisely provides that where the administrator, by his answer, denies the validity or legality of the claim, even upon information or belief, the peti- TSCo. Civ. Proc, § 2722, as amended ruled. (Matter of Dunham, 1 Con- 1893. See § 781, ante. Pending pro- noly, 323.) See ante, § 787. ceedings for an accounting and dis- 75 An action at law is not sustain- tribution, no other independent pro- able for a distributive share of an in- ceeding should he allowed to compel testate's property, to which plaintiff even a partial distribution or settle- is entitled as one of th6 next of kin, ment of the estate or the payment of unless there be evidence that he holds a distributive share. ( Bruen's Estate, the money, not as executor, but in 3 L. Bui. 88.) his individual character. (Fischer v. 74 Co. Civ. Proc, § 2723, as amended Fischer, 50 N. Y. Super. [J. &S.] 74.) 1893 (former § 2719). In Clock v. A foreign £~dministrator, to be liable Chadeagne (10 Hun, 97), it was de- here for a distributive share, must be eided that the proceeding to compel shown to be in possession of assets the payment of a distributive share within this State. (Vermilya -v. must be commenced within the time Beatty, 6 Barb. 429.) An action can- that an action may be brought. Wood not be maintained by one of the next V. Eusco (4 Redf. 380), so far as it of kin of an intestate against the holds that the time begins to run only others to recover his distributive share from the time the claimant first of the personal estate in their hands, learns of the appointment of the ad- but an administrator should be ap- ministrator, under the principle of pointed to make distribution. (Pal- Co. Civ. Proc, § 410, subd. 1, is over- mer v. Green, 63 Hun, 6: 17 N. Y. Supp. 441.) § 833. Administeation of Estate, Etc. 698 tion must be dismissed withoiat further hearing.^* It is a general principle that there can he no legal distribution without adminis- tration. The share of a deceased distributee cannot be paid to his next of kin, but only to his personal representative.^^ Without the direction of the surrogate, the share of a minor cannot be paid, even to his general guardian.''* 76 Co. Civ. Proe., § 2722, as amended Proc, § 2743.) See Clock v. Cha- 1893. See ante, § 784. deagne, 10 Hun, 97. 77 Matter of Black, 1 Tuck. 145. It 78Willcox v. Smith, 26 Barb. 316; may be paid to an assignee. ( Co. Civ. Rose v. Clark, 8 Paige, 574. See Co. Civ. Proc, § 2746; ante, § 792. CHAPTER XVIII. DISPOSITION OF REAL ESTATE TO PAY DECE- DENT'S DEBTS. TITLE FIEST. NATURE AND JURISDICTION OF THE PROCEEDING. § 834. liability of real estate for debts The primary fund for the payment of debts and legacies is the personal estate, and the land cannot be resorted to for that purpose, until the personalty is exhausted in the ordinary course of administration, and under authority of the statute.-' Besides the remedy given to creditors of a decedent against his heirs and devisees for the recovery of the debts, to the extent of the lands descended or devised, pro- vided the personal estate is insufficient or has been exhausted,^ 1 Kingsland v. Murray, 133 N. Y. 170; 44 St. Eep. 515. In Hogan v. Kavanaugh (138 N. Y. 417), it was held, that an action to have a legacy declared to be a charge upon the tes- tator's real estate was not a suitable and appropriate proceeding for ascer- taining who were creditors, and the amounts of their claims, or to close up the estate, without administration or a resort to the procedure prescribed by statute for the proof of debts and payment thereof from the personalty, or, if insufficient, the sale of the realty for that purpose. It appearing in such an action that no executors were appointed, and no administration, with the will annexed or otherwise, had been a,pplied for, and that the judgment therein, after adjudging the legacies to be a charge, provided for the sale of the land for the payment out of the proceeds, first, of the debts of the testator, and then of the lega- cies if the surplus was sufficient; if not, to apply it pro rata, — Held, that so much of the judgment as provided for a sale for the payment of the debts was error; also, that the legacies [699] could not be enforced by sale with- out the presence of the administrator of the deceased. 2 See Co. Civ. Proc, § 1843; Par- sons V. Bowne, 7 Paige, 354; Wam- baugh V. Gates, 1 How. App. Cas. 247 ; 11 Paige, 505; Schermerhorn v. Bar- hydt, 9 id. 28; Whitaker v. Young, 2 Cow. 569; Jewett v. Keenholts, 16 Barb. 193; Ferguson v. Broome, 1 Bradf. 11; Herkimer v. Rice, 27 N. Y. 163; Lockwood v. Fawcett, 17 Hun, 146 ; Rogers v. Patterson, 79' id. 483 ; Adams v. Fassett, 149 N. Y. 61; Brater v. Hopper, 77 id. 244; De Crano v. Moore, 50 App. Div. 361 ; Cunningham v. Parker, 146 N. Y. 29 ; Mattesou v. Palser, 56 App. Div. 91 ; Deyo V. Morss, 30 id. 56. Prior to the Code the heirs took, subject to the payment of the debt of their ancestor, to the extent of any deficiency of his personalty applicable thereto. The right of creditors to assert and estab- lish their claims against the heirs was not created by the Revised Statutes ; their provisions relating thereto (2 R. S. 452, §§ 32, 33) simply changed somewhat the manner of enforcing § 835. DisposiTioiif OF Keal Estate 700 the statute furnishes a remedy by a special proceeding, in a Sur- rogate's Court, for the sale of the real estate and the application of the proceeds to pay the decedent's debts and funeral expenses, if the personalty is not sufficient for that purpose,* at the instance either of a creditor or of the executor or administrator. § 835. Object and construction of the statute As the title to real property vests instantly in the heir or devisee upon the death of the owner, the proceedings by creditors, or by the ex- ecutor or administrator, to reach it are, in their nature, an at- tack upon a vested title, for the purpose of diverting the property from its apparent owner, to satisfy demands which, perhaps, were previously unliquidated or undisclosed. The statute which au- thorizes these proceedings and regulates the method of procedure is, therefore, framed with many safeguards, which are intended chiefly to secure the following objects : 1. A convenient remedy for the satisfaction of creditors fro rata} 2. A just protection to the title of the heir or devisee, or those claiming under them, and a reasonable limit to the period during which that title may be thus attacked. The complexity of the statutory provisions, which were framed with a view to these purposes, made it diffi- cult to conduct such proceedings without leaving ground after- ward to question their precis© conformity to those provisions. In consequence of the doubt cast upon many titles thereby, an act was passed in 1850,^ which was subseqtiently amended and extended, declaring that all sales made by virtue of these pro- ceedings should be deemed as valid as if made by a court of orig- inal general jurisdiction, thus authoritatively recognizing a third element to be considered in the construction of the statute, namely, the certainty of titles and the protection of purchasers at such sales.® As the statutory authority given by this statute is in derogation of the common law,'^ it must be strictly pursued; every requisite of the statute having the semblance of benefit to the owner must be strictly complied with.* that right. (Read v. Patterson, 134 Bennett v. Grain, 4 St. Rep. 158; N. Y. 128.) See Allen v. Sandford, 28 Kowing v. Moran, 5 Dem. 56. St. Rep. 510; 8 N. Y. Supp. 182. BL. 1850, c. 82; L. 1857, c. 82, § 3; 3 See Kingsland v. Murray, supra; L. 1869, t. 260. Hogan V. Kavanaugh, supra. An ae- 6 For a history of this remedy, see tion should not be brought in the Su- Ferguson v. Broome, 1 Bradf. 10 ; preme Court for the purpose of selling Moore v. Moore, 14 Barb. 28. 11 decedent's real estate to pay debts. 1 See Matter of Bellesheim. 17 St. (Letson v. Evans, 33 Misc. 437; 68 Rep. 10; IN. Y. Supp. 276. N. Y. Supp. 421. ) 8 Corwin v. Merritt, 3 Barb. 341 ; 4 See Matter of Fox, 92 N. Y. 96; Ackley v. Dygert, 33 id. 176; Bloom 701 To Pay Decedent's Debts. §§ 836, 837. § 836. History of the statute. — In the original statute," the ex- ecutor or administrator was authorized, on discovering or sus- pecting that the personal assets would be insufficient to pay the debts, to present, as soon as conveniently might be, a just and true account to the judge of probate, and to request his aid in the premises.^* The statute, prior to the revision of 1830, con- tained no express limit of the time within which such application should be made; but it was held that the application must be made with due diligence and in a reasonable time (one year being considered as a proper limit in ordinary cases); and that, if the application was not so made, the judge or surrogate had, from the nature of his judicial trust, a discretion to reject the appli- cation, for such a secret and hidden lien ought not to be encour- aged.'^ In the revision of 1830, the right to apply was limited to three years after the granting of letters. In harmony with this limitation, creditors were restrained during the same period from bringing suits against the heirs or devisees to recover, from them, debts of the decedent, by reason of their having shared in his property. By the original statute, also, creditors were not allowed to proceed in this way, but the statute simply gave au- thority to the executor or administrator to do so. The Revised Statutes authorized the creditors to initiate the proceedings, if, after the executor or administrator had rendered an account, it appeared that there were not sufficient assets.'^ With this gen- eral view of the principal changes that have been made, we pass to the consideration of the matters upon which the jurisdiction of the court depends, and the method of procedure. § 837. Nature of proceedings.- This remedy, under the present Code, is clearly a special proceeding as distinguished from an action;'^ but it is not a proceeding in rem, within the rule which would make the adjudication therein conclusive upon all the world.'* ITeither is it a suit against the heirs or devisees, within the meaning of the statute,'® which requires that such a suit, to y. Burdick, 1 Hill, 131, and cases amended by L. 1843, c. 172; L. 1847, infra. e. 298; L. 1869, c. 845; L. 1873, c. 211. 9 1 Greenl. Laws, 237 ; Act of April 13 And the same rule formerly ob- 4, 1786. tained. See Skidmore v. Eomaine, 2 10 See the substance of the statute Bradf. 122. stated in Mooers v. White, 6 Johns. l* Schneider v. McFarland, 2 N. Y Ch. 376. 459. 11 See Mooers v. White, supra. 15 2 R. S. 109, § 53 ; Co. Civ. Proc, 12 2 R. S. 108, § 48; superseded § 1844. afterward by L. 1837, c. 460, § 72, as §§ 838, 839. Disposition of Real Estate 702 charge the defendants with the debts of the decedent, must be brought within three years from the time of granting letters.-'* § 838. Jurisdictional facts — The existence of the jurisdictional facts specified by the statute have always been treated by the courts as essential to the validity of the sale.-'^ If, however, the surrogate once acquires jurisdiction, irregularity or error in the subsequent proceedings does not, in general, render his decree void, nor afford ground for impeaching it collaterally; the rem- edy is an appeal.^^ In the application of these principles under the existing statute, some conflict has arisen in determining what matters are jurisdictional, and what are not; and, on the whole, the courts have, with great strictness, applied, to titles derived under these sales, the familiar rule, that to divest a person of his property by a special statutory proceeding, every direction of the statute must be strictly complied with. Numerous cases in the books indicate the inconvenience and hardship, and the un- certainty of titles, which have necessarily resulted, to an extent far beyond the substantial protection of the interests of heirs and devisees, which it is the only object of that rule to maintain.-'® § 839. What surrogate has jurisdiction. — The application for a sale, etc., of the property must be made to the Surrogate's Court from which letters were issued;^" and, as has already appeared, the mere existence of property of a nonresident decedent, liable to be so disposed of, situated in the surrogate's county, confers jurisdiction to grant letters.^^ Such Surrogate's Court has juris- diction to decree the disposition of the property wherever the same may be situated, within the limits of the State, and is not confined to that found within its ovm county.^^ 18 Mead v. Jenkins, 4 Eedf. 369. proceedings, and the retrospective 17 Ackley v. Dygert, 33 Barb. 177 ; effect of the acts confirming titles, see Rigney v. Coles, 6 Bosw. 479; Van Fox v. Lipe, 24 Wend. 164; Jackson Deusen v. S-weet, 51 N. Y. 378. v. Irwin, 10 Wend. 441 ; Chandler v. 18 Atkins v. Kinnan, 20 Wend. 241 ; Northrop, 24 Barb. 129 ; Forbes v. Farrington v. King, 1 Bradf. 182, and Halsey, 26 N. Y. 53. cases cited infra. 20 Co. Civ. Proc, § 2750. The Su- 19 The Act of 1850 (c. 82), and its preme Court has no jurisdiction to amendments (L. 1869, c. 260; L. 1872, entertain this proceeding. (Hoey v. e. 92; L. 1878, c. 129), now replaced Kinney, \0 Abb. Pr. 400; Letson v. by Co. Civ. Proc, §§ 2784, 2785, were Evans, 33 Misc. 437; 68 N. Y. Supp. intended to obviate these inconveni- 421.) See Little Falls Nat. Bank v. enees, by declaring that sales made King, 53 App. Div. 541; 65 N. Y. under the statute should be as effect- Supp. 1010. ual as if made by order of a court 21 See Co. Civ. Proc, § 2476 ; ante, having original general jurisdiction. § 144. The rule was otherwise under But none of these statutes cure juris- the Revised Statutes. See HoUister v. dictional defects. ( Stilwell v. Swarth- Holliater, 10 How. Pr. 532 ; Hart v. out, 81 N. Y. 109.) As to the effect Coltrain, 19 Wend. 378. of changes in the statutes on pending 22 Long v. Olmsted, 3 Dem. 581. 703 To Pay Decedent's Debts. §§ 840, 841. § 840. What property liable to be applied The property which is subject to such a disposition is either (1) real property, of which a decedent died seized,^^ or (2) the interest of a decedent in real property, held by him under a contract for the purchase thereof, made either with him, or with a person from whom he derived his interest; but this does not include either (a) property which is devised, expressly charged with the payment of debts or funeral expenses,^* or (&) which is exempted from levy and sale by virtue of an execution,^'* or (c) which is, by the terms of decedent's will, " subject to a valid power of sale " for the payment of debts or funeral expenses.^® Real property not so expressly charged, or which is not made subject to a valid power of sale for that pur- pose, or is not exempt as aforesaid, is subject to the operation of the statute. § 841. Decedent's interest. — Under the Statute of 1786, only legal estates could be sold;^^ an equitable interest not being within that, as it is within the present, statute. A vendee's interest in a contract for purchase, even in a parol contract, if taken out of the operation of the Statute of Frauds by part performance, is, therefore, subject to sale under the statute. ^^ "Where, however, the contract was rescinded after the purchaser's death, for failure to pay the purchase money, and the purchaser's heir, who was 23 If the decedent was seized at the to his farm was not erroneous. But time of his death, it is immaterial it seems that such fact is not material that a contest was pending as to his in determining the contestant's rights, title. (Hewitt v. Hewitt, 3 Bradf. as the agreement gave them equitable 265.) interests in the farm, which they were 24 While a specific creditor whose entitled to have protected. ( lb. ) In claim is, by the will, charged upon Matter of Williams (I Misc. 35; 22 land, cannot maintain the proceeding, N. Y. Supp. 906 ) , a lessor agreed to other unsecured creditors may do so. pay his lessee for building a barn on (Little Falls Nat. Banlc v. King, 53 the leased premises, and that if he App. Div. 541; 65 N. Y. Supp. 1010; died, during the term, the lessee Matter of Richmond, 168 N. Y. 385.) " shall have a legal claim against my 25 Co. Civ. Proc, § 2749. estate for the reasonable value of said 28 Co. Civ. Proc, § 2759, subd. 4. barn." At the time of making the 27 Livingston v. Livingston, 3 Johns, agreement the lessor had no person- Ch. 148. alty, and he died during the term 28 Richmond v. Foote, 3 Lans. 244. without paying for the barn. Held, In Matter of Chipman ( 26 St. Rep. that the contract was not an equitable 797; 7 N. Y. Supp. 372; affg. s. c, mortgage on the land, but an admis- suh nom. Matter of Rider, 6 Dem. sion of an indebtedness which the 473), testator agreed that, if con- lessee could enforce by a proceeding testants would go on his farm and to sell the deceased lessor's land for take care of him for life, they should payment of debts. A husband's right have all his property. They per- of curtesy, which still exists (Arrow- formed the condition and he devised smith v. Arrowsmith, 8 Hun, 606), the property to them. In a proceed- does not prevent the sale, etc., of his ing to sell the farm to pay debts, intestate wife's lands; but he will ae- Held, on appeal, that a finding of the quire the same interest in the surplus jury that he died seized of the title as he had in the land itself. (lb.) §842. Disposition of Real Estate 704 in possession, was ousted under a judgment in ejectment, the land cannot be reached by these proceedings to pay the deceased pur- chaser's debts, although the heir had acquired complete title by a deed from the seller.^' § 842. Where there is a power of sale — The question which most frequently arises, under the clause of the section referred to, is as to whether the will contains a valid power of sale of the dece- dent's real property for the payment of his debts, etc. The principle which governs this class of cases is this : That " when- ever a power or authority to sell is given by will to the executor without limitation, and not in terms made discretionary, and its exercise is rendered necessary by the scope of the will and its declared purposes, the authority is to be deemed imperative, and a direction to sell will be implied, provided the design and pur- pose of the testator is unequivocal, and the implication so strong as to leave no substantial doubt, and his intention cannot other- wise be carried out."^" In such a ease, the remedy of this pro- ceeding cannot be resorted to.^^ But where the pov/er of sale is 29 Goodwin v. Nelin, 2 Abb. Ct. App. Dec. 258. 30 Matter of Gantert, 136 N. Y. 106 ; 48 St. Rep. 889. In that case, tes- tator gave all his property, real and personal, to executors and trustees, upon certain specified trusts with " full power and authority to sell and convey any and all " the real estate. Held, that the power to sell was im- perative, and the exercise of it might be compelled by the creditor; and that, as the debtor had thus provided another remedy equally prompt and effective in its operation, the statu- tory remedy could not be resorted to. The court said : " We are referred to many other cases where it has been held that a power of sale is not avail- able for the payment of debts, but they are all cases where the power was either discretionary, or limited to some other specific purpose, or where it could not be exercised without breaking up and destroying the scheme of the will and frustrating the inten- tion of the testator;" citing Kinnier v. Rogers, 42 N. Y. 531; Scholle v. Seholle, 113 id. 261; Matter of Mc- Comb, 117 id. 378; Matter of Bing- ham, 127 id. 296. See also Chamber- lain V. Taylor, 105 id. 194; Hobson V. Hale, 95 id. 598. In O'Flynn v. Powers (136 N. Y. 412), the will de- vised the residuary estate to the execu- tor in trust and authorized him " at any time before the final division and settlement " of the estate, for any pur- pose " which, in his discretion, may render it advisable so to do," to sell any part or portion of the real estate. Held, that the power of sale given the executor could be lawfully exercised for the payment of an honest debt, in no way invalid or outlawed, owing to himself. 31 An implied power of sale, if actual and valid, is sufficient to prevent this proceeding. (Coogan v. Ockershauaen, 55 N. Y. Super. [J. & S.] 286; s. c, 11 Civ. Proc. Rep. 315; affd., 18 St. Rep. 366.) To the same effect. Matter of Hesdra (2 Connoly, 514; 20 N. Y. Supp. 79), where the will, after di- recting that testator's lawful debts be paid, and giving certain legacies, pro- vided that " the real and personal es- tate, wherever found, shall be disposed of as deemed best by my executor." Held, that this latter provision gave the executor a valid power of sale to pay debts, which defeated the proceed- ing. A will which, " after my lawful debts and those of my brother are paid," gave the estate to executors and directed them to convert it and distribute the proceeds in a manner prescribed, — Held, not to confer a, power to sell real estate to pay debts, and that the proceeding was maintain- 705 To Pay Decedent's Debts. §843. not imperative, but rests in the discretion of the executor whether he will exercise it or not, a sale may be forced by creditors by this proceeding.^^ § 843. Where lands are charged with payment of debts An intention to charge the payment of debts upon a devise of real estate will not be construed from the use by testator of formal words, or commonly employed phrases. Thus, the opening words of the will — " after all my lawful and just debts are paid, I give," etc. — do not amount to an expression or declaration of the mode in which the testator intended his debts to be paid; and they do not charge the real estate with their payment f^ they merely pro- vide for what the law required, if there had been no such clause, to wit, that the debts should be a charge on the property of the testator.^* To justify a finding of an intent on the testator's part to make the debts a charge on his real estate, such intent able. (Matter of Karge, 45 St. Rep. 916; 18 N. Y. Supp. 724.) So, too, where property was given to executors to " dispose of the same as though I •died intestate," accompanied with a power of sale. (Parker v. Beer, 65 App. Div. 598; 72 N. Y. Supp. 955.) In Matter of Davids (5 Dem. 14), the estate consisted wholly of real prop- erty. The will, after certain bequests, directed the payment of testator's debts and funeral expenses, and pro- vided that his entire estate should be sold and turned into cash as soon after his death as should be deemed advisa- hle. Held, that the real property was " subject to a valid power of sale for the payment of debts." Russell v. Russell (36 N. Y. 581) was distin- guished on the ground that in that ease the power of sale was for the sole "benefit of legatees, and not generally. See Dennis v. Jones, 1 Dem. 80; Mat- ter of Rosenfield, 10 Civ. Proc. Rep. 201; 5 St. Rep. 339; 5 Dem. 251; Mat- ter of Coutant, 24 Misc. 350 ; 53 K Y. Sunp. 713. 32 Matter of Johnson, 18 App. Div. 371; 46 N. Y. Supp. 53; Matter of lieroy, 67 Hun, 13; sub nom. Matter of Campbell, 21 N. Y. Supp. 685. In that case, testator, whose will con- tained no mention of his debts nor di- rection for their payment, after giv- ing certain legacies, devised the resi- due of his estate to his executors, in trust, to receive the rents and profits during the lifatime of his wife, and apply thsm to thfe support of his fam- 45' ily, and after her death he devised the remainder to his children. By a sub- sequent clause he empowered his ex- ecutors, if they should deem it to be for the best interests of his estate, to sell any of his real estate. Held, on appeal from an order of the surrogate denying the application of certain creditors for a sale of his reril estate, that the application should not have been refused; that the real estate of the decedent was not expressly charged with the payment of his debts, and, therefore, the creditors were entitled to take proceedings for its sale, and that the power of sale given to the executors was discretionary and not imperative, and, unless imperative, the creditors could maintain the proceed- ings. 33 Matter of City of Rochester, 110 N. Y. 159; s. c. as City of Rochester v. Smith, 17 St. Rep. 146; Cunningham V. Parker, 146 N. Y. 29; 65 St. Rep. 774; Matter of Van Vleck, 32 Misc. 419; Matter of O'Brien, 39 App. Div. 321; 56 N. Y. Supp. 925; Matter of McKay, 24 Misc 255; 53 N. Y. Supp. 563 ; Matter of Grotrian, 30 Misc. 23 ; 63 N. Y. Supp. 996. The mere inade- quacy of the personal property to pay the debts is not a circumstance from which an intention to charge the real property therewith can be inferred, (lb.) To the same effect, see Clift v. Moses, 116 N. Y. 144; Matter of Bing- ham, 127 id. 296. 34 Smith V. Soper, 32 Hun, 46. §§ 844, 845. Disposition of Real Estate 706 must appear from express direction or be clearly gathered from the provisions of the will.^^ "Debts and legacies stand upon a different basis, and, consequently, words that would indicate an intention to charge one on real estate might not convey any such intention as to the other." ^® § 844. Lands exempt — The statute exempts, from its operation, property which is exempted from levy and sale by virtue of an execution. Thus a seat or pew occupied in a place of public worship ;^^ and land set apart as a family or private burying- ground, properly designated by recording, etc., and not exceeding in extent one-fourth of an acre, etc., are exempt ;^^ and so are cemeteries. ^^ A lot of land with one or more buildings, not ex- ceeding $1,000 in value, owned and occupied by a householder having a family, as a residence, properly designated, is exempt from execution, and consequently from disposition under this proceeding to pay debts.*" § 845. For what purpose a sale, etc., may be had The statute permits the proceeding to be taken only for the payment of the decedent's debts or funeral expenses.*' The latter are not strictly debts due from the decedent, though they are a charge against the estate; and they were not, until recently, within the statute. But the statute does not authorize the proceeding where there are no debts except those incurred in the administration of the es- tate,*^ but the proceeding is authorized though there are no ssciift V. Moses, 116 N. Y. 144. 37 Co. Civ. Proc, § 1390. Compare Matter of Fox, 52 id. 530; 38 Co. Civ. Proc, §§ 1395, 1396. White V. Kane (51 N. Y. Super. [J. & 39 L. 1877, c. 31. S.] 295; 7 Civ. Proc. Rep. 267), where 40 Co. Civ. Proc, §§ 1397, 1398. See it was held, that a devise to testator's also as to homesteads, §§ 1399, 1400- wife, " after all my lawful debts are 1404. Real estate bought with the paid and discharged," charged the debts pension money of the decedent may be upon the devise. In Smith v. Coup sold in a proceeding for the purpose ( 6 Dem. 45 ) , the disposing clause of of the payment of his debts, the ex- the will commenced with the words emption from debts not extending be- " after all my just debts are paid," and yond the decease of the pensioner, then gave specific devises. Held, that (Matter of Liddle, 35 Misc. 173; 71 this brought the case within the excep- N. Y. Supp. 474. ) tions, and the court had no jurisdic- 41 Co. Civ. Proc, § 2750 ; not lega- tion to dispose of the property. Where cies. (Matter of Connor, 1 L. Bui. 8.) there is a general direction to satisfy " Funeral expenses " will include a. mortgages on real estate out of income, reasonable charge for a suitable head- without specifying the method by stone. But an expenditure of $500 which such purpose is to be eflfeetu- for a headstone will not be allowed ated, query, whether the court has when the estate does not exceed $8,000. power to carry out the same by a sale (Owens v. Bloomer, 14 Hun, 296.) for a term of years? (Matter of See ante, § 549. Fisher, 4 Misc. 46.) 42 Matter of Cornwall, 1 Tuck. 250; 38 Per Haight, J., in Clift v. Moses, Smith v. Meakim, 2^ Dem. 129; s. c. supra. as Matter of Meakim, 5 Civ. Proc. 707 To Pay Decedent's Debts. § 845. claims against the estate except expenses of the decedent's funeral.*^ Claims against the estate which were not debts of the decedent cannot be made the basis of these proceedings, such as costs awarded against the estate since decedent's death;** nor costs in an action against the surviving partner of decedent upon a firm debt ;*® nor can the claim of the widow, and administratrix, against her husband's estate for maintaining their infant chil- dren;*® nor the claim of the husband and executor for medical attendance paid for by him, since he is primarily liable therefor ;" nor can the claim of the representative to be reimbursed for debts paid, and for his disbursements and commissions.*^ But claims incurred in legal proceedings instituted by the committee of a decedent who was a lunatic, and allowed by the Supreme Court and adjudged valid claims against the legal representa- tives in the same manner as if they had been debts contracted by the lunatic in his lifetime, are valid claims which may be allowed by the surrogate.*^ So taxes accruing subsequent to the date of decedent's death are chargeable upon the land, and an administrator who has redeemed the property sold for unpaid taxes, is subrogated to the right of the State against the property, and may institute this proceeding ;°'' but where the executor is also the life tenant, he cannot be allowed for taxes, or for the principal and interest of mortgages paid by him.^^ Eep. 421; Matter of Quatlander, 29 Pitch v. Witbeck, 2 Barb. Ch. 161. Misc. 566; 61 N. Y. Supp. 1064. But In Shute v. Shute (5 Dem. 1), a bal- see Shute v. Shute, 5 Dem. 1. Dur- ance found due the administrator on ing pendency of an action against an his prior accounting was directed to executor for misappropriation, he died, be paid out of the proceeds of sale, and his executor was substituted; although it represented sums paid by judgment was recovered with costs, the administrator for expenses of ad- both of which defendant was directed ministration, and not upon a debt of to pay out of the estate, — Held, that the intestate. the judgment creditor was not enti- 49 Kowing v. Moran, 5 Dem. 56. tied to a preference, but only to a pro But a claim of counsel for services rata share, and that the costs were rendered to such committee in excess properly disallowed as a claim payable of the amount allowed by the court out of the proceeds of a sale of the is against the committee personally, real estate. (Matter of Fox, 92 N. Y. and cannot be allowed as a debt of 93.) the decedent. (lb.) In Skidmore v. 43 Matter of King, 10 Civ. Proc. Romaine (2 Bradf. 122), a debt in- Rep. 175. curred for necessaries furnished to a 44 Matter of Foley, 39 App. Div. person of weak and impaired mind 248; 57 N. Y. Supp. 131. was allowed as a debt against his 45 Matter of Stowell, 15 Misc. 533 ; estate. 37 N. Y. Supp. 1127. 50 Jones v. LeBaron, 3 Dem. 37. 46 Woodruff V. Cook, 2 Edw. 259. Compare Ball v. Miller, 17 How. Pr. 47 Matter of Very, 24 Misc. 139; 53 300; Livingston v. Newkirk, 3 Johns. N. Y. Soipp. 389. Ch. 312. 48 Ball V. Miller, 17 How. Pr. 300; 51 Matter of Very, 24 Misc. 139; 53 Gilchrist v. Eea, 9 Paige, 66. See N. Y. Supp. 389. § 846. Disposition of Eeal Estate 708 Under the statute, debts of a testator, for which, after the lapse of three years, the sole devisee is liable, may be allowed, in proceedings to sell the latter's real property. ^^ TITLE SECOND. PEOCUREMENT OF DECEEE. § 846. When application to be made — In order to fix a certain period after which hona fide purchasers'^ will be protected, and actions may be maintained against heirs and devisees personally,** the statute prescribes^^ that the application may be made to the proper surrogate at any time within three years after letters were first duly granted in this State; that is, three years from the date of the original grant of letters, and not (in case of a change of administration) from the time letters were granted to the administrator who made the sale.'^ As the law stood prior to the Repealing Act of 1880, a creditor could not commence the proceeding until after the representative had rendered his ac- count, and, consequently, the proceeding was stayed by a " statu- tory prohibition" within the meaning of that term as used in section 406 of the Code, providing that the time of the continu- ance of such a stay is not to be taken as a part of the time limited for the commencement of an action.'^ But under the present 52 Matter of Fielding, 30 Misc. 700; years prior to September 1, 1880, 64 N. Y. Supp. 569. when the eighteenth chapter of the 53 See Mead v. Jenkins, 95 N. Y. 31. Code went into effect, were not cut off 54 Sloeirm v. English, 62 N. Y. 494 ; by the three years' limitation of this Parkinson v. Jacobson, 18 Hun, 353; section, but, as they existed at that Smith V. Soper, 32 id. 46; Jewett v. time, were saved by the provision Keenholts, 16 Barb. 193. (§ 3352) which enacts that nothing 55 Co. Civ. Proc, § 2750. contained in any provision of that 69Slocum v. English, supra. See portion of the Code (save as excepted) Fonda v. Chapman, 23 Hun, 119; U. renders ineffectual or impairs any S. L. Ins. Co. V. Jordan, 5 Redf. 207. right accrued or established before the If the petition is filed and the citations provision takes effect, and that, for issued within three years after the the purpose of enforcing such a right, granting of letters, the proceeding is the statutes in force on the day before timely, although the citation is re- the provision takes effect, are deemed turnable after the expiration of that to remain in force. (O'Flynn v. Pow- period. (Matter of Topping, 18 Civ. ers, 136 N. Y. 412.) This, in effect, Proc. Rep. 115; 29 St. Rep. 211; Oly- overrules U. S. Trust Co. v. Jordan phant v. Phyfe, 48 App. Div. 1; 62 (5 Redf. 207), where it was held, N. Y. Supp. 688; affd., 166 N. Y. 630. that section 2750 applied to a case So, too, where the petition was filed where letters were issued more than within the three years, but the cita- three years before September 1, 1880; tion not issued tor four years there- and also Carman v. Brown (4 Dem. after. (Matter of Van Vleck, 32 Misc. 96). In the last-named case, the de- 419.) cedent died October 1, 1868, indebted 57 Mead v. Jenkins, 95 N. Y. 31. to C. on simple contract for a sum The rights of creditors of decedents which had become due on April 1, who died, and upon whose estates let- 1868, leaving a will which was ad- ters had been granted more than three mitted to probate and letters issued T09 To Pay Decedent's Debts. § 846. Code, a creditor may institute the proceeding at any time after letters granted, and no previous accounting is required. It is the intention of the present statute to restrict the right of the creditor or representative to the three years, and not to extend the period of limitation indefinitely, so as to give a creditor three years after the grant of letters, regardless of the term or period which may have elapsed before such letters were issued. ^^ During this period of three years, the creditors have a kind of statutory lien upon the deceased debtor's real estate ;^^ after the expiration of three years, the debts may be enforced against the heirs and devisees, and they then cease to be a lien or charge upon the real estate,®" except as against the heirs or devisees.''^ During this period of three years, the heirs and devisees may sell and convey, but purchasers take title at their ,peril, and the land in their hands is subject to the same liability to be thus reached, in case the assets prove deficient, as it would have been in the hands of the heir or devisee;®^ and, on the same groimds, a sale in partition between the heirs will not preclude a subsequent sale for payment of debts.^^ "Where more than three years have on October 19, 1868. In June, 1871, tate to pay debts, may have expired, a judgment for the amount of the Section 2750 does not discharge the claim was recovered against the ex- land from liability for debts after the ecutors, who, in July, 1880, volunta- expiration of such time, so long as it rily rendered their account, showing remains in the legatees or heirs-at- insufficient assets to pay debts. On law, since such limitation is intended May 17, 1886, C. instituted a special only for the protection of iona fide proceeding for the sale of the real purchasers after the lapse of such property of decedent for the payment time. (Matter of Callaghan, 69 Hun, of his debts. Held, that as C.'s claim 161; 23 N. Y. Supp. 378.) was barred by the Statute of Limita- 62 Where, after the proceeding has tions, the application should be denied, been dismissed, but before the time 68 Church V. Olendorf, 49 Hun, 439. to appeal has expired, one takes a, 59 Piatt V. Piatt, 105 N. Y. 488; mortgage on the property, he does so Fonda v. Chapman, 23 Hun, 119; at the risk of a reversal of the de- Hyde V. Tanner, 1 Barb. 75; Wilson v. cree. (Olyphant v. Phyfe, 48 App. Wilson, 13 id. 252; Waring v. War- Div. 1; 62 N. Y. Supp. 688; affd., ing,'3 Abb. Pr. 246. 166 K. Y. 630. See Cunningham «o Piatt V. Piatt, supra; White v. v. Whitford, 74 Hun, 273; 26 N. Kane, 51 N. Y. Super. (J. & S.) 295; Y. Supp. 575. In Hyde v. Tanner, 1 How. Pr. (N". S.) 382; 7 Civ. Proc. (1 Barb. 75), where the mortgagee of Kep. 267. the decedent relinquished his mort- al Hence, when there is a deficiency gage, without payment, and took a in the personal estate, decedent's new one from the heir, it was held, debts and funeral expenses are enti- that it should be deemed to have been tied to be paid out of surplus moneys done under mistake of fact as to the arising from foreclosure sales of his existence or amount of debts, and as real estate, paid into the Surrogate's to insufficiency of personal assets. Court under section 2798 of the Code, and that the mortgagee must be pro- although the three years from the date tected. of issuance of the original letters upon «3 Hall v. Partridge, 10 How. Pr. the decedent's estate, within which, 188; Mead v. Jenkins, 29 Hun, 253; by force of section 2750, creditors 95 N. Y. 31. See Matter of Dusen- can apply to the Surrogate's Court bury, 34 Misc. 666; 70 N. Y. Supp. for the sale of the decedent's real es- 725. § 848. Disposition of Real Estate 710 elapsed after the granting of letters, the premises are not liable to a sale in such proceedings, where they have once vested in a purchaser for value and in good faith, although subsequently, and at the time of the commencement of the proceedings, they have re-vested in the devisee under the decedent's will.®* § 848. Creditor's time extended, if claim in litigation ^"The time during which an action is pending in a court of record, between a creditor and an executor or administrator of the estate, is not a part of the time limited "for presenting a petition, founded upon a debt, which was in controversy in the action; if the cred- itor has, before the expiration of the time so limited, filed, in the clerk's office of the county where the real property is situated, a notice of the pendency of the action; specifying the names of the parties, the object of the action, and, if the creditor's debt is made the foundation of a counterclaim, the nature of the counterclaim; containing a description of the property in that county to be affected thereby; and stating that it will be held as security for any judgment obtained in the action." ®® Where no evidence is given that the cause of action alleged was contested, except proof of the bringing of the action, and that it had been pending six months at the time of filing the petition, it will be presumed that the claim was disputed and that the alleged debt was in controversy in the action.*® The statute also provides that "whenever an executor, admin- istrator, or creditor of a deceased person shall have commenced, or shall hereafter commence, an action in any court of compe- tent jurisdiction of this State, for the purpose of setting aside any fraudulent conveyance of, or incumbrance upon, any real estate of such deceased person, and such action shall have been decided in favor of such executor, administrator, or creditor, such executor, administrator, or creditor, may, at any time within three years after the final determination of such action, have and main- tain an action or proceeding against the proper parties, in any court of competent jurisdiction of this State, for a sale of such 64 Matter of Dodge, 105 N. Y. 585. eeled in like manner, or a specified «5 Co. Civ. Proe., § 2751. The orig- portion of the property affected inal statute did not extend to a case thereby may be discharged from the where the creditor had interposed a lien thereof, by the order of the court counterclaim. (L. 1873, c. 211.) A in which the action is pending, made ndtice so filed must be recorded and upon the application of a person hav- indexed, and may be canceled, as pre- ing an interest in the real property, scribed in the Code (§§ 1670-1674), upon notice to the creditor, and upon with respect to the notice of pendency such terms as justice requires." (lb.) of an action affecting the title to real e* Matter of Bingham, 127 N. Y. property; and "it may also be can- 296; 38 St. Eep. 765. Til To Pay Decedeistt's Debts. § 849. real estate, and for a distribution of the proceeds of such real estate among the creditors of such deceased person, and other persons entitled to the same, as may be directed by the judgment in such action." ®^ § 849. Who may make the application. — The application"* may be made by " an executor or administrator, whether sole or joined in the letters with another, ^^ other than a temporary ad- ministrator;" ^^ or it may be made by any person " holding a judgment lien upon decedent's real property at the time of his death, or any other creditor of the decedent, other than a creditor by a mortgage, which is a lien upon the decedent's real property." Doubtless it can be made by one having a claim for funeral ex- penses, as he is now deemed a creditor of the decedent.''^ The words ^' executor or administrator " do not include an ancillary execu- tor or administrator.^^ A creditor whose original claim is barred, cannot maintain this proceeding. It does not alter the case that he obtained a judgment on the claim, against the executor, before it was barred, as the judgment is not conclusive evidence of the indebtedness, which must be established in this proceeding.'^ A creditor who has assigned his debt to another cannot present the petition, but the assignee, as the real creditor, may do so.'* It is sufficient if the creditor states in the petition any one item of indebtedness, the amount, and to whom it is owing,'" even though «7Co. Civ. Proc, § 2751, as amended Granger, 12 Barb. 392; Wood v. Me- 1887. It seems tnat, for the purpose Chesney, 40 id. 417. of preserving a claim from the three ™ As to a temporary administra- years' limitation, a lis pendens may tor's power, see Co. Civ. Proe., § 2675; be filed in proceedings upon a refer- § 412, ante. As to an ancillary ex- ence of the claim against the exeeu- ecutor or administrator, see Co. Civ. tors under the statute. (Matter of Proc, § 2702; § 318, ante. Bingham, 127 N. Y. 296; 38 St. Rep. 71 See Co. Civ. Proc, § 2514, subd. 765.) 3, as amended 1900. Previous to that 68 Co. Civ. Proc, § 2750, as amended amendment it vpas ,held otherwise. 1894 (L. 1894, c 735). (Matter of Corwin, 10 Misc. 196; 31 69 Where the widow and executrix N. Y. Supp. 426.) paid out of her individual estate the '2 Matter of Ladd, 5 Civ. Proc. Rep. debts and funeral expenses, which the 50. See Co. Civ. Proc, § 2702. As personal property was insufficient to to a proceeding by an administrator meet, — Held, that she was entitled to de ionis non, where it appears that be subrogated to the rights of such the personal property in the hands of creditors and to institute proceedings a former administrator was sufficient for the sale of real estate. (Matter to pay debts, see Matter of Kingsland, of O'Brien, 39 App. Div. 321; 56 N. Y. 60 Hun, 116; 38 St. Rep. 590; aflFd., Supp. 925.) The provision, as to 133 N. Y. 170; 44 St. Rep. 515. the joinder of representatives, settles 'SRaynor v. Gordon, 23 Hun, 264. a question left in doubt by Fitch v. See -post, §§ 856, 861. Witbeck, 2 Barb. Ch. 161; Jackson v. 74 Butler v. Emmett, 8 Paige, 12. Robinson, 4 Wend. 436 ; Sanford v. t6 Matter of German Bank, 39 Hun, 181. § 850. Disposition of Real Estate 712 it appears that the devisees have released their interests to the petitioner.^® § 850. Requisites of the petition — The petition, vi^hich must be verified/^ must set forth the following matters, as nearly as the petitioner can, upon diligent inquiry, ascertaiu them:'^ 1. The unpaid debts of the decedent, and the name of each creditor, or person claiming to be a creditor;'^* and the name of each person holding, or claiming to hold, a lien by judgment docketed against decedent before his decease, and also the several dates of docket of all or any of such judgment liens, and whether such judgment lien or liens affect the whole or part of the dece- dent's real property; and the amount of the unpaid funeral ex- penses of the decedent, if any, and the name of each person to whom any sum is due by reason thereof. 2. A general description of all the decedent's real property, and interest in real property, within the State, which may be disposed of by the proceeding;*" a statement of the value of each distinct parcel;*^ whether it is improved or not; whether it is occupied or not; and, if occupied, the name of each occupant; whether it is incumbered by a mortgage lien or liens, together with a statement of the amount due or claimed to be due thereon. Where the petition describes an interest in a contract for the purchase of real property, the valu9 of the interest must be stated, and also the value of, and the other particulars, specified in this subdivision, relating to, the real property to which the interest attaches. T6 Matter of Howard, 11 Misc. 224. which the decedent died seized. Held, 77 Go. Civ. Proc, § 842. See Rich- that the allegation was suflficient; mond V. Foot, 3 Lans. 244; Matter of that it was not necessary that it Hotchkiss, 17 Misc. 670. should be made positively and in un- 78 Co. Civ. Proc., § 2752, as amended qualified terms. The omission from 1894. the petition of a parcel of real estate 79 Dennis v. Jones, 1 Dem. 81. owned by the decedent, and which 80 As to the necessity of such a de- might have been ascertained by dili- scription, see Mead v. Sherwood, 4 gent inquiry, will not invalidate the Eedf. 352. In Matter of Igglesden proceeding, but will entitle a party (3 Redf. 375), it was held, that the interested in another parcel which is petition should give all the land of included, to an abatement of the pro- which the decedent died seized. portionate amount which would have 81 "A distinct parcel of real prop- been chargeable against the omitted erty is a part of the property which parcel. (Matter of Bingham, 127 N. is or may be set off by boundary lines, Y. 296; 38 St. Rep. 765.) It is not as distinguished from an undivided a violation of the section that one share or interest therein." (Co. Civ. valuation is given of several lots, Proc, § 3343, subd. 16.) In Matter which lie together and form but a of German Bank (39 Hun, 181), the single parcel. (Matter of McGee, 5 petition described fully several parcels App. Div. 527 ; 38 N. Y. Supp. 1062 ; of real estate, and alleged, upon infor- Matter of Georgi, 35 Misc. 685 ; 72 mation and belief, that they were all N. Y. Supp. 431.) the real estate within this State of Y13 To Pay Decedent's Debts. § 850. 3. The names of the husband or wife, and of all the heirs and devisees of the decedent, and also of every other person claim- ing under them, or either of them, stating who, if any, are in- fants; the age of each infant, and the name of his general guard- ian, if any; and also, if the petition is presented by a creditor, or a judgment lienor, the name of each executor or administrator. 4. If the petition is presented by an executor or administrator, the amount of personal property which has come to his hands, and those of his co-executors or co-administrators, if any; the application thereof, and the amount which may yet be realized therefrom.*^ These allegations are of jurisdictional facts; if the petition omits to set forth any one of such facts, the court does not ac- quire jurisdiction, and no valid decree for a sale can be entered. A petition which fails to state a material jurisdictional fact can- not afterward, in the course of the proceedings, be amended so as to supply the omission.^^ But the petition need not contain negative averments, such as, that there are no unpaid funeral expenses,^* or that the property is " not subject to a valid power of sale for the payment of debts," etc.*^ But a petition which 82 Under the original statutes the 2 Bdw. 259.) See Richmond v. Foote presentation of an account, or infer- (3 Laus. 244) ; Matter of Williams (1 mation substantially equivalent to an Misc. 35), for what is a sufficient account of the personal estate and statement of " the amount of personal debts, was held essential to the surro- property " which has come to the gate's jurisdiction, where the applica- representative's hands, and of " the tion was made by the personal repre- application thereof." sentatives. (Corwin v. Merritt, 3 83 Dennis v. Jones, 1 Dem. 80 ; Mead Barb. 341; Jackson v. Robinson, 4 v. Jenkins, 4 Redf. 369; Ackley v. Wend. 436; Jackson v. Crawfords, 12 Dygert, 33 Barb. 176. The jurisdic- id. 533.) But if the application was tion of the court depends upon the made at about the time of filing the petition and not upon extrinsic facts, inventory, the latter, if it gave all the (Wood v. McChesney, 40 Barb. 417.) information required, was a sufficient Compare Matter of Laird, 42 Hun, account for the purpose of the stat- 136; Forbes v. Halsey, 26 N. Y. 53. ute. (Bloom v. Burdiek, 1 Hill, 130.) In other respects,' an amendment will In other words, the statement of the be allowed, e. g., so as to add the assets and debts which was required name of an omitted mortgagee (Mat- by the statute was not an account in ter of Ibert, 48 App. Div. 510; 62 N. the technical sense. A specification of Y. Supp. 1051), or to correct errors the names of creditors and the con- in names of parties cited and insert sideration of the debts was not requi- the value of different parcels. (Mat- site. (Forbes V. Halsey, 26 N. Y. 53.) ter of Georgi, 35 Misc. 685.) See But a statement of the total of the Matter of Miller, 2 App. Div. 615; 37 inventory and the total of the debts N. Y. Supp. 447. was held insufficient. (Van Nostrand 84 Matter of German Bank, 39 Hun, v. Wright, Hill & D. Supp. 260. And 181. If no reference is made to see Atkins v. Kinnan, 20 Wend. 241.) funeral expenses, it will be presumed The fact that the account presented to that none existed. ( lb. ) the surrogate was false did not affect 85 Matter of Haig, 6 Dem. 454; 17 his jurisdiction. (Woodruff v. Cook, St. Rep. 827; 13 N. Y. Supp. 285. § 851. Disposition of Real Estate 714 fails to mention the name of the heir/® or to state the nature of the land and the names of the occupants, or of " a person claiming an interest," ^^ or the ages of the heirs,*^ is fatally de- fective. A creditor's petition need not give the date of the grant of letters, if it avers such grant generally and states facts shovr- ing that the proceeding vi^as commenced within three years there- after;** and in a proceeding not commenced within three years after the issue of letters, though maintainable by reason of the debt having been in controversy, and a lis pendens duly filed, it is not necessary for the petition to state that the debt was "founded upon a debt which was in controversy in the action," as that requirement may be effectually supplied by proof.^" The petition may refer to a former petition filed in the same matter for a statement of the necessary facts, and two or more petitions may be taken together as part of the same proceeding;®^ and under the Revised Statutes, it was held that papers on file in the surrogate's ofiice taken in conjunction with the petition, although not referred to therein, might be sufficient to confer jurisdic- tion.®^ If upon the " diligent inquiry " mentioned in the section, any of the material facts required to be set forth cannot be ascer- tained, such inability must be shown to the court's satisfaction; and the surrogate must thereupon inquire into the matter, as prescribed in a case where a petitioner cannot ascertain the name of a person to be cited. ®^ § 851. The prayer of the petition — -'The petition must pray for a decree directing the disposition of the decedent's real property, or interest in a contract for the purchase of real property, or so much thereof as is necessary, for the payment of his debts or funeral expenses; and that the necessary parties may be cited to 86 Jenkins v. Young, 35 Hun, 569, affidavit that certain persons, not and cases cited; Matter of Slater, 17 including such mortgagee, had or Misc. 474; 41 N. Y. Supp. 534. A claimed an interest, was filed, and cita- statement in the petition that certain tions were issued to them and to such persons named are the heirs, is equiv- mortgagee, whereupon the latter ap- alent to a statement that such persons peared, filed an answer and entered are all the heirs. (Greenblatt v. Her- upon a trial of the merits, thus sub- mann, 144 N. Y. 13; 62 St. Rep. 859.) jectiug himself to the jurisdiction of 8T Kammerrer v. Ziegler, 1 Dem. the court in the proceedings. 177. See Matter of Bingham, infra. si Richmond v. Foote, 3 Lans. 244. 88 Mead v. Sherwood, 4 Redf. 352. 92 Forbes v. Halsey, 26 N. Y. 53. It 89 Matter of Haig, supra. is extremely doubtful whether this 90 Matter of Bingham, 127 N. Y. would suffice under the present stat- 296; 38 St. Rep. 765. It was also ute. held, in that case, that the omission 93 Co. Civ. Proc., § 2753. For the to name a mortgagee in the original proceedings upon the inquiry referred petition or citation did not invalidate to, see Co. Civ. Proc, § 2518; ante, the proceeding where afterward an § 75. 715 To Pay Decedent's Debts. §§ 852, 853. show cause why such a decree should not be made.®* Where the petition states facts showing that an attempt to mortgage or lease would be idle because of heavy incumbrances on the prop- erty, and the inadequate income derived therefrom, it is proper to pray simply for a sale.^'^ § 852. Accounting by representative may be required. — Under the Revised Statutes, on the representative's petition, it was essential to jurisdiction that an account of the personal estate should accompany the petition;®* and the proceeding could not be instituted by a creditor until after the representative had ac- counted, which could not be compelled until after eighteen months from the grant of letters.®'^ But under the present Code, a settlement of the representative's accounts is not a prerequisite to granting a citation on the petition.®^ If the condition of the personal estate is unknown to the petitioning creditor, that is one of the matters for inquiry, above referred to. For the pur- pose of such inquiry, "if the petition is presented by a creditor, or judgment lienor, the surrogate may, by order, require the executor or administrator to render such an account or other statement as he deems necessary." ®® § 853. Jurisdiction of the person of parties. — As this proceeding is hostile to the heirs, devisees, and others interested in the real property, the surrogate must acquire jurisdiction of their per- sons, or the sale will be void.*^ Although the statute does not expressly require the representative to be cited, it is the obvioxis 94 Co. Civ. Proc, § 2750. The Code 96 Bloom v. Burdiek, 1 Hill, 131; says, " and that the necessary parties, Van Nostrand v. Wright, Hill & D. as prescribed in the subsequent sec- Supp. 260. See ante, § 850, n. 82. By tions of this title, may be cited," etc. L. 1896, c. 993, it was provided that no It is not very clear who must be sale made under any of the provisions named; but it seems that the neees- of 2 R. S., tit. 4, c. 6, should be in- sary parties are ( 1 ) those named in validated for the failure of the repre- the petition, and (2) those whom the sentative to file an inventory before surrogate may add, under Co. Civ. presenting the petition for the sale, Proc, § 2754. See Kammerrer v. if such petition substantially showed Ziegler, 1 Dem. 177. that he had not been able to obtain 95 Matter of Dolan, 88 N. Y. 309 ; possession of any personal estate of revg. 26 Hun, 46, and affg. 2 Dem. the decedent. 611. In Sibley v. Waffle (16 N. Y. 97 Skidmore v. Romaine, 2 Bradf. 180), it was held competent for the 122; Sanford v. Granger, 12 Barb. 392. applicant to petition for the sale of 98 Shute v. Shute, 5 Dem. 1 ; Matter real property, without asking for au- of Plopper, 15 Misc. 202; 37 N. Y. thority to mortgage or lease, and for Supp. 33. the surrogate to act on such petition, 99 Co. Civ. Proc, § 2753, as amended and order a sale, if it appeared by the 1894. order that he inquired whether a sale l Schneider v. McFarland, 2 N. Y. would be more beneficial than a mort- 459; Matter of John, 21 Civ. Proc. gage or lease, and determined that it Rep. 326; 18 N. Y. Supp. 172. would. §854. Disposition of Real Estate 716 intention that he should be made a party to a creditor's proceed- ing.^ A remainderman, whether his interest in the decedent's property is vested or contingent, is a necessary party.^ Holders of mortgage are not necessary parties, since any disposition made of the property under the decree will be subject to such liens;* nor were judgment lienors required to be served, prior to the amendment of 1894. § 854. Infant parties — If any of the parties are infants, they should be represented by a duly appointed guardian ad litem; otherwise the whole proceeding will be void, the court being without jurisdiction.^ If the infant is regularly served with the citation, an appointment of a guardian at a later stage of the proceeding may, it seems, cure the omission to appoint one at the outset.® 2 Kammerrer v. Ziegler, 1 Dem. 177 ; Turner v. Amsdell, 3 id. 19. 3 Wilson V. White, 109 N. Y. 59. In that case, testator devised the land to his son for life, remainder to the son's children " should he leave any, but should there be no issue or descend- ants, him surviving, then to be equally divided among my brothers' and sis- ters' children, or issue." Held, that although the son had living children, the children of testator's brothers and sisters had a contingent remainder in the property and were necessary par- ties to the proceeding. * Matter of Haig, 6 Dem. 454. As to necessity of serving legatees and devisees, see Matter of Dolan, 88 N. Y. 309. 5 Bloom V. Burdick, 1 Hill, 131; Schneider v. McFarland, 2 N. Y. 459; Corwin v. Merritt, 3 Barb. 341. 6 Dennis v. Jones, 1 Dem. 81. See Ackley v. Dygert, 33 Barb. 176; Pinckney v. Smith, 26 Hun, 524. In Price V. Fenn (3 Dem. 341; a. c. as Estate of Fenn, 8 Oiv. Proc. Eep. 206) , the citation having been duly served upon certain infants, interested in the estate, and a special guardian having been, before the hearing, appointed for each, upon his parent's application, without the notice to the infant re- quired by section 2531, the purchasers at the sale under the surrogate's de- cree objected to the title upon the ground of the omissipn of such notice. Held, under section 2784, subdivision 1, that the omission in question was not of such a character as that it " would affect the title of a purchaser at a sale made pursuant to the directions contained in a judgment rendered by the Supreme Court in an action," and the objection taken was overruled. In Matter of Mahoney (34 Hun, 501), on appeal from an order directing a pur- chaser to complete, it was objected that the guardian of certain infant heirs had not been appointed in ac- cordance with the provisions of the Code and that there was no publica- tion of the citation. The surrogate, after the sale, issued a supplemental citation, and made a supplemental decree amending the defects nunc pro tunc, and thereupon made an order requiring the appellant to complete his purchase. Held, that the defects were substantial, and, therefore, not amendable, the steps in question being absolute prerequisites to the sale. The purchaser had a right to a title beyond reasonable doubt, and free from dangerous uncertainties. In Jenkins v. Young (43 Hun, 194), the citation was pereonally served upon an infant over fourteen, as required by the act. Held, that the failure of the surrogate to appoint a special guardian to care for such infant's in- terests upon the return of the order, did not deprive the Surrogate's Court of jurisdiction of the proceedings or render the sale made thereunder liable to be attacked, in a subsequent action of ejectment brought by such infant's heir. In Stilwell v. Swarthout (81 N. Y. 109 ) , a guardian ad litem was ap- pointed, but it did not appear that he had consented to become such, or that he acted as such, or was notified of his 117 To Pay Decedent's Debts. §§ 855, 856. §855. Citation, when to issue; its contents. — When the surro- gate is satisfied that all the facts required to be set forth in the petition " have been ascertained, as far as they can be, upon dili- gent inquiry, and it appears to him that the debts, judgment liens, and funeral expenses, or either, cannot be paid, without resort- ing to the real property, or interest in real property, he must issue a citation according to the prayer of the petition. If, upon the inquiry, it appears to the surrogate that any heir or devisee, or person claiming an interest in the property under an heir or devisee, is not named in the petition, the citation must also be directed to him.'' Unless the executor or administrator has caused to be published, as prescribed by law, a notice requiring creditors to present their claims,* and the time for the presenta- tion thereof, pursuant to the notice, has elapsed, the citation must be directed, generally, to all other creditors of the decedent, as well as to the creditors named." ® Like every other citation it must be made returnable on a day certain, designated therein, not more than four months from the date thereof.^" Under the former statute, the citation (order to show cause) was required to be returnable not less than six weeks from the time of making it ; hence, when made returnable in less than that time, the surrogate acquired no jurisdiction, and all proceedings founded thereon were void." § 856. Hearing upon return of citation. — " Upon the return of the citation, the surrogate must proceed to hear the allegations and proofs of the parties. A creditor of the decedent, or a judg- ment lienor, or a person having a claim for unpaid funeral ex- penses, although not named in the citation, may present and appointment, but it appeared aflfirma- heirs, on appeal, see Patterson v. tively that he acted as counsel for the Hamilton, id. 665. claimant. Held, that even if his ap- 8 § 636, ante. pearance for the infant was a waiver 9 Co. Civ. Proc, § 2754. The man- of a jurisdictional defect in the cita- ner and proof of service of the cita- tion, his consent at least was essential, tion are governed by the general As to irregularities in appointing a regulations detailed in c. Ill, ante. special guardian which are not fatal Where no advertisement for creditors to proceedings, see Matter of Luce, 17 has been published, a citation directed Week. Dig. 35. to the creditors therein named and to 7 In a, creditor's proceeding, one who all other creditors, must be published has purchased the property at a, ref- in accordance with Code Civ. Proc, eree's sale in partition among the § 2523. (Matter of Georgi, 44 App. heirs, is a " person claiming an in- Div. 180 ; 60 N. Y. Supp. 772 ; affd., terest " in the property under an heir, without opinion, in 162 N. Y. 660 ; and a necessary party, and so is the Matter of Slater, 17 Misc. 474; 41 N. executor or administrator (Kammer- Y. Supp. 534.) rer v. Ziegler, 1 Dem. 177), and also 10 C o. Civ. Proc. . § 2519,; ante, § 74. legatees where the legacies are charged n-HLlllVell v." Bwarthout, 81 N. Y. upon real estate. (Matter of Dolan, 109; Havens v. Sherman, 42 Barb. 636. 26 Hun, 46.) As to bringing in the § 857. Disposition of Real Estate 718 prove his debt or lien and thus make himself a party to the special proceeding. A creditor of the decedent, whose claim is not yet due, may present and prove his debt and have the same established, upon a rebate of legal interest, and thus make him- self a party to the special proceeding. An heir or devisee, or a person claiming under an heir or devisee, of the property in question, although not named in the citation, may contest the necessity of applying the property to the payment of debts, judgment liens, or funeral expenses, or the validity of a debt due or unpaid, or of any judgment lien, represented as existing against the decedent, or the reasonableness of the funeral ex- penses ;^^ may interpose any defense to the whole or any part thereof; and for that purpose may make himself a party to the special proceeding." ^* § 857. Who may oppose application — It has always been held, under each successive change in the statute, that the heirs and devisees might oppose claims of creditors, and make the same defense thereto before the surrogate as there could be made by them in any other tribunal;^* and so may a purchaser, ^° or an- other creditor,^® or a judgment creditor of a devisee. -"^ But an administrator will not be allowed to set up, in objection to a creditor's petition, that the property in question has been sold in partition proceedings, as he does not represent either the heirs 12 The subject of the reasonableness the widow is entitled to the entire in- of funeral expenses, including the out- come of the estate during her life, the lay for burial plot and monument, has rights of legatees cannot be deter- been considered, and the cases bearing mined, they not becoming due until on it given, ante, § 546 et seq. her death. (Matter of Grotrian, 35 13 Co. Civ. Proc, § 2755, as amended Misc. 257; 71 N. Y. Supp. 842.) 1894. Reopening proceedings for the 15 Mooers v. White, 6 Johns. Ch. admission of new evidence before the 360. surrogate, without notice to the devi- 16 They are not permitted to inter- sees, — Held, error, as impairing their pose an answer for the purpose of rights under this section. ( Matter of contesting the necessity of the proceed- Hearman, 34 St. Rep. 231; 20 Civ. ing or making a defense to them. Proc. Rep. 8.) A sale cannot be de- (Matter of Campbell, 66 App. Div. creed without proof of the statutory 478; 73 N. Y. Supp. 290.) And a facts, although the application is not creditor whose claim is, by stipulation, opposed. (Matter of Lichtenstein, 16 to be paid in full, cannot even contest Misc. 667; 39 N. Y. Supp. 174.) But the claims of other creditors. (Mat- the mere fact that improper evidence ter of Logan, 19 Week. Dig. 148.) has been admitted is not fatal to the Where the claim of a creditor against proceeding where other competent evi- the estate is submitted to arbitration dence is given which sustains the de- with the consent of the administrator cree. (Matter of McGee, 5 App. Div. and heirs-at-law, the award is final 527; 38 N. Y. Supp. 1062.) and precludes them from further liti- wO'Flyim v. Powers, 136 N. Y. gating the claim. (lb.) 412; Ferguson v. Broome, 1 Bradf. 11; 17 Raynor v. Gordon, 23 Hun, 264. Bennett v. Grain, 4 St. Rep. 158; But- See Adams v. Westbrook, 61 How. Pr. ler V. Johnson, 4 id. 151. But where 138. 719 To Pat Decedent's Debts. §§ 858, 859. or the purchaser of the property.^* The heirs are not restricted to legal defenses." If only one of the heirs objects to the allowance of a claim, and his objection is sustained, the claim is rejected as to all the heirs.^" Where decedent's discharge in bankruptcy is set up in opposition to a proceeding instituted by a creditor, it may be attacked and declared void as against the creditor as to whom it was fraudulently procured.^^ §858. Determining^ disputed claims — With the exception of certain cases upon an accounting, this is the only proceeding in which Surrogates' Courts have jurisdiction to pass upon a dis- puted claim of a creditor against an estate.^^ It is here made the duty of the surrogate, upon the return of the citation, to take proof of the claims of all who appear as creditors of the decedent, including those which have been presented to the ex- ecutor or administrator, and rejected, or not allowed, by him. Actual creditors and those claiming to be such, have the same right to appear and establish their demands.^^ Before the amendment of section 1822,^* the surrogate had jurisdiction to determine the validity of the petitioner's claim, although it had been presented to and rejected by the executor or administrator, and although no action upon it had been commenced within six months after such rejection, where no notice to creditors had been published.^^ But since that amendment, the Short Statute of Limitations applies to claims presented either before or after publication of the notice to creditors, tmless the parties consent that the surrogate may determine the same upon the accounting.-® § 859. Determining insufficiency of assets The insufficiency of the personal property to pay the debts is a jurisdictional fact of the first importance. In determining that question, only the per- sonal property which has actually come into the hands of the representative is to be considered. Uncollected and litigated demands in favor of the estate, which may or may not be real- ized on, are not to be regarded.^^ Before the surrogate can make 18 Richardson v. Judah, 2 Bradf. Hun, 3. All these cases were decided 157. See Olmsted v. Long, 4 Dem. 44. previous to the amendment of section 19 Campbell v. Eenwick, 2 Bradf. 2743 of the Code, permitting the sur- 80. See Jennings v. Jones, 2 Redf. 95. rogate, with the consent of the parties, 20 Eenwick v. Eenwick, 1 Bradf. 234. to determine the claim upon the repre- 21 Jones V. Le Baron, 3 Dem. 37. sentative's accounting. See ante, § 49. 22 See Matter of Leslie, 3 Eedf. 280 ; 23 Turner v. Amsdell, 3 Dem. 19. Garvey v. MeCue, id. 313; Leviness 24 See ante, § 646. V. Cassebeer, id. 491; Cooper v. Felter, 25 Matter of Haxtun, 102 N. Y. 157. 6 Lans. 485; Tucker v. Tucker, 4 26 Co. Civ. Proc, § 1822, as amended Keyes, 136; Bevan v. Cooper, 72 N. Y. 1895 (L. 1895, c. 595). 317; Shakespeare V. Markham, id. 400; 27 Bridge v. Swain, 3 Eedf. 487. Hopkins v. Van Valkenburgh, 16 Compare Moore v. Moore, 14 Barb. 27. § 860. DisposiTioiT OF Real Estate 720 a decree in this proceeding, the petitioner must establish that all the personal property which could have been applied to the pay- ment of debts and funeral expenses has been so applied, or that the personal representatives have proceeded with reasonable dili- gence in converting the personal property into money and so ap- plying it, and that it is insufficient, though it has not all yet been so applied.^* Having taken evidence on the question of the suffi- ciency of assets, the surrogate's decision thereon, and his order giving leave to sell, are conclusive upon the parties on that ques- tion ; and where the representative, by virtue of such order, mort- gaged the estate, and subsequently became purchaser of the mort- gage, the heir cannot resist foreclosure by proving that the repre- sentative concealed assets and purchased the mortgage with them.^'' § 860. Admissions of representative as against heirs, etc. — The rule formerly was that the admissions of the representative would in no way bind the heir or devisee nor benefit the creditor. The heir might contest the validity of the admitted claim,^" — the only effect of the admission being, it would seem, that the burden of disproving the claim is put on the party making objection thereto.^^ It is now provided, however, that " the admission or al- lowance by the executor or administrator of a claim or debt of any creditor, against the decedent, shall, for the purpose of such proceeding, be deemed an establishment thereof, unless objection be made thereto by a party to the special proceeding." ^^ But zaxingsland v. Murray, 133 N. Y. Supp. 389.) See Moyer v. Moyer, 17 170; 44 St. Rep. 515; aflfg. Matter of Misc. 648; 40 N. Y. Supp. 772. Com- Kingsland, 60 Hun, 116; 38 St. Rep. pare Matter of Bingham (127 N. Y. 590; s. c. as Matter of Topping, 20 296), where it was held that the fact Civ. Proc. Rep. 357; 14 N. Y. Supp. that a large amount of personal es- 495. If the decedent left suiiicient tate which could have been applied to personal property which could have the payment of the debts had been been applied to the payment of his squandered and misappropriated by debts and funeral expenses, in the ex- the executor would not defeat the pro- ercise of reasonable diligence on the ceeding, by a creditor who had not part of his executors or administra- been guilty of laches. It seems that tors, then resort cannot be had to the it is no answer to the application statute for the sale of his real estate that some of the personal assets have for the payment of his debts. If the been misappropriated, if, independent- personal representative had wasted or ly of this, a deficiency of assets exists, squandered the personal property so (Corwin v. Merritt, 3 Barb. 341.) that it becomes insufficient for the 29 Graham v. Linden, 50 N. Y. 547. payment of the debts, the only resort 30 Matter of Haxtun, 102 N. Y. 157. of the creditors is to sue such repre- 31 Jones v. LeBaron, 3 Dem. 37. sentatives to enforce their personal 32 Co. Civ. Proc, § 2755, as amended responsibility. (lb.; Matter of Meag- 1893. Compare Matter of Pfohl, 20 ley, 39 App. Div. 83 ; 56 N. Y. Supp. Misc. 627 ; 46 N. Y. Supp. 1086. The 503 : Matter of Georgi, 21 Misc. 419 ; validity and existence of the debts are Matter of Very, 24 id. 139; 53 N. Y. open to contest in the proceeding, by T21 To Pay Decedent's Debts. § 861. though the claim is admitted by the representative, and is not objected to by the heir, devisee, or other creditor, the vouchers presented in support of each debt must be " filed and remain in the surrogate's office." ^ Express provision is also made that " where a defense arises under the Statute of Limitations, an act or admission by an executor or administrator does not prevent the running of the statute, or revive the debt so as to affect in any manner the real property, or interest in real property, in ques- tion." ^* § 861. Effect of a judgment as evidence of debt. — The validity of a judgment obtained against the representative for a debt of the decedent may be contested like any other claim.^^ Such a judgment is " deemed a debt of the decedent to the same extent, and to be established in the same manner, and subject to the same defenses, as if an action had been brought thereon ;" ^^ provided, however, that (1) " the debt, for which the judgment was rendered, cannot be allowed, as against the property in question, at any greater sum than the amount recovered, exclusive of costs ;" ^^ and provided that (2) "an heir or devisee of any of the property in question, or a party claiming under an heir or devisee, may inter- pose in reduction of the amount claimed to be due upon a judg- ment or decree against the decedent, or against the executor or administrator, any payment or counterclaim which might be al- lowed to him, or to the person under whom he claims, in an ac- tion founded upon the debt." ^* A judgment must be proved by the record,^® and must have been a lien on the land at the time the proceeding was taken ;*" it must have been rendered upon " a trial upon the merits." A judgment entered upon an offer is not such a judgment ;*^ but an inquest is a trial upon the merits.*^ the heirs or devisees, and the decree of judgment or decree rendered upon the the surrogate on the accounting of the trial upon the merits is presumptive executor or administrator does not evidence of the debt upon the hearing conclude them. (O'Flynn v. Powers, before the surrogate." (lb.) 136 N. Y. 412.) The declarations of 37 Referee's fees and disbursements one who afterward became executor cannot be included. (Matter of Sum- are not admfssible ^s admissions in mers, 37 Misc. 575 ; 75 N. Y. Supp. support of a claim against the estate. 1050.) (Niskern v. Haydock, 23 App. Div. 38 Co. Civ. Proc, § 2757. It was 175; 48 N. Y. Supp. 895.) otherwise before the Code. See Cleve- 33 Co. Civ. Proc, § 2758. land v. Whiton, 31 Barb. 544. 34 Co. Civ. Proc, § 2755, last clause. 39 Sanford v. Granger, 12 Barb. 35Colson V. Brainard, 1 Redf. 324; 392; Turner v. Amsdell, 3 Dem. 19; Eaynor v. Gordon, 23 Hun, 264 ; Mat- Matter of Gardner, 5 Redf. 14. ter of Rosenfield, 10 Civ. Proc Rep. *o Matter of McGee, 65 App. Div. 201 ; 5 Dem. 251 ; Mayer v. Gilligan, 460. 2 St. Rep. 702. 41 Kavanagh v. Wilson, 5 Redf. 43. 36 Co. Civ. Proc. § 2756. " But a 42 Matter of Rosenfield, supra. 46 §§ 862-865. Disposition of Real Estate Y22 § 862. Costs excluded — It will sometimes be difficult, as in the case of a judgment for a deficiency on a foreclosure and sale, to determine kow much of the amount of the judgment consists of costs, which are not allowed to be proved in this proceeding.*^ The presumption is that, if the proceeds of sale were sufficient to pay the costs and expenses of the foreclosure proceedings, they were applied to that purpose, and that the judgment for deficiency does not include any costs, but only the amount remaining due on the bond and mortgage; such a claim, therefore, is a debt due from the deceased in his lifetime.** § 863. Trial of controverted question of fact In this, as in other special proceedings, except probate proceedings, the court may refer it to a referee to take and report the testimony, the re- port being subject to the surrogate's confirmation or modification ;*^ or the surrogate may, in his discretion, make an order, directing the trial by a jury, at a Trial Term of the Supreme Court, to be held within the county, or in the County Court of the county, of any controverted question of fact, arising in such a special pro- ceeding.*® The order must state, distinctly and plainly, each question of fact to be tried; and it is the only authority neces- sary for the trial. *''^ § 864. Motion for new jury trial — A trial by a jury, pursuant to such an order, can be reviewed, in the first instance, only upon a motion for a new trial. "A new trial may be granted by the surrogate, or the court in which the trial took place, or, if it took place at a Trial Term of the Supreme Court, by the Supreme Court, in a case where a new trial of specific questions of fact, tried by a jury, pursuant to an order for such trial, made in an action, would be granted. The verdict of the jury must be certi- fied to the Surrogate's Court by the clerk of the court in which the trial took place." ** § 865. Appeal from order for new jury trial — An appeal may be taken from an order, made upon a motion for a new trial, by a 43 See Wood v. Byington, 2 Barb. 46 Co. Civ. Proe., § 2547, as amended Ch. 387; Sanford V. Granger, 12 Barb. 1895; see ante, § 121. The power to 392; Smith v. Meakim, 2 Dem. 129; direct a jury trial being discretion- Burnham v. Harrison, 3 Eedf. 345; ary, the order will be denied where it Matter of Wilcox, 11 Civ. Proe. Eep. would entail needless delay and ex- 115. pense. (Mead v. Jenkins, 4 Redf. 44 East River Bank v. McCaffrey, 3 369.) Redf. 97. See Hurd v. Callahan, 5 id. 47 Co. Civ. Proe, § 2547. 393 ; Kavanagh v. Wilson, id. 43. 48 Co. Civ. Proe, § 2548, as amended 45 Co. Civ. Proe, § 2546; ante, 1895. For the regulations as to a § 117. motion for a new trial of specific ques- 723 To Pay Decedent's Debts. §§ 866, 867. jury, as if the order had been made in an action, and with like effect. Costs of such an appeal may be awarded by the appellate court, as if the appeal was from an order or decree of the Surro- gate's Court.*® § 866. Suspending proceeding and staying sale. — If, in answer to a creditor's petition, an insufficiency of assets is denied, the proceeding should be delayed until the termination of a pending accounting in which that fact may be ascertained.^* So, where it appears that the property has already been sold on a judgment in foreclosure of an alleged invalid mortgage, the creditor's pe- tition need not be dismissed, but the proceeding may be suspended until the petitioner has had a reasonable opportunity to attack the foreclosure and sale in another cou-rt.*"^ Express provision is made that " where it appears that any of the real property, of which the decedent died seized, cannot be sold, without manifest prejudice to the persons interested therein, by reason of a controversy re- specting the decedent's title thereto, or interest therein, the decree ■ may direct that the execution thereof, with respect to that prop- erty, be postponed, until the special direction of the surrogate. In that case, a party may apply at any time afterward, upon notice to the others who appeared, for an order directing the execu- tion of the decree, with respect to the property so reserved," ^^ § 867. Discontinuing proceeding — The proceeding having been instituted, and jurisdiction of the parties obtained, it is to be treated as an action in which the parties have been served with process ; it cannot be abandoned or dismissed without an order on notice. ^^ The creditors have the right to insist that a proceeding instituted by the representative shall be prosecuted, and may move for reviving or expediting it.^ Where the claims of creditors established in the proceeding are paid, together with the costs of the proceeding, the heir or owner of the land is entitled to an "order of discontinuance or dismissal.'* tions of fact in an action, see Co. Civ. premises had been had, and existed Proe., § 1003. As to costs, see § 2558. in force, was perpetually enjoined *9 Co. Civ. Proc, § 2549. from continuing the proceeding. In 50 Matter of Eosenfield, 10 Civ. Matter of Braker (48 App. Div. 443; Proc. Pep. 201; 5 St. Rep. 339; 5 62 N. Y. Supp. 859), where the prose- Dem. 251. cution was delayed for ten years, the 51 Knickerbocker v. Decker, 4 Dem. premises having, in the meantime, 128. been sold in partition, and the pur- 52 Co. Civ. Proc, § 2762. See Hew- chaser refused to take title, the pro- itt V. Hewitt, 3 Bradf. 265. In Bree- ceeding was dismissed. vort V. M'Jimsey (1 Edw. 551), an 53 Harrington v. King, 1 Bradf. 182. administrator applying for leave to 54 Raven v. Norton, 2 Dem. 110. sell real property, where a decree of ssKowing v. Moran, 5 Dem. 56. foreclosure and sale of the same §§ 868, 869. Disposition of Keal Estate 724 § 868. Proof necessary for decree. — "A decree, directing the dis- position of real property, or of an interest in real property, can be made only where, after due examination, the following facts have been established to the satisfaction of the surrogate: " 1. That the proceedings have been in conformity to [title five of chapter eighteen of the Code] . " 2. That the debts, or liens, or both, for the payment of which the decree is made, are the debts of the decedent, or are just and reasonable charges for his funeral expenses, or are liens by judg- ment existing at his death upon his real property, or upon some portion thereof ; and are justly due. " 3. That they are not secured by a mortgage, or expressly charged by the will upon the decedent's real property, or interest in real property; or, if a debt is so secured or charged upon a portion of the real property, or interest in real property, that the remedies of the creditor, by virtue of that charge or security, have been exhausted. " 4. That the property directed to be disposed of, was not ef- fectually devised, expressly charged with the payment of debts or funeral expenses, and is not subject to a valid power of sale for the payment thereof; or, if so devised or subject, that it is not practicable to enforce the charge, or to execute the power, and that the creditor has effectually relinquished the same. " 5. That all the personal property of the decedent, which cotild have been applied to payment of the decedent's debts and funeral expenses, has been so applied; or that the executors or adminis- trators have proceeded with reasonable diligence, in converting the personal property into money, and applying it to the pay- ment of those debts and funeral expenses ; and that it is insufficient for the payment of the same, as established by the decree." ^ §869. General requisites of decree; filing vouchers. — "The de- cree must determine and specify the amount of each debt estab- lished before the surrogate as a valid and subsisting debt against the decedent's estate, ana must determine and specify the amount of each judgment lien established before the surrogate as a valid and subsisting lien existing upon the decedent's land, or some part thereof, at the time of his death. And the decree may also deter- mine the amount due or remaining unpaid upon any mortgage or mortgages, existing at decedent's death upon his real property, or any portion thereof, or as a just and reasonable charge for 56 Co. Civ. Proc, § 2759, as amended 1894. 725 To Pay Decedent's Debts. § 870. funeral expenses; and the decree must, in like manner, specify what demands presented have been rejected. The voucliers pre- sented before the surrogate, in support of each debt or lien es- tablished, must be filed and remain in the surrogate's ofSce." ^^ Where the decree directs that real property be mortgaged, leased, or sold, or that an interest in real property be sold, it " must describe it with common certainty ; and must direct that a mort- gage, lease, or sale thereof, for the purpose of paying the debts, judgment liens ordered to be paid, or funeral expenses, established by the decree, be made by the executor or administrator, upon his giving the bond prescribed by law ; or, in case of bis failure so to do, by a freeholder, to be appointed by the surrogate, as prescribed by law." ^« § 870. Disposition to be by mortgage or lease, if feasible. — If the facts necessary for a decree " are satisfactorily established, the surrogate must inquire whether sufficient money can be raised, ad- vantageously to the persons interested in the real property, by a mortgage or lease of the real property of which the decedent died seized, or of a part thereof." To that end, he shall appoint three competent disinterested persons to examine and appraise eacb parcel of such real property, and its rental value at its just and fair market value ; they shall forthwith appraise the same, make a report thereof, signed and verified by at least two of them, de- scribing each parcel, and stating its value and rental value, and file the same in the surrogate's office. " If he ascertains that the money can be so raised, the decree must direct the execution of one or more mortgages or leases accordingly." " But a lease shall not be made for a longer time than until the youngest person interested In the property leased attains full age. A mortgage or 67 Co. Civ. Proc, § 2758, as amended is sufficient. (Jackson v. Irwin, 10 1894. Wend. 441.) Lands omitted in a first B8 Co. Civ. Proc, § 2765, as amended order, by reason of a mistake in tho 1894. Although the order must spe- boundaries, may be sold by virtue of cify the land to be sold, it need not a second order, made on the petition describe it by metes and bounds; and of the administrator showing themis- an order specifying the land as that take, without any new order to show of wliich the decedent was seized, — cause. (Sheldon v. Wright, 7 Barb, being ninety-one acres out of the 39.) But where the proceedings in southwest corner of lot No. 11, in the regard to the first order have been town of, etc., — has been held to suffi- conducted without any irregularity, ciently describe the premises. (Bloom the surrogate should leave the admin- V. Burdirk, 1 Hill, 130.) And so a istrator free to act according to it, description of the property as "so and should not attempt to control his much of the 100 acres on lot No. 4, discretion by a second order. (Mat- as is known and distinguished by the ter of Lawrence, 6 N. Y. Leg. Obs. town plot called the village of J.," 247.) §§ 871, 872. Disposition of Real Estate 726 lease, executed pursuant to such decree, lias the same effect as if it had been made by the decedent immediately before his death." ^^ § 871. Decree for sale, where mortgage or lease is disadvantageous. — Where it appears to the surrogate, upon such inquiry, that suffi- cient money cannot be raised, advantageously to the persons in- terested in the real property, by mortgage or lease, the decree must direct a sale of the real property, or interest in real property, or of so much thereof as is necessary, in order to pay the debts, judg- ment liens thereon, and funeral expenses of the decedent, as es- tablished in the decree, at public or private sale. Such decree, however, may provide, if it appear to be for the best interest of all persons interested, that the said sale be made subject to all or any specified liens by judgment existing at decedent's death on said real property or any portion thereof, v^hich shall have been established, and the amount thereof determined by the said decree. Where a sale of all the real property, or interest in real property, is not necessary for that purpose, but enough of either cannot be sold vsfithotit manifest prejudice to the persons interested, the de- cree may direct a sale of all the real property, or all the interest in real property, or both, or of such a part of either as the surro- gate thinks proper, at public or private sale.^" § 872. Impeaching decree — Only the heirs and devisees, and those claiming under them, can question the regularity of an order of sale, and this only by appeal.®^ The recitals in the order are no more than a statement by the surrogate that he had acquired jurisdiction, and are of no effect if they do not show an adjudica- tion that he found from evidence the facts upon which his juris- diction depended.®^ Ordinarily the decree cannot be impeached collaterally, even for fraud. The court's adjudication of insuffi- ciency of personal assets is conclusive, and can be questioned 59 Co. civ. Proc, § 2760, as amended estopped themselves from objecting by 1885. The jurisdiction of a surrogate such consent. (Duryea v. Maekey, to order a mortgage of the real estate 151 N. Y. 204; 45 N. E. Eep. 458.) of the decedent can only be exercised 60 Co. Civ. Proc, § 2761, as amended in the manner and by the procedure 1894. As to power of the court to prescribed in the statute. An order, amend the decree which omitted men- therefore, made in probate proceedings, tion of a portion of the land, see Shel- on consent of the attorneys, authoriz- don v. Wright, 5 N. Y. 497. As to the ing the temporary administrator to effect of the decree as a lien, see Mat- mortgage the real property for the ter of Wilcox. 11 Civ. Proc. Rep. 115. purpose of paying the costs allowed 61 Matter of Dolan, 88 N. Y. 309, in the proceeding, is without jurisdic- 319. tion, and such mortgage is not eflfeot- 62 Sibley v. Waffle, 16 N. Y. 180. ual as against parties who have not T27 To Pay Decedent's Debts. §§ 873, 874. on appeal only.^^ An heir-at-law may appeal from the order allow- ing a disputed creditor's claim.^ § 873. Defects and irregularities not affecting title. — The title of a purchaser in good faith, at a sale pursuant to a decree made as heretofore described, is not, nor is the validity of a mortgage or lease made as so described, in any way affected by any of the following omissions, errors, defects, or irregularities, except so far as the same would affect the title of a purchaser at a sale, made pursuant to the directions contained in a judgment rendered by the Supreme Court in an action : 1. Where a petition was presented, and the proper persons were duly cited, and a decree directing a mortgage or lease, or a decree for sale, and an order directing the execution thereof, were made as heratofore. described ; and the decree, and the order, if any, were duly recorded, as prescribed in the eighteenth chapter of the Code f^ " by any omission, error, defect, or irregularity, occur- ring between the return of the citation and the making of the de- cree, or the order directing the execution of the decree." " 2. Where an order, confirming a sale and directing a convey- ance, has been made, upon proof, satisfactory to the surrogate, that all the acts have been done, which are required by law to be done, after the order directing the execution of the decree, to au- thorize the surrogate to make such an order of confirmation by the actual omission to do such an act, or by any error, defect, or irregularity in the same, or by any omission in the recitals of the conveyance." *® TITLE THIRD. EXECUTION" OF DECKEB FOE SALE. § 874. By whom decree to be executed. — "A decree directing that real property be mortgaged, leased, or sold, or that an interest in real property be sold, as prescribed in this title, must describe it with common certainty ; and must direct that a mortgage, lease or sale thereof, for the purpose of paying the debts, judgment liens ordered to be paid, or funeral expenses, established by the 63 Graham v. Linden, 50 N. Y. 547: id., §§ 2473, 2474; ante, § 43. See Atkins V. Kinnan, 20 Wend. 241; Wilson v. White, 109 N. Y. 59. The Jackson v. Robinson, 4 id. 436 ; Jack- surrogate may disregard errors or de- son V. Crawfords, 12 id. 533; Farring- fects that go to the form and not to ton V. King, 1 Bradf. 182. the substance, but he has no authority 64 Owens V. Bloomer, 14 Hun, 296. to dispense with any absolute pre- 83 Art. 1, tit. 1, thereof. requisite. (Matter of Mahoney, 34 60 Co. Civ. Proc., § 2784. And see Hun, 501.) See § 838. mte. §§ 875, 876. Disposition of Eeal Estate 728 decree, be made by the executor or administrator, upon his giving the bond prescribed by law, or in case of his failure so to do, by a freeholder, to be appointed by the surrogate as prescribed by law; and in case a sale thereof be directed, may authorize the same to be made at private sale, at a price not less than the value thereof, as appraised pursuant to the provisions of section 2760'." ®^ § 875. In case of death of representative or freeholder " The death, removal, or disqualification, before the complete execution of a decree, of all the executors or administrators, who have been directed to execute it, or of a freeholder appointed for the pur- pose, does not suspend or affect the execution thereof; but the successor of the person who has died, been removed, or become disqualified, must proceed to complete all unfinished matters, as his predecessor might have completed the same ; and he must give such security for the due performance of his duties as the surro- gate prescribes." ®* § 876. Bond of representative on selling.—" Before an executor or administrator can execute a decree directing that property be mortgaged, leased, or sold, he must execute, and file with the sur- rogate, his bond, with two or more sureties, to the people of the State, in a penalty, fixed by the surrogate, not less than twice the sum to be raised, if the decree directs a mortgage; or, if it directs a lease, in such a penalty as the surrogate thinks proper; or, if it directs a sale, in a penalty not less than twice the value of the real property, or interest in real property, directed to be sold. The bond must be conditioned for the faithful performance of the duties imposed upon the principal by the decree ; for the payment into the Surrogate's Court, within twenty days after the receipt thereof, by the principal, of all money arising from the mortgage, lease, or sale; for the delivery to the surrogate, within the same time, of all the securities taken thereupon; and for the account- ing by the principal, for all money received by him, whenever he is required so to do by a court of competent jurisdiction." ^^ 67 Co. Civ. Proc, § 2765. Having provided he gives the necessary bond, ordered the sale, the surrogate should (Matter of Georgi, 21 Misc. 419.) leave the representative free to act esCo. Civ. Proc, § 2770. See id., under it, and not attempt to limit his §§ 766, 1828. discretion by a second order. (Matter 69 Co. Civ. Proc., § 2766; Jackson of Lawrence, 6 N. Y. Leg. Obs. 274.) v. HoUaday, 3 Redf. 37. Under the See Sheldon v. Wright, 5 N. Y. 497. Act of 1813, filing the bond several An administrator, admittedly insol- days after the date of the mortgage vent, may, nevertheless, make the sale, was held sufficient. (Fox v. Lipe, 24 Wend, 164.) 729 To Pay Decedent's Debts. §§ 877-879. § 877. Appointment of freeholder But if a sole executor or ad- ministrator, or all the executors or administrators, so fail, the surrogate must make an order appointing a disinterested freeholder to execute the decree. He may vacate such an appointment, and make a new appointment, from time to time, as the case requires. A person so appointed must give a bond, in all respects like that re- quired from an executor or administrator. " In making such an appointment, the surrogate must give a preference to a competent person nominated by the creditors, whose debts have been estab- lished, or a majority of them in number and amount." ™ § 878. Order directing execution of decree Where an execu- tor or administrator, or a freeholder so appointed, has given the requisite bond, an order must be made, reciting the fact, and di- recting him to proceed to execute the decree. The order may direct the execution of the decree, with respect to all or any part of the real property, or any of the interests in real property, specified in the decree. Where it directs the execution of the decree with respect to part only, an order to execute it, with respect to any other part or parts, may be made from time to time, as the case requires." § 879. Order of sale of parcels, where heir, etc., has aliened.. — " Where the decree directs the sale of two or more distinct parcels of real property, of which the decedent died seized ; or his interest under two or more contracts for the purchase of distinct parcels of real property; the decree may direct the sale to be made in the order which the surrogate deems just, imless it appears that one or more distinct parcels, of which the decedent died seized, have been devised by him, or sold by his .heirs ; in which case, the several distinct parcels must be sold in the following order : " 1. Property which descended to the decedent's heirs, and has not been sold by them. " 2. Property so descended, which has been sold by them. " 3. Property which has been devised, and has not been sold''^ by the devisee. TO Co. Civ. Proc, § 2767. renee, 79 Hun. 176; 29 N. Y. Suppl. 71 Co. Civ. Proc, § 2768. 726.) Where the debt arose from the T2 See Eddy v. Traver, 6 Paige, 521. relation of the testator as aceommo- The property referred to, is that re- dation indorser for one of the dev- maining unsold of the particular dev- isees, the property devised to such isee, who may have conveyed only a devisee should be primarily charged portion of the estate devised to him, with the debt, in a proceeding to sell and not that of the other devisees real estate for the payment thereof, who have not conveyed the property (lb.) devised to them. (Matter of Law- §§ 880, 881. Disposition of Keal Estate Y30 " 4. Property so devised, which has been sold by the devisee." '^^ Where one of several devisees of undivided interests in two pieces of property has mortgaged his interest in one, which interest was afterward sold under foreclosure, the property in which his interest remains should first be sold for the payment of the debts of the estate, and the interest of all the devisees therein should be sold in order (the property not being of sufiicient value to pay the debts) to prevent a disproportionate part of the debts from falling upon the interest of the purchaser at the foreclosure sale.''* § 880. Sale where undivided share or precedent estate devised or aliened. — " Where the decedent's will devises an undivided inter- est in real property, but not the whole of his estate therein; or creates a precedent estate in real property; or where an heir of the decedent has sold an undivided interest, or created a precedent estate, in real property which descended to him, the entire prop- erty, to which the undivided interest or precedent estate attaches, must be sold. But, in applying the proceeds to the payment of debts and funeral expenses, the application of the proportion of the proceeds, belonging to the devisee or grantee of the undivided interest, or of the precedent estate, must be postponed to the ap- plication of the residue, in the order prescribed in the last section, in like manner as if that undivided interest or precedent estate was a distinct parcel of the property." ^^ § 881. Sale of part of distinct parcels, pending appeal relating to debt. — " Where the only question, upon an appeal taken from a decree directing a sale of real property, or of an interest in real property, or both, relates to the validity or amount of a debt or judgment lien established by the decree; and the real property di- 73 Co. civ. Proc, § 2763. Under the fore resorting to those so mortgaged, corresponding provisions of the Re- (Matter of Clark, 3 Eedf. 225.) vised Statutes — which required that 74 Matter of Clark, supra. if any lands devised or descended had 75 Co. Civ. Proc, § 2764. Before been sold by the heirs or devisees, this section of the Code took effect, it then the lands remaining in their was held that, in directing the sale, hands unsold should be first sold to the surrogate was bound to decree the satisfy the debts of the decedent's es- sale of the entire title to so much as tate — it was not a suifieient answer was sold at all ; and that he had no to a petition by a mortgagee of a dev- authority to protect a life estate cre- isee for the prior sale of lands of the ated by the will of the decedent by estate in which the devisee had an in- selling ihe remainder first, however terest, other than those mortgaged, equitable such an arrangement might and in which his interest remained be; nor could he set apart from the unsold, that the lands so unsold would proceeds of the sale the estimated not probably bring enough to pay the value of such life estate, before apply- debts, though the opinion that they ing them to the payment of debts, would not was founded upon inquiry; (Pelletreau v. Smith, 30 Barb. 494.) but an actual sale must be made be- 731 To Pay Decedent's Debts. §§ 882, 883. rected to be sold, or to which the interest directed to be sold at- taches, consists of two or more distinct parcels, the sale of, or with respect to, one or more of which will suffice to pay all the other debts and liens so established and directed to be paid, leav- ing enough real property, or interest in real property, unsold, to satisfy the claim drawn in question upon the appeal; the appel- late court may, upon the motion of any party to the special pro- ceeding in the Surrogate's Court, made upon notice to all parties to the appeal, direct the Surrogate's Court to cause the decree to be executed, with respect to the distinct parcels of real property, which will suffice to pay the debts and judgment liens ordered paid, not in controversy; and the proceeds of a sale, made pursu- ant thereto, to be distributed, in like manner, as if the decree re^ lated only to those parcels and those 'debts or liens; except that any surplus, which may remain for distribution after payment of those debts or liens, or so much thereof as will suffice to pay the demand in controversy, must be paid into the Surrogate's Court and retained by the county treasurer, subject to the order of the surrogate, to abide the event of the appeal." ''^ § 882. Terms of credit allowed on sale " The surrogate may, in the order directing the execution of the decree, or in a separate order made before the sale, allow a sale to be made upon a credit, not exceeding three years, for not more than three-fourths of the purchase money, to be secured by the purchaser's bond, and his mortgage on the property sold, except where the sale is that of an interest under a contract; in which case the order may pre- scribe the security to be given."" The representatives are not obliged to sell on credit, and in the absence of any direction by the surrogate, or any assent on the part of the creditors, may decline to do so.^® § 883. Manner and notice of public sale. — Where the property is to be sold at public sale, and it consists of one or more distinct parcels, each parcel must be separately exposed for sale, unless otherwise directed in the decree, or in the order to execute the same, or in an order subsequently made by the surrogate. '''' Each T6 Co. Civ. Proc, § 2769, as amended tains no provisions concerning the sale 1894. This section also contains the of distinct parcels. It may be con- following, as the concluding sentence: jectured that the intent was to refer " But this section does not authorize to sections 2763, 2764. a, sale of any distinct parcel, other- T7 Co. Civ. Proc, § 2771. wise than in the order prescribed for T8 Maples v. Howe, 3 Barb. Ch. 611. that purpose, in sections 2764 and 79 Co. Civ. Proc, § 2773, which con- 2765 of this act." The reference is not firms Delaplaine v. Lawrence, 3 N. Y. very clear, as the latter section con- 301, where it was held, that the exec- §§ 884, 885. Disposition of Real Estate 732 distinct parcel must be sold in the county where it, or a part of it, is situated.*" The Code further provides in effect, that the sale, if at public auction, must be between nine o'clock in the morning and sunset; that six weeks' notice must be given, by posting and publication; that the property must be described, in such notice, with common certainty; that disturbing a posted notice, or selling without notice, etc., subjects the offender to a forfeiture; and that the validity of a sale is not affected by an oiScial omission, or by the fact that all the property advertised is not sold.*^ § 884. Private sale — By an amendment made in 1885, the sale may be made at public or at private sale.*^ "A private sale of real property, or of an interest in real property, must be made by contract in writing, subject to the approval of the surro- gate." An administrator's agreement, previous to obtaining the order, and in anticipation of sale, to convey the property is void, because the administrator has no interest.*^ § 885. Purchase by certain persons forbidden or restricted " An executor or administrator upon the estate, a freeholder appointed to execute a decree, or a general or special guardian of an infant, who has an interest in any of the real property to be sold, shall not, directly or indirectly, purchase, or be, or at any time before confirmation, become interested in a purchase at the sale, except that a guardian may, when authorized so to do by the order of the surrogate, purchase, in his name of office, for the benefit of his ward. A violation of this section renders the purchase void."®* Where the statute is violated, or there has been fraud in the sale, the relief is not confined to an application to the sur- utor or administrator, or other persoa prescribed in this title. In making making the sale, might, if he deemed the application, each provision relat- it beneficial to the estate, sell in sepa- ing to the sheriff is deemed to apply rate lots, although the order of sale to the person making the sale, pur- described the property as a single suant to the decree, and the order di- parcel; that the statute contemplated recting the execution thereof." As to proceedings similar to those which take posting notice of sale, see Jennings v. place on other judicial sales, and in Jones, 2 Redf. 95; Matter of McFeeley, all such sales it was the duty of the id. 541. officer conducting them to sell the 82 Co. Civ. Proc., § 2772. This was property in such parcels as would be the rule under the Act of 1801. best calculated to secure the greatest (Jackson v. Irwin, 10 Wend. 441.) aggregate amount. 83 Bolt v. Rogers, 3 Paige, 154 ; 80 Co. Civ. Proc, § 2772. Bridgewater v. Brookfield, 3 Cow. 299. 81 lb. The following are the words As to penalty for making a fraudulent of the Code, to the above effect: "The sale, see 2 R. S. 110, § 58. provisions of sections 1384, 1385, 1386, 84 Co. Civ. Proc, § 2774. Under the 1434, 1435, and 1436, of this act, ap- corresponding provision of the Revised ply to a public sale of real property. Statutes, a purchase by one acting as or of an interest in real property, as Y33 To Pay Decedent's Debts. § 886. rogate, to set the sale aside, but it may be attacked by a direct proceeding in the Supreme Court.®® § 886. Order to vacate sale; resale — " The person making the sale must with all convenient speed file with the surrogate a re- port of the sale. The surrogate must upon notice, given in such manner and for such a length of time as he thinks proper, to each party who has appeared, inquire into the proceedings; and he may take oral testimony respecting the same. If he is of opinion that the proceedings were unfair; or that the sum bid for the whole, or for a distinct parcel of real property separately sold, or in case of a private sale of the same, that the sum at which it is agreed to be sold was less than the value thereof at the time of sale, and that a sum exceeding that bid, or in case of a private sale, exceeding that at which it is agreed to be sold at least ten per centum, exclusive of the expenses of a new sale, may be obtained upon a resale, — he must make an order vacating the sale, either wholly or with respect to the distinct parcel affected, and directing another sale, and whether it shall be at public or private sale, notice of which, in case of a public sale thereof, must be given, and the sale must be conducted as in this title prescribed for a public or private sale as may be. applica- ble."®® The fact that several lots were sold together, being the agent, or for the benefit, of the ad- 86 Co. Civ. Proc, § 2775. If the sale ministrator, etc., was void. (Forbes was not illegally made or unfairlj V. Halsey, 26 N. Y. 53.) And if the conducted, the surrogate is impera- administrator, etc., after the property tively required to confirm it, unless a was struck off, but before con- sum exceeding the bid by 10 per cent., firmation of the sale, became himself exclusive of expenses, can be obtained, interested in a purchase made by one (Horton v. Horton, 2 Bradf. 200.) employed by him to act as auctioneer. But it was formerly held, that he the sale was void (Terwilliger v. could not vacate it and order a resak Brown, 59 Barb. 9; afifd., 44 N". Y. merely because such new bid could be 237) ; — -a principle now expressly em- obtained. Even if a larger bid could bodied in the statute. The facts that be obtained, yet if the sum bid was, at the fair value of the premises was the time, an adequate price, the sale bidden, and the sale was afterward should not be disturbed, unless the confirmed ex parte, would not give it proceedings were unfair. (Kain v. validity; nor was it material that the Masterton, 16 N". Y. 174.) The pro- agreement by which the executor be- vision, as to partial vacation, con- came interested might be void under forms to Delaplaine v. Lawrence (3N. the Statute of Frauds. (lb.) And a Y. 301), holding that where any parcel residuary devisee might come into a has been fairly sold, and for an ade- covirt of equity, and have the sale set quate price, the sale should be con- aside, and the property resold. (lb.) firmed, but that if another parcel has A purchase by the testamentary trus- been sold for an inadequate price, and tee of an infant devisee is not void, tlie surrogate is satisfied that, upon a but is voidable at the election of the resale, 10 per cent, more can be ward. (Bostwick v. Atkins, 3 N. Y. realized, it is his duty to vacate the 53. ) sale of such parcel, whatever else may 85 Woodruff V. Cook. 2 Edw. 259. be done in respect to the other prop- And see Terwilliger v. Brown, supra, erty sold. §§ 887, 888. Disposition op Keal Estate 734 described together in the petition and order of sale, is not ground for vacating the sale, unless it appears that they would have brought more if sold separately.*^ The surrogate has authority to entertain a proceeding for the repayment of moneys deposited by a purchaser at the sale, and, in a proper case, to grant the relief prayed for.®* § 887. Confirming sale; executing conveyances "Where a sale is not vacated, the surrogate must make an order confirming it; and where it is vacated as to a part only of the property sold, he must make an order confirming it as to the residue. An order, confirming a sale, must direct the person making the sale to exe- cute the proper conveyances, upon compliance, on the part of the purchaser or purchasers, with the terms of the sale. The nec- essary conveyances must be executed by that person accordingly, and must briefly refer to the decree, the order to execute it, and the order of confirmation." *^ He should not confirm a sale, if the petition on which it was ordered is defective in any of the statute requirements going to the jurisdiction.®" § 888. Compelling purchaser to take. — The power to confirm the sale, which is conferred on the surrogate, does not include the power to compel payment of the .bid and the taking of a con- veyance, and the surrogate cannot exercise that power over a 87 Horton v. Horton, 2 Bradf. 200. defective recitals, tlie defects might be See Olmstead v. Long, 4 Dem. 44. healed by a second deed, which may 88 Matter of Lynch, 33 Hun, 309 ; be treated as relating back. ( Sheldon Matter of Campbell, 1 Tuck. 240. v. Wright, 7 Barb. 39.) By L. 1895, 89 Co. Civ. Proc, § 2776. This sec- c. 525, all titles of purchasers under tion revises 2 R. S. 105, § 30; which deeds theretofore made, which failed was amended by L. 1880, c. 231 ; but to set forth at large the decree direct- the amendment was short-lived, owing ing the sale, were cured. Under the to L. 1880, c. 245 {§§ 2, 4, and 5), Act of 1819, a sale was void as against which repealed the section of the Ee- the heirs, unless an order of confirma- vised Statutes, with its amendments, lion was obtained previously to the down to September 1, 1880. Under conveyance to the purchaser, although the former statute, the conveyances, the sale was bona fide, and the pro- instead of containing a brief reference eeeds were applied to the debts of the to the proceedings, were required to intestate. (Eea v. McEaehron, 13 set them forth at large; and it was Wend. 465.) See Fox v. Lipe, 24 id. held, that a conveyance which omitted 164; Stilwell v. Swarthout, 81 N. Y. to recite at large the order of sale was 109. void at law, though it might be con- 90 Matter of Kelley, 1 Abb. N. C. firmed by the Supreme Court. (At- 102. The Act of 1850, and its amend- kins V. Kinnan, 20 Wend. 241.) But ments, — curing defects in titles under an error in the recital of the order of such sales (see § 835, ante), — applied sale might be disregarded, where the only where the sale was collaterally discrepancy appeared on the face of questioned, not in the proceedings to the deed. (Sheldon v. Wright, 5 N. confirm the sale in the Surrogate's Y. 497; affg. 7 Barb. 39.) And if Court. (lb.) the deed were inoperative by reason of 735 To Pay Decedent's Debts. § 889. purchaser for the reason that he is in nowise a party to the pro- ceeding.^^ § 889. Limited effect of conveyance Such a conveyance " does not affect, in any way, the title of a purchaser or mortgagee, in good faith and for value, from an heir or devisee of the dece- dent, unless letters testamentary or letters of administration, upon the estate of the decedent, were granted, by a Surrogate's Court having jurisdiction to grant them, upon a petition there- for, presented within four years after his death;" ®^ but, with this exception, the conveyance "vests in the grantee all the es- tate, right, and interest of the decedent in the real property so conveyed, at the time of his death, free from any claim of his widow for dower, which has not been assigned to her; but sub- ject to all subsisting charges thereon by judgment, mortgage, or otherwise, which existed at the time of his death, unless the said real property is decreed to be sold free and clear from the lien of any judgment or judgments established by the decree and ordered to be paid as far as possible from the proceeds of such sale, as provided for in sections 2791 and 2793 of this act, in which event such lien or liens shall be transferred by such sale from the land sold to the proceeds thereof. Where the dower has been assigned to the widow, the grantee takes the part of the property to which her estate in dower attaches, subject thereto." ®* The conveyance has priority, under the Recording Acts, over one executed before, but not recorded until afterward.^* The pur- 91 Cromwell v. Phipps, 6 Dem. 61; 2 Bradf. 394; Barto v. Tompkins Matter of Belleaheim, 1 N. Y. Supp. County Bank, 15 Hun, 11. 276. In both of these eases Wolfe v. 93 Co. Civ. Proc, § 2778, as amended Lynch (2 Dem. 610) was followed, the 1894. It was held in Maples v. Howe decision of the General Term revers- (3 Barb. Ch. 611), that where the ing it ( Matter of Lynch, 33 Hun, 309 ; land in which the widow's dower has 67 How. Pr. 436), being distinguished, been assigned to her is ordered to be In that case, the purchaser applied to sold for the payment of the decedent's the surrogate by petition on discover- debts, and the whole is probably in- ing a defect of title, for an order to be sufficient to pay them, the third as- relieved from the purchase, and a di- signed to the widow may be sold, rection that the portion of the pur- subject to her life estate. And see chase money already paid be returned. Lawrence v. Miller, 2 N. Y. 245 ; Held, that power to grant_ the relief Lawrence v. Brown, 5 id. 394. asked for is given to the surrogate 94 Barto v. Tompkins County Nat. under Co. Civ. Proc, § 2472, subd. Bank, 15 Hun, 11. In that case, it 5, and § 2481. Nor has the surrogate appeared that, in 1855, N. executed a express or implied authority to put deed of conveyance of a lot to W., the a purchaser in possession. (Matter deed being left with a third person, to of Georgi, 37 Misc. 242; 75 N. Y. be delivered on payment of the price; Supp. 256.) the price was paid and the deed de- 92 Co. Civ. Proc, § 2777. See Hall livered in January, 1865, and the deed V. Partridge, 10 How. Pr. 188; Hyde was recorded May 3, 1876. In Sep- ,v. Tanner, 1 Barb. 75; Sears v. Mack, tember, 1873, a judgment was docketed §§ 890, 891. Disposition of Eeal Estate T36 chaser of land at a sale under the statute takes the growing crops. A tenant occupying under the heir or devisee, within the three •years, sows his crops at the risk of losing them, in case of a sale before he can remove them.^^ § 890. Sale of interest in land contract, subject to payments. — " Where any of the property to be sold consists of an interest, under a contract for the purchase of real property, and any pay- ment is yet to be made upon the contract, the sale must be made subject to all payments thereafter to become due thereupon; and it may, also, if the decree, or the order to execute the decree, so directs, be made subject to all payments, previously due there- upon. If the sale is subject to any payment, the terms of sale miist specify the penalty and the number of sureties, required in the bond to be given by the purchaser," and must state to what payments the sale is subject.®® The bond is for the benefit and indemnity of the obligee and his successors, and, also, the per- sons entitled to the interest of the decedent in the lands con- tracted for, and must be in a penalty at least twice the amount of all the payments, subject to which the sale is made.®^ But where the decree or the order directs a sale of the decedent's in- terest in a part only of the property, if, in the opinion of the surrogate, a sale can be made advantageously to the estate, and so that the purchase money of the part sold will satisfy and dis- charge all the payments, to be made for all the property contracted for, according to the contract, the purchaser is not required to execute a bond.** § 891. Effect of conveyance of entire contract interest. — "A con- veyance of the decedent's interest in all the real property, held by him under a contract for the purchase thereof, operates as an assignment of the contract to the purchaser ; and vests in him, his heirs and assigns, all the right, title, and interest of all the against W., under which an exeeu- surrogate's sale, and paid the whole tion was issued in September, 1876, purchase price into the Surrogate's and the lot sold in December, 1876, a Court, receiving a deed which was re- deed being delivered in April, 1878, corded in November, 1875. Held that In November, 1875, the lot was sold the title acquired by him was superior under proceedings had in the Surro- to that acquired by the purchaser at gate's Court for the sale of the real the sheriff's sale. estate of N., to pay debts. W., who OB Jewett v. Keenholts, 16 Barb, was one of the executors, joining with 193. the others in the petition. T., who 9« Co. Civ. Proc, § 2779. held a note against the estate of N. Sf Co. Civ. Proc, § 2780. . for $30,000, purchased the lot at the 08 Co. Civ. Proc, § 2781. 737 To Pay Decedent's Debts. §§ 892, 893. persons entitled, at the time of the sale, in and to the decedent's interest in the real property." ®^ § 892. Same ; conveyance of partial contract interest. — " A con- veyance of the decedent's interest in a part only of the real prop- erty, held under such a contract, transfers to the purchaser all the decedent's right, title, and interest in and to the part so sold; and all rights which would be acquired thereto, by the executor or administrator, or by any person entitled, at the time of the sale, to the interest of the decedent therein, by perfecting the title to the property contracted for, pursuant to the contract. Upon fully complying with the contract, the purchaser has the same right to enforce performance thereof, with respect to the part conveyed to him; and the executor or administrator, or his as- signee, has the same right to enforce performance, with respect to the residue, as the decedent would have had, if he was living. Any title acquired by the executor or administrator, or his as- signee, with respect to the part not sold, must be held in trust for the use of the person entitled to the decedent's interest; subject to the dower of the widow, if any." ^ TITLE FOUETK DISTEIBIJTION OF PEOCEEDS. § 893. Payment of proceeds into court — The proceeds arising from the mortgage, lease, or sale must be paid into the Surro- gate's Court by the executor, administrator, or freeholder receiv- ing the same. For that purpose, he must pay them to the county treasurer, to the credit of the special proceeding, to be retained by him as prescribed in the Code with respect to other moneys paid into that court.^ Upon payment being so made, the heirs and de- visees of the decedent, and their assigns, and all the decedent's re- maining real property, and interest in real property, held under a contract, for the purchase thereof, are exonerated from the debts and liens established by the decree and ordered to be paid, or estab- lished and ordered to be paid subsequently,^ as far as the pro- ceeds so paid over are sufKcient, after deducting the costs and ex- penses allowed by the surrogate, to satisfy those debts or liens.* Immediately after the payment into court of the proceeds of a 99 Co. Civ. Proc, § 2782. 3 See Co. Civ. Proc, § 2788 ; Kenyon 1 Co. Civ. Proc, § 2783. v. Talbot, 2 Dem. 548. 2 Co. Civ. Proc, § 2786. See id., 4 Co. Civ. Proc, § 2786. § 2537; § 66, ante. 47 §§ 894, 895. Disposition of Keal Estate 738 mortgage, lease, or sale, " the surrogate must cause notice of the time and place of making the distribution to be published at least once in each of the six weeks immediately preceding the same, in a newspaper published in the county of the surrogate." ^ § 894. New hearing as to debts, etc., on return, of notice of distri- bution. — At the time and place "designated in the notice, or at the time and place to which the hearing is adjourned, the surro- gate must hear the allegations and proofs of the creditors or lien- ors, and of the persons interested in the estate, or in the application of the proceeds, respecting any demands against the decedent, or for his funeral expenses, then presented, which had not been estab- 'lished or rejected before making the decree. The provisions above recited, relating to contesting and establishing debts, or judgment liens, and as to payment of judgment liens, and preserving the evi- dence thereof, before making the decree, apply to the proceedings respecting any demand so presented. A debt or judgment lien which was established by the decree may be again controverted, upon the discovery of new evidence impeaching the same, and upon notice to the claimant as the surrogate directs, but not other- wise.* § 895. When further sale to be had. — Where the decree was executed with respect to a part only of the real property, or inter- ests in real property, specified therein, and the proceeds of the sale are insufficient, after paying the costs and expenses thereof, to satisfy all the debts established by the decree, and all judgment liens established and decreed to be paid therefrom, together with the demands subsequently established, and all other sums payable out of the same, the surrogate must make an order,'' directing the execution of the decree, with respect to the remainder, or so much thereof as is necessary.* The proceedings thereupon and subse- quent thereto are the same, as upon and subsequent to the first order for the execution of the decree.® Upon the further hearing 5 Co. Civ. Proc, § 2787. And see 8 Co. Civ. Proc, § 2789, as amended id., § 3340. In the county of New 1894. York publication of notice of the time 9 lb. This section supersedes Ack- and place of distribution in the New ley v. Dygert (33 Barb. 176), which York Law Journal alone, without a held, that the statute did not author- publication in an additional journal, ize an order directing the. sale of the to be designated by the surrogate, is intestate's property on the ground insufficient. (Matter of Lesourd, 27 merely that, after the distribution of Misc. 414; 59 N. Y. Supp. 371.) the proceeds of the former sale, there 6 Co. Civ. Proc, § 2788, as amended was a deficiency in the sum remaining 1894. _ for the payment of debts; but that in TAs prescribed in Co. Civ. Proc, such a case, new proceedings must be g 2768; ante, § 878. instituted. 739 To Pay Decedent's Debts. §§ 896-898. above mentioned, or upon the hearing after the further execution of the decree, " the surrogate must also hear the allegations and proofs of any person who claims a right to the surplus money, or any part thereof. A claim so made may be contested by any other person making a like claim.'''' §896. Supplementary decree awarding proceeds; appeal The surrogate must, by a supplementary decree, determine the rights of the creditors, judgment lienors, and other persons interested, to share in the proceeds, and direct distribution accordingly. Where the rights of creditors, or judgment lienors are established and their claims decreed to be paid, and there is a surplus, respect- ing the distribution of which a contest arises, he may make a supplementary decree providing for the payment of the creditors and judgment lienors only, and reserving all questions, as to the distribution of the surplus, to be settled by a second supplementary decree. "An appeal may be taken from either of the supplemen- tary decrees, by any person aggrieved thereby, as from the first decree; except that it is not necessary or proper to make any creditor or judgment lienor a party to an appeal from the second supplementary decree." ^^ § 897. Fixing payments and Investments. — Each supplementary decree must fix the sums to be paid or invested, as hereafter men- tioned, as far as they can be then fixed. If any sum cannot be then fixed, it may be fixed by the order of the surrogate subse- quently made. The surrogate must cause a certified copy of each supplementary decree, and of each order, to be delivered to the county treasurer, who must distribute, pay over, or invest the proceeds in his hands as directed. ^^ § 898. Securities to be in county treasurer's name Except as otherwise specially prescribed in the Code,^^ " a security taken or an investment made, pursuant to any provision mentioned in this chapter, must be taken or made in the name of the county treas- urer, adding his official title, and his successors in office. Each security so taken, and all the papers connected therewith, or with such an investment, and each lease so taken, must be immediately delivered to the surrogate for his approval; and, when approved by him, must be delivered to the county treasurer, who must, 10 Co. Civ. Proc, § 2790. See Davis 1894; Higbie v. Westlake, 14 N Y V. Davis, 4 Redf. 355. 281. 11 Co. Civ. Proc, § 2791, as amended 12 Co. Civ. Proc, § 2792 13 In tit. 5 of c. 18. §§ 899, 900. Disposition of Eeal Estate Y40 from time to time, collect the money due thereupoii, and apply it, under the direction of the surrogate, as prescribed by law for that purpose, or for the application of the money represented by the security." " § 899. Investment of dower fund. — The surrogate must cause a sum so set apart for a widoVs dower, " to be invested by the county treasurer, under the direction of the surrogate, in the public securities of the State, or of the United States, or in per- manent mortgage securities, bearing interest payable annually, or oftener. The interest, or other income, must be paid by the county treasurer to the widow, during her life. After her death, the county treasurer, under the direction of the Surrogate's Court, manifested in an order duly entered, must sell the public securities, or collect the sums loaned upon mortgage, and distribute the proceeds, less the costs and expenses," as above described in respect to the distribution of the remainder of the money, after satisfying the claim for dower. ■'^ § 900. Investment or deposit of infant's surplus " Where sur- plus money is distributable to an infant; or where the interest in the property, represented by it, consisted of a precedent estate, and a remainder or reversion; the decree must provide, as the judgment of the Supreme Court would provide, in an analogous case, for the investment of the money in the public securities of the State, or of the United States; or for the loan thereof, secured by bond, and by mortgage upon unincumbered real property within the State, worth at least, exclusive of buildings thereupon, twice the sum lent; and for the payment of the income, until the majority of the infant or the determination of the temporary interest; and then, for the payment of the principal, to the per- son or persons entitled thereto. Or where surplus money is dis- tributable to an infant, the decree may, in the discretion of the surrogate, direct that the same be paid to his general guardian upon the latter giving such additional security, if any, as the surro- gate directs, or if it is one hundred dollars or less, that it be de- posited by the county treasurer in a savings bank or trust company, 14 Co. Civ. Proc, § 2800. has no power to direct that such prop- is Co. Civ. Proc., § 2795. Although erty be applied in payment of the the surrogate has power to direct the debts of the husband. He can pass investment of surplus, upon the appli- upon the claims of creditors of the in- cation of a deceased married woman's testate, but not upon those of creditors property to payment of her debts, on of the husband. (Arrowsmith v. Ar- the ground that the husband is enti- rowsmith, 8 Hun, 606.) Compare tied to an estate for life therein, he Zahrt v, Zahrt, 1 Dem. 444, 741 To Pay Decedent's Debts. § 901. designated by the surrogate, and that the interest or income thereof be applied to the use of the infant until its majority." ^" § 801. Order and mode of distribution. — The Code provides^^ that the money/* having been paid into court, must be distributed by the supplementary decree in the following order : " 1. The charges and expenses of the mortgage, lease, or sale, and of the publication of the notice of distribution, and the other actual disbursements attending the distribution, must first be paid. " 2. Where an interest under a contract for the purchase of real property was sold, all sums of money, which were due at the time of the sale, pursuant to the contract, and were not assumed by the purchaser, must next be paid out of the proceeds of the sale of that interest. " 3. Out of the remainder of the money, arising upon a sale, the claim of dower, of the decedent's wife, if any, which has not been assigned to her, must be satisfied, by setting apart for invest- ment one-third of the gross proceeds of the property, to which her right of dower attaches; unless, within such time, and upon such notice to her, as the surrogate deems reasonable, she presents an instrument under seal, acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, whereby she consents to accept, in lieu of her dower, a sum, to be ascer- tained by the surrogate, equal to the value of her right of dower in the gross proceeds, according to the principles applicable to life annuities; and, if she presents such an instrument, by paying to her such a sum. If it shall appear to the surrogate that the de- cedent's widow is an infant, lunatic, or otherwise incompetent, and that a general guardian or committee has been appointed, upon proof that it will be for the best interest and advantage of the es^'ate of such infant, lunatic, or incompetent widow, the surrogate must authorize and direct such guardian or committee, in the name of such infant, lunatic, or incompetent widow, having such dower right, to execute an instrument under seal, acknowledged or proved and certified in like manner as a deed to be recorded in the county, whereby such guardian or committee shall consent to accept in lietT of dower a sum to be ascertained by the surrogate as above 16 Co. Civ. Proc, § 2796, as amended 18 Where, pending the proceeding, 1882; revisino; L. 1850, e. 150, §§ 1,2. the premises were deatroyed by fire, The first section of the Act of 1850 held, that the proceeds of a fire insur- was amended by L. 1879, c. 389, which ance policy upon said premises made has not been expressly repealed. payable to the estate should be applied IT Co. Civ. Proc, § 2793, as amended to the payment of the debts. (Matter 1894. of O'Connell, 1 Misc. 50.) § 901. Disposition of Real Estate 742 provided, according to the principles applicable to life annuities j and upon presentation of such an instrument to the surrogate, the value of the right of dower so ascertained by him shall be paid to such guardian or committee. Such instrument shall have the same force and effect as a deed or instrument executed and ac- knowledged by a competent person.-'^ " 4. Out of the remainder of the money, arising upon a mort- gage, lease, or sale, must be paid the costs of the special proceed- ing, awarded to the petitioner in the decree. " 5. Out of the remainder of the money must be paid in full or to such extent as the money applicable thereto will pay the same, and according to their respective priorities, all judgment liens established and ordered paid by the decree, upon either the first or second hearing, and which were not disallowed or held invalid by either of such decrees. But no part of such moneys arising from the disposition of any real property of decedent, or any portion thereof, shall be applied toward the payment of any judgment lien established by the decree, except where such pro- ceeds have arisen from the disposition of such real property, or a portion thereof, upon which said judgment lien is established by decree as existing at the decedent's death. " 6. Out of the remainder of the money, must be paid the sum, if any, which has been found to be due to the executor or admin- istrator, upon a judicial settlement of his account, after applying thereupon the proceeds of the personal property. But this subdi- vision does not authorize the repayment, to an executor or admin- istrator, of any sum paid by him to a creditor of the decedent, ex- ceeding the proportion which that creditor would be entitled to receive from the estate of the decedent, upon the distribution of all the assets of the decedent, and the proceeds of property disposed of " as above described.^" " 7. Out of the remainder of the money, must be paid, in full, the reasonable funeral expenses of the decedent, to the persons 19 Co. Civ. Proc, § 2793. The claim § 2794.) See Hawley v. James, 5 of dower of the decedent's -wife, in real Paige, 318; Hicks v. Stebbins, 3 Lans. property held by the decedent, under 39. a contract for the purchase thereof, 20 See Shute v. Shute, 5 Dem. 1. which must be satisfied as prescribed Under this subdivision, the repre- in this subdivision, " extends only to sentative is not entitled to be paid the annual interest, during her life, fees and legal expenses which he con- upon one-third of the balance remain- traeted in regard to the estate, as the insj, after deducting from the money fund is applicable only to the amount arising upon the sale, all sums due due him for payment of debts and from the decedent, at the time of the funeral expenses of the decedent, sale, for the real property so con- (Matter of Summers, 37 Misc. 575; traeted and sold." (Co. Civ. Proc, 75 N. Y. Supp. 1050.) 743 To Pay Decedent's Debts. § 901. Avhose claims therefor were established and recited as debts, ill the first decree, and were not rejected upon the second hearing. "8. Out of the remainder of the money, must be paid, in full, the other debts, which were established and recited in the first decree, and were not rejected upon the second hearing; or, if there is not enough for that purpose, they, or so much thereof as the money applicable thereto will pay, must be paid in the order prescribed by law for payment of a decedent's debts by an executor or administrator out of the personal assets, without giving prefer- ence to rent, or to a specialty, or to any demand on account of an action pending thereupon ; and paying debts not yet due, upon a rebate of legal interest.^^ " 9. Out of the remainder of the money, must be paid, in like manner, the debts first established by the supplementary decree, or so much thereof as the remainder will pay.^^ " 10. If any surplus remains, it must be distributed among the heirs and devisees of the decedent, or the persons claiming under them, and among those persons who have presented and proved liens upon the interests of those heirs or devisees, or persons claiming under them, which were cut off by the sale; according to their respective rights and priorities, as established in the sup- plementary decree. But if the proceeds of any of the property sold have been, or were to be, converted into personal property, pursuant to a direction contained in the decedent's will, the sur- plus proceeds of that part of the property must be paid to the person entitled thereto, by the terms of the will. Any person having a right of tenancy by the curtesy in such surplus may, if he so elects, receive therefrom a gross sum in satisfaction of such right." ^^ 21 For the interpretation of this sub- lien on the land against the heirs, as division, see Cook v. Woodard, 5 Dem. a valid charge against their interest S7; s. c. as Matter of Wilcox, 11 Civ. in the surplus. (Sears v. Mack, 2 Proc. Rep. 115; s. c. as Matter of Bradf. 394.) Thus, where the heir Woodard, 13 St. Eep. 161. In the conveys a part of the inheritance disposition of the proceeds, regard with warranty, and the land was sub- may be had to the fact that some of sequently sold by order of the surro- those debts are also entitled to be par- gate, for the decedent's debts, it was tially or fully paid out of funds aris- held, that though the grantor was a ing from the sale of other real estate married woman, the grantee had an in another State. (Lawrence v.- El- equitable lien upon the residue of the mendorf, 5 Barb. 73.) As to the rights inheritance, to the extent of her of the assignee or receiver of a cred- proportion of the proceeds of the itor to receive the latter's share, see sale. (Eddy v. Traver, 6 Paige, 521.) Swartout v. Schwerter, 5 Eedf. 497. Where, after the sale of a decedent's 22 See Kenyon v. Talbot, 2 Dem. 548. real estate and conveyance thereof to 23 The last sentence of this subdivi- the purchaser, the sheriff, on the day sion was added by amendment of 1893. of distribution of the proceeds of the The surrogate may admit claims by sale, exhibited to the surrogate an ex- §§ 902, 903. Disposition of Eeal Estate 744 §'902. Proceedings, how affected by others, taken against the property — The (jommeiiceineiit or pendency of an action or spe- cial proceeding, having for its object the sale, either absolutely or contingently, of property liable to be disposed of as heretofore described; or the foreclosure by advertisement, of a mortgage thereupon ; or any proceeding to sell such property, taken pur- suant to a judgment, or by virtue of an execution, does not affect any of the proceedings taken as heretofore described, unless the surrogate so directs. "After making a decree directing a mortgage, lease, or sale, the surrogate may, and, in a proper case, he must, stay the order to execute the decree, with respect to the property affected by the action, or special proceeding, or by the proceedings then pending, until the determination thereof, or the further order of the surrogate with respect thereto. If, in the course thereof, a sale of any of the property has been made, before making the decree in the Surrogate's Court, the decree must provide for the application of the surplus proceeds belonging to the dece- dent's estate. If such a sale is made afterward, the directions contained in the decree, relating to the property sold, are deemed to relate to those proceeds." ^ § 903. Surplus in other proceedings payable to surrogate. — Where real property, or an interest in real property, liable to be disposed of as heretofore described, is sold, in an action or a special proceeding, specified in the last paragraph, " to satisfy a mortgage or other lien thereupon, which accrued during the dece- dent's lifetime; and letters testamentary or letters of administra- eeution against one who was entitled and the entry of an order for their to a ishare of such proceeds, and asked payment and for the distribution of that such share be applied on the exe- the surplus, and after such payment cution, the judgment not having been and a partial distribution had been docketed in the county of the surro- made thereunder, a jvidgment constru- gate, until the day of distribution, ing decedent's will was rendered by and, upon the refusal of the surrogate, the Supreme Court, in an action pre- an order was obtained from the county viously brought for the purpose, and judge for the examination of the sur- thereupon an order was granted by a rogate, and forbidding him to make any judge of that court, directing the sur- disposition of the fund, — Held, that rogate to pay out of the surplus an while the county judge could order allowance and costs to the attorney such examination, he had no power to who conducted the action in the Su- restrain the disposal of the fund ; that preme Court, — Held, that the attor- the judgment not being a lien at the ney should have applied to the surro- time of the sale of the premises, pay- gate at the time the order for distri- ment of the share must be made to the bution was made, and that the judge heir, or to such person as might be of the Supreme Court had no jurisdic- appointed in supplementary proceed- tion to make the order directing such ings to receive it. (Davis v. Davis, 4 payment from the surplus. (Clocke v. Redf. 355.) After the sale of some of Igglesden, 3 Redf. 339.) decedent's real estate to pay certain 24 Co. Civ. Proc, § 2797. See Har- debts, upon an order of the surrogate, vey v. McDonnell, 1 N. Y. Supp. 86. 745 To Pay Decedent's Debts. § 903. tion, upon the decedent's estate, were, within four years before the sale, issued from a Surrogate's Court of the State having juris- diction to grant them; the surplus money must be paid into the Surrogate's Court from which the letters issued, pursuant to the provisions of section 2537, and the receipt of the county treasurer shall be a sufficient discharge to the person paying such money. If the sale was made pursuant to the directions contained in a judg- ment or order, the surplus remaining after payment of all the liens upon the property, chargeable upon the proceeds, which ex- isted at the time of the decedent's death, must be so paid. If the sale was made in any other manner, the surplus, exceeding the lien to satisfy which the property was sold, and the costs and ex- penses must, within thirty days after the receipt of the money from which it accrues, be so paid over by the person receiving that money." ^^ Where surplus money is so paid into a Surrogate's Court, and a petition for the disposition of property, as heretofore described, " is pending before him ; or is presented at any time before the distribution of the money; the money must be dis- tributed as if it was the proceeds of the decedent's real property, sold pursuant to the decree. If such a petition is not pending or presented, or if a decree for the disposition of the decedent's prop- erty is not made thereupon, a verified petition, praying for a de- cree directing the distribution of the money among the persons entitled thereto, may be presented by any of those persons. Each person, who would be entitled to share in the distribution of the proceeds of a sale, must be cited to show cause, why such a decree should not be made. Service of the citation may be made upon all the persons designated therein, by publishing the same in two newspapers designated " as prescribed in the Code,^® at least once in each of the fotir su:ccessive weeks immediately preceding the return day thereof, except that personal service must be made upon the husband, wife, heirs, and devisees of the decedent, and also upon every other person claiming under them, or either of them, who resides in this State. Upon the return of the citation, the rights and priorities of the persons interested must be established, and a decree for distribution must be made, as if it was the pro- ceeds of real property sold 27 25 Co. Civ. Proc, § 2798, as amended 27 Co. Civ. Proc, § 2799 ; German 1893. See § 66, ante; Matter of Ged- Sav. Bank v. Sharer, 25 Hun, 409. ney, 30 Misc. 18; 62 N. Y. Supp. 1023; Creditors are "interested persons," Matter of Dusenbury, 33 Misc. 166; and are entitled to participate in the 68 N. Y. Supp. 372. surplus, though no application for a 26 In art. 1, tit. 2, c. 18. See § 79, sale of lands had been made within ante. the three years. (Matter of Calla- ghan, 23 N. Y. Supp. 378.) § 904. Disposition of Eeal Estate 746 TITLE FIFTH. miscellaneous PEOVISIOITS. § 904. Costs and expenses of the proceeding The executor, ad- ministrator, or freeholder, disposing of the property, will be al- lowed his expenses out of the proceeds of the sale brought into court ; and a reasonable sum for his own services, not exceeding five dollars for each day, actually and necessarily occupied by him in disposing of the property, and such a further sum as the surrogate thinks reasonable, for the necessary services of his at- torney and counsel therein.^* An allowance which exhausts the fund is not " reasonable." ^^ The costs and allowances of the parties can only be fixed and adjusted at the time of the entry of the supplementary decree, after the deposit of the proceeds of the sale with the county treas- urer.^" Under section 2563, costs or allowances cannot be granted to a petitioning creditor, the right to an award thereof being con- fined, by that section, to the executor or administrator, and a free- 28 Co. Civ. Proc, § 2563, which sale of the real estate, there was not changes the limit of the fee from two only no lien, but no right to priority to five dollars per day, and abrogates of payment, such priority being con- the former fee for a deed. The pres- fined to the " charges and expenses of ent provision conforms to Higbie v. the sale." And apart from the stat- Westlake, 14 N. Y. 281, and Matter of ute, in any case where moneys are Lamberson, 63 Barb. 297. The former realized or received under the orders ease held, that a reasonable allowance of a court competent to deal equitably for professional advice and assistance with the fund, there can be no lien was a necessary expense, but that upon the same for any services ren- where there was no contest, charges dered; but such services must be paid such as allowed by the chancery fee- for, if it be sought to charge the fund, bill, for services in litigated cases, by the order of the court where the would be excessive ; also that the per matter is pending. { lb. ) See Rose v. diem allowance could only be granted Rose Assn., 28 N. Y. 184. A free- for the time necessarily and actually holder appointed to sell the real estate occupied in the business, and that the of a decedent may, under sections 2563 statute did not warrant an allowance and 2786 of the Code of Civil Pro- as a salary during the conduct of the cedure, be allowed his expenses, coun- business. In the latter, it was held, sel fees, etc., by the surrogate upon that there could be no lien upon such rendering his account of the sale, and money, even for the fees and disburse- is not obliged to pay over to the ments upon the application for the county treasurer the gross proceeds of sale; that the entire fund must be the sale and wait for such payment brought intact into the office of the until the final distribution under sec- surrogate, and the attorney could then tion 2793 of the Code of Civil Pro- apply to that officer, whose duty it cedure. (Matter of McGee, 65 App. would be, before making the general Div. 460.) distribution, to award and pay him a. 29 Matter of Matthewson, 1 Connoly, reasonable fee for his services in the 254. matter of the sale, together mth his 30 Long v. Olmsted, 3 Dem. 581 ; necessary outlay thereon; also that, Matter of Laird, 42 Hun, 136; Matter for services rendered to the adminis- of Lamberson. 63 Barb. 297; Matter tratrix, apart from the matter of the of Mace, 4 Redf. 325. 747 To Pay Decedent's Debts. §§ 905-907. holder appointed to execute the deeree.^^ Under section 2750, the surrogate may, in his discretion, give costs to a petitioning creditor. These costs are governed hy section 2561, and the creditor is not entitled to a per diem allowance. ^^ But a creditor other than the petitioner, whose claim has been contested and allowed, cannot be awarded costs under section 2561, notwith- standing the general character of that section, inasmuch as no provision for the payment of such an award is made by section 2793 ; after compliance with the directions of which section, the entire proceeds of the disposition will have been exhausted. ^^ § 905. Compelling account by executor, etc. — The surrogate may compel the judicial settlement of the account of an executor or administrator, where a decree for the disposition of real property, or of an interest in real property, has been made as mentioned in this chapter, and the property, or a part thereof, has been dis- posed of by him pursuant to the decree.^* § 906. Evidence of appointment of special guardians. — " Where the records of the Surrogate's Court have been heretofore, or are hereafter, removed from one place to another, in either the same or another county, and twenty-five years have elapsed after a sale or other disposition of real property, or of an interest in real property [as heretofore described], the due appointment of a guardian for each infant party to the special proceeding must be presumed, and can be disproved only by affirmative record evi- dence to the contrary." ^^ § 907. Eeimbursement of heir, etc — Where a decree has been made for the application of the proceeds of real property to the payment, of the decedent's debts or funeral expenses, or judgment liens established and ordered paid, as heretofore described, " and assets, which should have been applied thereto, are afterward dis- 31 Long V. Olmsted, 3 Dem. S81. were held responsible to the surrogate, 32 Matter of Matthewson, 1 Connoly, as trustees, and the proceeds were 157; 19 St. Rep. 208. Under section equitable and not legal assets. (Tap- 2561, the allowance which the surro- pen v. Kain, 12 Johns. 120.) And gate is authorized to make to a spe- see Willoughby v. McCluer, 2 Wend, cial guardian of an infant devisee in 608; Peck v. Mead, id. 470. this proceeding is limited to $70. 35 Co. Civ. Proc, § 2785. The for- ( Matter of Dodge, 40 Hun, 443; revd., mer method of serving minors and ap- on other points 1 05 N. Y. 585 ) . pointing guardians in these proeeed- 33 Long V. Olmsted, 3 Dem. 581 ; ings, which the reader who is con- Cook V. Woodard, 5 id. 97. cerned in the validity of past proceed- 34 Co. Civ. Proc, § 2726, subd. 3. ings should refer to, will be found in A freeholder appointed to sell, etc., 1 R. S. 100, §§ 3, 4; L. 1837, c 460 must also account. (§ 2726.) Under §§ 38, 39; Sheldon v. Wright, 7 Barb' 1 R. L. of 1813, § 452, the executors 39; 5 N. Y. Supp. 497, § 907. Disposition of Eeal Estate. 748 covered; or, for any other reason, money or other personal prop- erty of the decedent, which should have been applied thereto, after- ward comes to the hands of the executor, administrator, legatee, or next of kin; the heir, devisee, or other person aggrieved, may maintain an action to procure reimbursement therefrom." *^ Al- though ordinarily where accrued taxes have been paid out of the proceeds of a sale of the land on foreclosure, and a surplus is real- ized for the executor, as trustee of the land, it is his duty to reim- burse the trust fund to the amount of such taxes out of the per- sonal estate, yet where there are unsecured creditors of the estate whose claims e!xceed the amount of the personal property, such reimbursement will not be directed, as its omission will avoid circuity of action, the trust fund being ultimately liable for the debts.^'^ 36 Co. Civ. Proc, § 2801, as amended entitled to be reimbursed out of such 1894; conforming to Couch v. Dela- subsequently discovered assets. See plaine (2 N. Y. 397), holding that also Graham v. Dickinson, 3 Barb. Ch. where the personal estate was insufiS- 169. cient, and the land was sold for the 37 Smith v. Cornell, 113 N. Y. 320; payment of the debts under a surro- distinguishing Smith v. Cornell, 111 gate's order, and assets were subse- id. 554. quently discovered, the devisees were CHAPTER XIX. ACCOUNTINGS. TITLE FIEST. ACTIOlir FOE AN ACCOUNTING. § 908. Jurisdiction of the Supreme Court. — The Supreme Court, by virtue of its powers as a court of equity, and as the successor of the late Court of Chancery, has a general jurisdiction over trusts and trustees.-^ As a court of equity, in the exercise of this power, it regards executors and administrators as trustees — which, indeed, is now their character at law — and will accordingly compel them to render an account of their proceedings, disclosing the assets and the manner of the application thereof, and will require the due performance of their duty. Such a court may thus, upon a bill filed by a party in interest, direct a general ac- count of the estate and debts, and decree payment and distribu- tion in the regular course of administration. But a court of equity will not take cognizance of an action, for the settlement of an estate, disconnected with the enforcement of a special and express trust, unless special reasons are assigned, and facts stated, to show that complete justice cannot be done in the Surrogate's Court.^ There are, however, many cases in which, by reason of 1 As to the powers of superior city was no reason for resorting to another courts, in this regard, prior to their forum than that established by the abolition, see Christy v. Libby, 5 Abb. statute for the final settlement of an Pr. (N. S.) 192; 2 Daly, 418; Landers executor's accounts. No objection ap- V. Staten Island R. Co., 53 N. Y. 450; pears to have been taken on the rec- Skidmore v. Collier, 8 Hun, 50; Van ord. If it had been, a grave jurisdic- Sinderen v. Lawrence, 50 id. 272; tional question would have been pre- § 62, ante, and cases infra. sented. We do not wish to be under- 2 Chipman v. Montgomery, 62 N. Y. stood, however, as assenting to this 221. Hard v. Ashley (117 id. 606; procedure. These proceedings belong, 28 St. Rep. 601) was an action by law, to Surrogates' Courts, which brought in the Supreme Court to ob- were constituted to take jurisdiction tain an accounting by the executor of them, and the powers of which are and a distribution of the estate in his appropriate and adequate for that hands, and incidentally to (fbtain a purpose." To the same effect. West- construction of the will. 5 The court, erfield v. Rogers, 63 App. Div. 18; 71 on appeal. Gray, J., said: "There N. Y. Supp. 401; Borrowe v. Corbin, [7491 §908. Accountings. 750 the necessity of eomprehensive relief by injunction, or in conse- quence of a dissension between co-executors/ or because questions of individual right,* or questions which the surrogate is not au- thorized to determine,^ are inseparably connected with and in- volved in the controversy, or because the estate or executor is foreign,® a clear case of necessity for the interposition of a court of equity is presented.^ The surrogate, however, so far as he has jurisdiction, has a jurisdiction concurrent with that of a court of equity; and a court of equity will not, without some special ground, interfere to supersede the exercise of the surro- gate's powers.^ The power given to a surrogate to compel an ac- counting by an executor or administrator is not exclusive, but concurrent with that of the Supreme Court, and an action for that purpose, and to prevent the wasting of the trust estate on be- 31 App. Div. 172; 52 N. Y. Supp. 741; affd., 165 N. Y. 634; Arkenburgh v. Wiggins, 13 App. Div. 96; 43 N. Y. Supp. 294 ; affd., 162 N. Y. 596 ; Mat- thews V. Studley,, 17 App. Div. 203; 45 N. Y. Supp. 201; Delabarre v. Mc- Alpin, 71 App. Div. 591. Compare Ludwig V. Bungart, 48 App. Div. 613; lleeks V. Meeka, 34 Misc. 465 {Second Dept.), where it is said that the Su- preme Court should refuse to take ju- risdiction only where that of the Sur- rogate's Court has already been in- voked. 3 Simpson v. Simpson, 44 App. Div. 492. See Wood v. Brown, 34 N. Y. 337 ; Stevens v. Stevens, 69 Hun, 332 ; Smith V. Lawrence, 11 Paige, 206; Decker v. Miller, 2 id. 149; Wurtz v. Jenkins, 11 Barb. 546; § 525, ante. 4 Simpson v. Simpson, supra. See Day V. Stone, 15 Abb. Pr. (N. S.) 137. 5 Forman v. Lawrence, 6 Sup. Ct. (T. & C.) 640; Steinway v. Von Ber- nuth, 59 App. Div. 261; 69 N. Y. Supp. 1146; appeal dismissed, 167 N. Y. 498. It is not enough to allege the special facts which would oust the surrogate of jurisdiction, but they must be true, and must be established by sufficient evidence. (Blake v. Barnes, 28 Abb. N. C. 401; 45 St. Eep. 130.) In that case, the evidence showed that by reason of an adjust- ment between the partnership and the estate of a deceased partner, to which the legatees had assented, the estate had no claim against the firm, and the firm had no claim against the estate. — Held, that a legatee could not sup- port an action for an accounting against the executors and surviving partners of the testator in the Su- preme Court on the ground that it could not be left to the executors to compel the partnership to account, by reason of the fact that they were themselves surviving partners; and that the legatee was not entitled to pass over the Surrogate's Court and ask for settlement of the executor's account in the Supreme Court. 6 See McNamara v. Dwyer, 7 Paige, 239; Lawrence v. Elmendorf, 5 Barb. 73; Montalvan v. Clover, 32 id. 190; (xulick V. Gulick, 33 id. 92. A foreign administrator bringing assets into this State may be sued here for an ac- counting. (Marshall v. Bresler, 1 How. Pr. [N. S.] 217.) To sustain an action against a foreign executor, there must be an allegation of such facts and circumstances as constitute the action one in equity, as distin- guished from an action at law simply for the recovery of money. (Metealf V. Clark, 41 Barb. 45, and cases cited.) See ante, § 518. T So also, by c. 654, L. 1881, provi- sion is made for the relief of sureties of any trustee, committee, or guardian appointed by, or accountable to, the Supreme Court or a County Court, on petition of the surety. See Co. Civ. Proc, § 812, amended 1892. 8 Seymour v. Seymour, 4 Johns. Ch. 409; Moffat v. Moffat, 3 How. Pr. (N. S.) 156. 751 Accountings. §908. half of ttose interested therein, is maintainable.® Such a case is where, besides calling upon the executor, administrator, or trustee to render an account of his acts and proceedings, a devastavit is alleged, and the fund or property is sought to be reclaimed from a third party. It is a familiar principle of equity jurisprudence that " as between the cestui que trust and trustee, and all parties claiming under the trustee, otherwise than by purchase for valu- able consideration without notice, all property belonging to a trust, however much it may be changed or altered in its nature, or character, and all the fruit of such property, whether in its original or altered state, continues to be subject to or affected by the trust." " The plaintiff has an election in such a case to pro- ceed against the trustee alone, or to join a third person who is claimed to have fraudulently acquired from the trustee any part of the trust estate.-'^ The latter is regarded as constructively a trustee mth the former, and the liability of the one is not differ- ent or distinct from that of the other. ^^ It is well settled that a sHaddow v. Lundy, 59 N. Y. 320. If the representative colludes with the decedent's fraudulent vendee, or after reasonable request, refuses to take proceedings to impeach his title and reach the property in his hands, a creditor may maintain an action against the representative and the vendee, for that purpose. (Bate v. Graham, 11 N. Y. 237.) See § 543, ante. In an action in the Court of Common Pleas, by the heirs, to set aside an agreement relinquishing plaintiff's share in the estate, upon the ground of fraud and mistake, where the complaint asked that de- fendant " be held to account and to pay " to one of the plaintiffs " his dis- tributive share of the estate," — Held, that the accounting should be taken in that court, it having jurisdiction, instead of requiring defendant to ac- count, as administratrix, before the surrogate. (Busch v. Busch, 12 Daly, 476.) An heir or next of kin may maintain an action against the execu- tor to establish his right to property not accounted for before the surrogate. (Guibert v. Saunders, 10 St. Rep. 43.) See Foote v. Bruggerhof, 66 Hun, 406 ; 21 N. Y. Supp. 509. loPennell v. Duffell, 4 De Gex, M. & G. 372; Cooper v. Weston, 16 S executor for surrogate. (Matter of Kane, 64 App. the support of infant children of the Div. 566; 72 N". Y. Supp. 333.) testator, before his receipt of any 5 The account should be made up so moneys in the capacity of guardian, as to show^, in the first instance, the should be credited in his account as net amount of assets in the hands of executor. (Matter of Gearns, 27 Misc. the accounting party, and the dis- 76; 58 N. Y. Supp. 200.) tributive share to which each legatee 807 Accountings. § 981. stated, and whetlier they have guardians, and, if so, their names, residences, and the mode of their appointment; and if any are females, whether they are married or unmarried — these circum- stances being necessary to enable the surrogate to pass on the pro- priety of payments made to them, or their right in respect to claims of legacies or shares. The account should also state, as part of the proceedings, when the inventory was filed; when the advertisements for claims were published; what claims were al- lowed, what disputed, and what were rejected, and the time and manner in which they were rejected or disputed; what suits, if any, have been commenced thereon ; which of them have been de- termined, and how, and which are pending, and the amount claimed. This is necessary, in order to enable the surrogate to determine if any of the estate is to be reserved for disputed claims. The account should also state what claims have been presented and allowed since the expiration of the advertisement for claims. If no such claims have been rejected or disputed and no suits have been commenced, it must be so stated. If the accounting party has a claim for debt owing to him by the dece- dent, it should be stated with some fullness. If he took no voucher when he made payment of a claim, or if the voucher taken has been lost or destroyed, he should state the fact, and attach the proof of payment.® All these things are essential in the account.'' It is material, also, that the character of the debts paid, allowed, or prosecuted should be stated; that is, whether they are judg- ments docketed, etc., or debts of an inferior class.* If any other fact has occurred, as a part of the proceedings, which may affect the estate, or the rights of any party in interest, or his own rights, he ought to state it. § 981. Separate account for each of several trusts In the case of several distinct trusts, as where the decree settling the ac- counts of executors directs them to set apart twelve different trusts as provided by the will, the trustees, in subsequently accounting, may properly do so by twelve separate petitions and citations, instead of one, the trustees having kept the accounts as to each See § 984, post. 8 See Matter of Jones, 1 Redf. 263. T But it need not show the amount Where executors credit themselves of the residuary estate when it does with payment of a debt by offsetting show the amount of such estate, sub- one due the estate, they must show ject to deductions which can only be such offset has been allowed by the fixed at the entry of the decree of set- other party. {In re Archer, 23 N. Y. tlement. (Bullard v. Benson, 1 Dem. Supp. 1041.) 486.) §§ 982, 983. AccouJSTiNGS. 808 trust separately; and the surrogate properly denied a motion to compel a consolidation of the accounts.^ § 982. Verification of account — To each account " must be ap- pended the affidavit of the accounting party, to the effect that the account contains, according to the best of his knowledge and belief, a full and true statement of all his receipts and disburse- ments on account of the estate of the decedent; and of all money and other property belonging to the estate, which have come to his hands, or been received by any other person, by his order or authority, for his use ; and that he does not know of any error or omission in the account, to the prejudice of any creditor of, or person interested in, the estate of the decedent." ^° The like affi- davit must be appended to each account filed with the surrogate by a testamentary trustee, " except that the expression, ' the trust created by the will,' with such other description of the trust as is necessary to identify it, must be submitted in place of the words, ' the estate of the decedent.' " ^^ § 983. Production of vouchers — The accounting party must produce and file a voucher for every payment, except in one of the following cases: " (1) He may be allowed, without a voiicher, any proper item of expenditure, not exceeding twenty dollars, if it is supported by his own uncontradicted oath, stating posi- tively the fact of payment, and specifying when and to whom the payment was made; but all the items so allowed against an estate, on all the accountings of all the executors, or adminis- trators, shall not exceed five hundred dollars. (2) If he proves, by his own oath, or another's testimony, that he did not take a voucher when he made the payment; or that the voucher then taken by him has been lost or destroyed; he may be allowed any item, the payment of which he satisfactorily proves by the testi- mony of the person to whom he made it; or, if that person is dead, or cannot after diligent search be found, by any competent evidence, other than his o^vn oath or that of his wife." ■'^ 9 Matter of Willets, 112 N. Y. 289. should not be related, in favor of the 10 Co. Civ. Proc, § 2729, as amended representative of an estate under cer- 1893 ; consolidating former § 2733. tain circumstances, injustice would be See Williams v. Purdy, 6 Paige, 166; done, and a serious obstacle to the Gardner v. Gardner, 7 id. 112. assumption of such trusts be pre- 11 Co. Civ. Proc, § 2811. vented. (Matter of Pollock, 3 Redf. 12 Co. Civ. Proc, § 2729, as amended 100, 130.) So, it was held, that execu- 1893; consolidating former § 2734. tors were not bound to require vouch- And see Co. Civ. Proc, § 2811. The ers from creditors whose claims were last clause modifies the provision of attested by the decedent's books of the former statute, as to which it was account, and by personal information said to be manifest, that if the rules of their correctness from his book- 809 Accountings. 984. § 984. Proof on nonproduotion of voucher " But an allowance cannot be so made, unless the surrogate is satisfied that the charge is correct and just." ** The accounting party is not bound to establish payments for which he presents Toiichers unless denied by objections, and the burden of impeaching such payments is on the contestant.^* The lack of vouchers is not necessarily an insuperable obstacle to passing the accounts. The surrogate, by reason of the nature of his office, may, by evidence morally admis- sible, ascertain where truth and justice lies and decree accord- ingly.-'^ It seems, however, that an oral admission by contes- keeper (Gillespie v. Brooks, 2 Redf. 349) ; and that information from the widow that a certain sum was due from the decedent to a servant was sufficient to justify the executor in making payment without a voucher, (lb.) In Will cox v. Smith (26 Barb. 316), it was held, that the statute was imperative in requiring the pro- duction of vouchers; and that if an account could be allowed in any case without vouchers, and without proof, other than the oath of the executor or administrator, it was only where creditors refused to give vouchers, or where they had been lost or destroyed. In Westervelt v. Gregg ( 1 Barb. Ch. 469, 479 ) , it was held, that an estate should not be subject to the useless expense of producing evidence to prove the items in a, verified account, when the correctness of those items was not in fact questioned by the parties in in- terest. 13 Co. Civ. Proc, § 2729, as amended 1893. See Peck v. Sherwood, 56 N. Y. 615. Payments made by the repre- sentative cannot be rejected merely because neither the accounts, nor the oath to the accounts, disclose to whom such payments have been made; it is sufficient if the testimony of the rep- resentative shows to whom the money has been paid; and it seems that in case of payments under $20, where there is no reason to doubt that the payment has been made, such pay- ments will not be disallowed in all cases, even where the representative cannot remember the name of the payee', and cannot identify him. Mat- ter of Nichols, 4 Eedf. 288; decided under the R. S. It is not an in- superable objection to allowing a gross sum for disbursements made by the executor, in managing the estate for a series of years, that he is not liable to give in detail all the various items of charge. (Brohde v. Bruner, 2 Redf. 333.) See Cornwell v. Deck, id. 87. WBoughton V. Flint, 74 N. Y. 477; Bainbridge v. McCullough, 1 Hun, 488; Carroll v. Hughes, 5 Redf. 337. Where an administrator actually has vouchers for claims under $20 which he has paid, the surrogate may require their production upon his accounting in order that they may be scrutinized by the contestants, and his refusal to do so will be a ground for suspicion and furnish the surrogate sufficient reason in the exercise of his discretion for the rejection of such claims as credits. (Orser v. Orser, 5 Dem. 21.) The neglect of the representative to require the affidavit of the claimant on the presentation of the debt, as he is authorized to do, is not in itself ground for rejecting the allowance, if the demand is supported by a voucher upon the accounting. (Metzger v. Metzger, 1 Bradf. 265.) See § C40, ante. 15 Matter of Langlois, 2 Connoly, 481; 26 Abb. N. C. 226. In that case, the books of a deceased executrix were, without objection, received in evidence in support of the account of her suc- cessors, and contestants' counsel orally admitted in open court the correctness of the account. In Matter of Wagner (119 N. Y. 31), the remark of Gray, J., though obiter, commends itself: " The general jurisdiction conferred upon the Surrogate's Court in mat- ters relating to the conduct of execu- tors and administrators would seem meaningless, if not an absurdity, if it did not comprehend the right to de- cree intelligently, and upon equitable principles, and to order their conduct upon principles of justice and of rea- son." In Willcox V. Smith (26 Barb. 343 ) , after stating the stringent rules to which executors and administrators are held in establishing their accounts. §985. Accountings. 810 tant's counsel in open court, of the correctness of the account, is a complete waiver of the objection that proper vouchers or evi- dence have not been produced.'* SUBDIVISION 2. THE SUBJECT-MATTEE OF THE ACCOUNT. § 985. The assets mentioned in the inventory. — If a proper in- ventory has been filed, it will usually disclose the principal assets for which the representative is bound to account; and presump- tively, the value fixed in the inventory is the value for which he must account.'^ The inventory is prima facie evidence against him, both of what the assets consist of and of their value. But the inventory is not conclusive against either party. The repre- sentative has a right to show that property was included in the inventory which, in fact, did not belong to the estate,*^ and he may also show that property belonging to the estate was, in fact, of less value than the amount at which it was inventoried, and that, notwithstanding his diligence and fidelity, he has been un- able to realize the amounts contained in the inventory.'" So, and pronouncing them " eminently just," the court said these rules " should not be departed from except in cases of the most urgent necessity, and in order to prevent absolute injus- tice." In Matter of Gerow (23 N. Y. Supp. 847 ) , the surrogate of Rock- land held, that, in the absence of vouchers, some proof of payment must be furnished by competent witnesses, as provided by subdivision 2. Refer- ring to Matter of Langlois, he said: " If a surrogate can substitute his own sense of justice in place of that of the Legislature, as embodied in sec- tion 2734, and determine, that vouchers need not be taken, then the rule is practically annulled." Compare Mat- ter of Cruger, 34 N. Y. Supp. 191; 68 St. Rep. 241. In Matter of Grant (40 St. Rep. 944; 16 N. Y. Supp. 716), the General Term of Fifth Department re- versed a decree allowing payments for a tombstone and funeral expenses, where no vouchers were filed and no evidence showing payment appeared in the case on appeal. The letter, as well as the policy of the statute, re- quire that the oath of the accounting party, in the case of a lost or de- stroyed voucher, should be excluded. But where he is called as a witness by the contestant and examined as to such payments, his testimony concern- ing payments made by him, where he took vouchers, which are lost, con- cludes the contestant. (Rose v. Rose, 6 Dem. 26; s. c. as Matter of Rose, 19 St. Rep. 783.) 16 Matter of Langlois, supra. IT Matter of Childs, 26 N. Y. Supp. 721; Matter of Shipman, 82 Hun, 108; 31 N. Y. Supp. 571; Matter of Maaek, 13 Misc. 368; 35 N. Y. Supp. 109. See Co. Civ. Proc, § 1832. 18 Where the appraisers had failed to set apart the statutory allowance to the widow, it may be done on the accounting. (Matter of Maack, supra. ) 19 Co. Civ. Proc, § 1832; Sehultz v. Pulver, 11 Wend. 361. Where debts due decedent, to a large amount, were inventoried as worthless, and the ex- ecutors, under the advice of decedent's bookkeeper, who was familiar with the circumstances, did not attempt to col- lect them by suit, — Held, they were not chargeable with such debts, in the absence of evidence that the debts might have been collected. (Gillespie V. Brooks, 2 Redf. 349.) Where the surviving partner is also the executor or administrator of the deceased part- 811 Accountings. § 986. where the representative received money paid to him by mistake, as due to the estate, he is not chargeable Avith it as assets, unless the person paying it has waived his claim to recall it.^" He may also show that the value placed upon any article of the assets in the inventory was excessive, but very clear proof of this should be required. It is not enough to show that he has not realized the inventory value. Thus, if he sells assets at the inventory valuation, and, instead of securing payment of the price, gives a long credit without sufficient security, and by this negligence loses a part of the price, he is not entitled to a diminution of the valuation upon the ground that the price for which he bargained was higher than he could have secured on a cash sale.^^ Upon the same principle, if the executor buys in assets for his own benefit, though in the name of another person, at less than the inventory price, he cannot be allowed to account at only the price fixed by the sale. In such a case, he is properly chargeable with the value of the assets so sold; and in the absence of any decisive and satisfactory proof otherwise, the best evidence will be the sworn inventory filed by the representative himself.^^ § 986. Impeaching inventory. — On the other hand, the parties interested may show that assets, other than those contained in the inventory, have come to the hands of the representative, or might have come, by the exercise of due care and attention. ^"^ ner, a statement of the partnership ported to them the sum of $475, as affairs is incidental to the settlement collected from a tenant, which was of the accounts of the executor or not actually collected; and the execu- administrator, and, in a case of final tors, in accounting before the surro- accounting, is absolutely necessary, gate, credited the estate with that (Marre v. Giuochio, 2 Bradf. 165.) sum. But the tenant having failed, The books of the firm and the balance and the sura remaining uncollected, sheet, showing the amount due the es- without fault of the agent, — Held, tate, are evidence against him on his proper for the executors to repay it, accounting. And if he claims that and charge it in their account, any deduction shall be made with ref- 21 Hasbrouck v. Hasbrouck, 27 N. erence to the uncertain value of the Y. 182. assets, the burden is upon him to 22 Schenck v. Dart, 22 N. Y. 420. show what corrections, if any, are to In Wright v. Fleming (71 N. Y. 612), be made. (Matter of Saltus, 3 Abb. an administrator's accounts showed a Ct. App. Dec. 243.) sale of bonds belonging to the estate, 20 Johnson v. Corbett, 11 Paige, and he accounted for the proceeds. 265. lu Matter of Pollock (3 Redf. In the absence of any objection to 101), the executor, in his accounts, them or proof tending to impeach the erroneously charged himself with sums statement, — Held, error for the sur- of money, — Held, it did not prevent rogate to charge him with the value him from afterward, on his account- and interest, as if he had retained ing, claiming that he was not properly them. See Matter of Yetter, 44 App. chargeable with them. See Matter of Div. 404; 61 N. Y. Supp. 175; affd., Rembe, 23 Misc. 44; 51 N. Y. Supp. 162 N. Y. 615. 507. In Betts v. Betts (4 Abb. N. C. 23 The burden of so doing is upon 324, 439), an agent of executors re- the contestant. (Matter of Mullon, §987. Accountings. 812 The inventory may be rebutted by showing that the account which the representative renders is false or erroneous in the omission of assets received, or which ought to have been received, or by showing that the accounting party has intentionally failed to account for parts of the estate, or made himself liable by wrong dealing or negligence.^* §987. Assets not in inventory — Where the existence of other assets is alleged, for which the representative has not accounted, the surrogate has, of course, jurisdiction to determine the ques- tion; and if the representative, admitting that the articles referred to belong to the decedent, sets up a gift by the decedent to him before death, the surrogate has . jurisdiction to determine the question of a gift as necessarily incidental to the settlement of the accounts, and making a decree for distribution.^* It will often happen that assets have been acquired since the filing of the inventory, the existence of which was unknown at the time, or depended on a contingency, making their inventory and appraisal impracticable. In case of an equitable conversion, the executor has, by virtue of his office, the administration of both kinds of property, real and personal, and shovild account for all as assets.^'' 145 N. Y. 98; 64 St. Eep. 551; Matter of Van Sise, 38 Misc. 155.) Co. Civ. Proc, § 1832, relating to the rebuttal of inventories, was not designed to operate upon an accounting where an administrator's management of his trust is upon trial. (Matter of Wood- worth, 5 Dem. 156.) 24Hasbrouck v. Hafibrouck, supra; Halsted v. Hyman, 3 Bradf. 426; Montgomery v. Dunning, 2 id. 220. See Matter of Tobin, 40 St. Eep. 366; 16 ISr. Y. Supp. 462. The mere fact that decedent owned certain property some years before her death, does not authorize the presumption that she died the owner of it. (Matter of Ry- alls, 80 Hun, 459; 30 N. Y. Supp. 455.) 25 Merchant v. Merchant, 2 Bradf. 432, 437. See §§ 584, 967, ante. Also Doty V. Willson, 47 N. Y. 580 ; Fowler V. Loekwood, 3 Redf. 465; Matter of Barefield, 36 Misc. 745; 74 N. Y. Supp. 472. So, too, a person inter- ested in the estate as a widow or next of kin, who has presented to the ap- praisers an article, under the belief that it was a part of the property of the decedent, is not necessarily es- topped by the appraisal ; but may sub- sequently, on being advised of his own title thereto, interpose his claim. (Sanford v. Sanford, 5 Lans. 486; 61 Barb. 293.) Compare Van Slooten v. Wheeler, 140 N. Y. 624. See Matter of Myers, 36 App. Div. 625; 55 N. Y. Supp. 168. For a case where the rep- resentative deposited her own moneys in the testator's bank account and it was sought to add them to the inven- tory, see Matter of Shipman, 82 Hun, 108. 26 Matter of Mitchell, 61 Hun, 372 ; 16 N. Y. Supp. 180. See Shuttleworth V. Winter, 55 N. Y. 624, 631. "The surrogate has power to compel an ex- ecutor to account for proceeds result- ing from the exercise of a discretion- ary power to sell real estate. (Matter of Cutting, N. Y. Daily Reg., Nov. 18, 1885.) A general devise to executors to sell and distribute, in a specified way, the proceeds of real estate, does not convert it into personalty, so as to make them accountable for such as has not been sold, as personalty upon their final accounting, and, if a sale is not made within a proper time, the remedy is by application to the court to compel it. (Matter of Hunter, ,3 Redf. 175.) As to powers of personal representatives with respect to real estate and their accountability for 813 AccouifTiNGs. §§ 988, 989. The representative is not chargeable with the value of chattels, in the use of which the testator has given a life estate to one per- son, with remainder over to others. The remedy of the remain- dermen is not against the representative, but, in case of danger to the chattels, to require the life tenant to give security.^'' Hav- ing already treated, as fully as was thought to be necessary, of the quantity of the estate, and what assets executors and admin- istrators are accountable for, it will be unnecessary to pursue the subject any further here.^* AETICLE SIXTH. COMPENSATION OF EXECUTOES, ADMINISTEATOES, AND TESTA- MENTARY TEUSTEES. § 988. Eate of compensation of executors and administrators. — The statute provides that, " on the settlement of the account of an executor or administrator, the surrogate must allow to him for his services, and if there be more than one, apportion among them, according to the services rendered by them respectively, over and above his or their expenses, at the following rates: " For receiving and paying out all sums of money not exceed- ing one thousand dollars at the rate of five per centum. " For receiving and paying out any additional sums, not amount- ing to more than ten thousand dollars, at the rate of two and one-half per centum. " For all sums above eleven thousand dollars, at the rate of one per centum." ^^ § 989. Allowance for expenses. — In addition to the allowance by way of compensation for their personal services, the represen- tatives must be allowed for their " necessary expenses actually rents and profits, see ante, §§ 530, ried into the Code, and being consoli- 532. dated with the former sections 2736, 27 Matter of Place, 1 Redf. 276. See 2737, and 2738 (now repealed), con- § 749, ante. Under a will which gave stitute section 2730. The second para- to trustees a farm and farming uten- graph of the original statute (before sils and live stock for the use of tes- the amendment of 1893, on bringing tator's son, — Held, that the trustees it into the Code) allowed 2% per were not chargeable to the remainder- cent. " for receiving and paying out man for the personal property because any sums exceeding $1,000, and not they gave it into the custody of the amounting to $10,000," that is, on son. (Matter of Washbon, 38 St. Rep. $9,000; and 1 per cent, on all sums C]9: 14 N. y. Supp. 672.) above $10,000; whereas now the rate 2S Ree § 528 et seq., ante. is increased by $25 on all sums of 2aBy L. 1893, c. 686, the foregoing $11,000 or under. As to compensation provision of the Revised Statutes (2 of temporary administrators, see § 423, R. S. 93, § 58, as amended L. 1863, ante. c. 362, § 8; L. 1880, c. 245) was car- §§ 990, 991. Accountings. 814 paid by them." ^" The reader is referred to previous pages, where the subject of expenses of administration is fully dealt with'.^^ Expenses of accounting are mentioned later on. § 990. Compensation of testamentary trustecB. — Notwithstanding the repeal of the statute, ^^ which gave the same commissions to testamentary trustees as to executors, etc., it was held that trus- tees were within the equity of the statute, and the surrogate had power to grant them such commissions as are incident to his general power to settle their accounts, and the power was uni- formly assumed.^* The statute now provides, however, that in all " annual accountings " of trustees created by will or appointed by any competent authority to execute a trust created by will, the surrogate " shall allow to the trustee or trustees the same com- pensation for his or their services, by way of commission, as are allowed by law to executors and administrators, besides their just and reasonable expenses therein." ^* § 991. Ground of the right to compensation The statute gives the commissions as matter of right, and the surrogate has no power to withhold them, or to state a balance excluding them,^^ providing the representative has properly administered the es- tate.^® The doctrine of the common law, on the contrary, is that an executor or administrator, like any other trustee, is not entitled to commissions, nor to any compensation for his services in the execution of his trust; the reason of this refusal to award a compensation, without statute authority, being, that the accept- ance of a trust must be deemed voluntary and confidential, and a just indemnity is all that can be expected or required.^'' The 30 Co. Civ. Proc, § 2730, as amended 35 Halsey v. Van Amringe, 6 Paige, 1895. 12; Dakiu v. Demming, id. 95; Matter 31 See § 552 et seq., ante. of Curtiss, 9 App. Div. 285. Compare 32 L. 1866, c. 155. Seeor v. Sentls, 5 Eedf. 570. The com- 33 Hurlburt v. Durant, 88 N. Y. missions, of an insolvent executor, who 121; Johnson v. Lawrence, 95 id. 154; is indebted to the estate, must be ap- Laytin v. Davidson, id. 263 ; Meeker plied, on the settlement of his account, v. Crawford, 5 Eedf. 450; Matter of to the liquidation of his indebtedness Roosevelt, id. 601; Hall v. Campbell, to the decedent. (Freeman v. Free- 1 Dem. 415; Slosson v. Naylor, 2 id. man, 4 Redf. 211.) 257; 4 Civ. Proc. Rep. 280. 36 See Wheelwright v. Rhoades, 28 34 Co. Civ. Proc, § 2802, as amended Hun, 57; 11 Abb. N. C. 382; Welling 1885. The commissions of testamen- v. Welling, 3 Dem. 511, and cases tary trustees are governed by the law infra. in force at the time of the settlement 37 In an early case. Chancellor Kent, of their accounts, although the ser- in refusing a trustee's request to be vices may have been performed prior allowed commissions, said that it could to the enactment of such law. (Nay- not have a very favorable influence on lor V. Gale, 73 Hun, 53; 25 N. Y. the prudence and diligence of a trus- Supp. 934.) tee, were the court to promote, by the 815 Accountings. §992. statute now allows a specific compensation; but as to all beyond that, the courts still adhere to this statutory principle, and the executor or administrator cannot, even by rendering service be- yond his duty as trustee, entitle himself to additional compensa- tion, however necessary the service and reasonable his pfice.^* § 992. Statute allowance exclusive.— The statute allowance, if claimed, is exclusive of a specific compensation in the will; and it a testator has provided for such compensation, an election be- tween that and the statute allowance is necessary. The Code declares that where the will provides a specific compensation to an executor, administrator, or trustee, he is not entitled to any allowance for his services, unless, by a written instrument filed with the surrogate, he renounces the specific compensation.^' The subjects of legacies given in lieu of commissions is con- hopes of reward, a competition, or even a desire, for the possession of pri- vate trusts that relate to the moneyed concerns of the helpless and infirm. (Manning v. Manning, 1 Johns. Ch. 527.) 38 Myers v. Bolton, 157 N. Y. 393; 28 Civ. Proc. Rep. 397; Matter of Howard, 3 Misc. 170; 24 N. Y. Supp. 836. See § 557 et seq., ante. As to the transferable nature of the right to commissions, see De Peyster v. Fer- rers, 11 Paige, 13; Gray v. Murray, 3 Johns. Ch. 167; Worrall v. Drigg.s, 1 Eedf. 449; Matter of Worthington, 141 N. Y. 9; 56 St. Rep. 561. A de- cree of a surrogate will not be reversed because it allows a gross sum to the administrator for his services, if it appear that it does not exceed the amount of his statutory fees. (Green V. Sanders, 18 Hun, 308.) For pro- ceedings in an action to recover from executors commissions allowed by a decree of the surrogate, which was afterward reversed, see Seholey v. Hal- sey, 72 N. Y. 578. 39 Co. Civ. Proc, § 2730, as amended 1893; consolidating former § 2737. Compare Russell v. Hilton, 37 Misc. 642; 76 N. Y. Supp. 233. Section 2811, making former section 2737 (now repealed) apply to testamen- tary trustees, will doubtless be held to make present section 2730 applicable to them. Though the statute fixes no time for the election, the executors are bound, if they desire to renounce the latter, to do so as soon as they ascertain which rate would be more advantageous, and they may lose their opportunity by laches. (Arthur v. Nelson, 1 Dem. 337.) In Matter of Weeks (5 Dem. 194), it was held, that the time within which an executor may renounce his legacy is not limited by law. So long as he has not indi- cated his election between such provi- sion and the statutory commissions, either by taking to himself one or the other, or by some other mode, his right to file a renunciation, and to avail himself of its benefits, remains vmimpaired. To the same effecu. Mat- ter cf Arkenburgh, 38 App. Div. 473; 56 N. y. Supp. 523 ; distinguishing Arthur v. Nelson, supra. Where an executor has renounced the right to specified compensation, the surrogate is not authorized to permit him to re- tract the same without the consent of the parties in interest. (lb.) In Matter of Tilden (5 Dem. 230; 44 Hun, 441; 98 N. Y. Supp. 434), the will provided for compensation to be received by the executors, which it di- rected to be paid to them from time to time in proportion to their services. Held, that a decree settling their ac- counts was not an adjudication that the sum therein charged as commis- sions was all the compensation to which the executors were then enti- tled, and that such decree did not pre- vent a subsequent allowance as com- missions of any sum in addition to the sums there allowed which the execu- tors could show themselves entitled to upon a subsequent accounting. See Smith V. Lansing, 24 Misc. 566, §§ 993, 994. Accountings. 816 sidered elsewhere.*" When the provision made by the will fails, the court cannot, in construing the will, award the executor a compensation in money, in lieu thereof, on the theory that it may award a pecuniary equivalent.*-' But since a testator may give what compensation he pleases (except as against creditors), he may expressly give compensation in addition to the statute allow- ance, and in such case the court will award payment of both, if the services are actually performed.*^ On the other hand, the will may limit the compensation for particular services rendered. Thus a direction in a will, that one of three executors should " receive a commission of six per cent, upon all moneys collected by him," does not entitle him to the commission on the entire pro- ceeds of the estate, or upon all sums received hy him, but only on collections, giving the word its ordinary meaning.*^ § 993. Compensation regardless of statute — It is a general rule, that where the instrument creating a trust provides that the trustee shall have " a reasonable compensation " for his services, he is not confined to the statutory allowances to executors, etc.; but his compensation is to be adjusted at what shall be deter- mined, upon judicial investigation, to be reasonable under the circumstances, without regard to the statute.** It is perfectly competent for the parties interested to agree with the represen- tative for the allowance to him in addition to his statutory com- missions, and such an agreement, if just and fair, will be en- forced.*^ § 994. Estoppel from claiming commissions. — The allowance of commissions is not mandatory or compulsory, but is to be ad- 4a See § 746, ante. debts owing to me, or, for the income 41 Downing v. Marshall, 1 Abb. Ct. of other funds or investments, five per App. Dec. 525. See Bigelow v. Tilden, cent, of the amount received;" — Held, 52 App. Div. 390. to include the principal of government 42 Clinch V. Eckford, 8 Paige, 411; bonds held by testator at the time of but not where the representative has his death, and paid by the government neglected and mismanaged the estate, to such executors. (Matter of Tilden, (Widmayer v. Widmayer, 76 Hun, 44 Hun, 441; 5 Dem. 230.) 251; 27 St. Eep. 773.) A testator 4* Matter of Sehell, 53 N. Y. 263. may likewise authorize his executors See Cram v. Cram, 2 Redf. 246. to agree with one of their own number 45 Matter of McCord, 2 App. Div. for a special compensation to be made 324; 37 N. Y. Supp. 852; Matter of to him for special services. (Clinch Braunsdorf, 13 Misc. 666; 35 N. Y. V. Eckford, supra.) And see § 557, Supp. 298; affd., 2 App. Div. 73; Mat- ante. ter of Young, 17 Misc. 680; suh nom. 43 Ireland v. Corse, 67 N. Y. 343. Matter of Cornell, 41 N. Y. Supp. 539: A will provided that the executors affd., 15 App. Div. 285; Matter of should receive for their services " on Turfler, 24 N. Y. Supp. 91. See Mat- all sums received for personal prop- ter of Hodgman, 69 Hun, 484; affd., erty sold, or rents, or the collection of 140 N. Y. 421. 817 Accountings. § 995. judged by the surrogate. A party may be estopped from claim- ing them by an agreement, express or implied/* or by the terms of the will, in the case of executors.*^ The fact that the execu- tor was given the whole income for life will not bar his right to commissions upon sums received and paid for the benefit of the general estate.*^ § 995. Forfeiture of commissions. — Executors and administra- tors who have resigned their trusts, before the complete execu- tion of the duties imposed upon them, are not entitled to com- pensation to be charged upon the corpus of the estate.*® Although one of several executors has not resigned, yet where he declined to unite in the inventory, and performed none of the duties as executor, he may be refused commissions.^" Trustees do not necessarily lose their right to commissions by improper invest- ment of the trust funds, for which payment of interest has been imposed upon them, where the estate has suffered no loss.^^ But *e Matter of Hopkins, 32 Hun, 618; given to the wife; — Held, that it was Matter of Cooper, 93 N. Y. 507. See testator's intention to exclude his wife Matter of Aljen, 96 id. 327 ; Matter of from compensation. Where an execu- Hodgman, supra. Where the trustees tor is denied compensation in the will, annually rendei-ed accounts, and paid the surrogate cannot allow him com- over the whole net income to the bene- missions on the ground that, by the ficiaries, without making any claim nonaction of a co-executor, his labors for commissions, they waived their have been more onerous than testa- right thereto, the income being the tor anticipated. (Matter of Gerard, sole fund from which the commissions 1 Dem. 244.) The testator, by his were payable, and they cannot charge will, granted to one of two executors, past commissions upon the income of and to the wife of the other, one-half future years. ( Spencer v. Spencer, 38 of the residuum, and declared that the App. Div. 403; 56 N. Y. Supp. 460.) executors should receive no compensa- To the same effect. Matter of Bevier, tion or fees for their services in set- 17 Misc. 486; 41 N. Y. Supp. 268; tling the estate. On their final ac- Matter of Harper, 27 Misc. 471; 59 counting, the executors asked for fees ; N. Y. Supp. 373; Matter of Haight, — Held, not allowable. (Secor v. 51 App. Div. 310; 64 N. Y. Supp. Sentis, 5 Eedf. 570; explaining Halsey 1029 ; Matter of Slocum, 60 App. Div. v. Van Amringe, 6 Paige, 12 ; Dakin 438; 69 N. Y. Supp. 1036; modified v. Demming, id. 95.) on another point, 169 N. Y. 153 ; Mat- « Betts v. Betts, 4 Abb. N. C. 324. ter of Tucker, 29 Misc. 728; 62 N. Y. 49 Matter of Hayden, 54 Hun, 197; Supp. 1021. affd., 125 N. Y. 776; Matter of Allen, «In Matter of Kernoehan (104 N. 96 id. 327; Matter of Baker, 35 Y. 618), testator's will provided: "It id. 272; Matter of Jones, 4 Sandf. is also my request that all persons Ch. 615. Compare Matter of Doug- herein named as executors and trus- las, 60 App. Div. 64; 69 N. Y. Supp. tees, and that each executor and trus- 687. tee, other than my wife, do also re- 50 Eager v. Roberts, 2 Eedf. 247; ceive and take the full rate of com- Walke v. Hitchcock, 5 id. 217; Matter missions provided by law for each of Pike, 2 id. 255. But see Matter of executor, intending this to provide Dunkel, 5 Dem. 188, and § 487, ante. suitable compensation for their ser- 51 Morgan v. Morgan, 4 Dem. 353 ; vices in and attention to the duties Gillespie v. Brooks, 2 Eedf. 349 ; Mat- herein devolved upon them." Substan- ter of Baker, 72 App. Div. 211. See tially the whole income of the estate Wheelwright v. Ehoades, 28 Hun, 57. in the hands of the executors was 52 §996. Accountings. 818 where the accounting party is shown to have grossly misman- aged the trust, in effect converting a part of the estate to his own use, keeping no proper accounts, and subjecting the parties inter- ested to great difficulty and expense in attempting to unravel them, the court may properly disallow commissions.^^ § 996. Double commissioiis as executor and as trustee. Some embarrassment has been met with in deciding the question whether one who is both executor and trustee is entitled to com- missions in each character, i. e., to double commissions. Many authorities may be cited against giving an executor double com- missions on the same fund, where he is merely required by the will to invest and hold it in trust and apply the income, until such time as, by the terms of the will, the principal is payable.^^ If it does not appear, from the language of the will, that the tes- tator contemplated a trust that would attach to the person of the executor, or intended the execution of it in the character of a trustee rather than an executor, a payment out of the general fund, held in trust, is a payment by him as executor and not as trustee; and having been allowed full commissions as executor, he is not entitled to additional commissions as trustee.^* That 52 Cook V. Lowry, 95 N. Y. 103; Matter of Harnett, 15 St. Eep. 725; Matter of Conklin, 2 Connoly, 176; 20 N. Y. Supp. 59 ; Stevens v. Melcher, 152 N. Y. 551; Matter of Wotton, 59 App. Div. 584; 69 N. Y. Supp. 753 (167 N. Y. 629) ; Matter of Matthew- son, 8 App. Div. 8; 40 N. Y. Supp. 140; Matter of Welling, 51 App. Div. 355; 64 N. Y. Supp. 1025; Matter of Soudder, 21 Misc. 179; 47 N. Y. Supp. 101; White v. Rankin, 18 App. Div. 293; 46 N. Y. Supp. 228; affd., 162 N. Y. 622. See Matter of Rut- ledge, id. 31; 30 Civ. Proc. Rep. 405. An executor who pays the whole of the assets to a, legatee for life, with- out taking security to protect the in- terest of the remaindermen, can only have commissions (and any demand established by him against the estate ) , to be paid out of such assets as re- main in his hands, or may be thereaf- ter received. (Lang v. Howell, 20 Abb. N. C. 117.) WTiere an executor had wrongfully withheld a bond and mortgage, he was not allowed com- missions upon it. (McMahon v. Al- len. 4 E. D. Smith, 519.) 53 Valentine v. Valentine, 2 Barb. Ch. 430; Drake v. Price, 7 Barb. 388; affd., 5 N. Y. 430; Westerfield v. Wes- terfield, 1 Bradf. 198; Mann v. Law- rence, 3 id. 424; Lansing v. Lansing, 45 id. 182; Betts v. Betts, 4 Abb. N. C. 437; Meeker v. Crawford, 5 Redf. 450; Johnson v. Lawrence, 95 N. Y. 154; Matter of Woolsey, 29 Hun, 626; Matter of Leinkauf, 4 Dem. 1 ; Matter of Starr, 2 id. 141 ; Matter of Sloeum, 169 N. Y. 153. 54 Hall v. Hall, 78 N. Y. 535. In that case, the will devised real estate, subject to a power of sale given to the executors; the residuary estate was given to the executors and trustees, " the survivors and survivor of them and the successors and successor of them in trust," to convert into money, invest and hold for the purposes of certain trusts specified. The execu- tors exercised the power of sale as to the real estate, and invested and held the proceeds. On an accounting, they were allowed full commissions as ex- ecutors. In subsequent proceedings for a final accounting as executors, a decree was made, directing them to pay over to one of the legatees her share of the estate; there had been no separation of this share from the general fund in the hands of the ex- 819 Accountings. §997. is, where the functions or duties of executor and of trustees are not separable, but are blended, double commissions are not allowable.^^ § 997. Same ; when allowed. — But where the will contemplates a time when the duties of the executors, as such, shall cease, after which they shall assume the character exclusively of trustees, an allowance to them as executors, on their accounting as such, does not prevent a like allowance to them on a subsequent account- ing as trustees. In order to entitle them to such double com- missions, it is not necessary, as was at one time held, that the separation of the two functions of executor and trustee shall have been actually effected, either voluntarily by the executor in the actual division of the trust estate into several distinct trusts,^® or that the separation shall have been ordered by the eeutors. Held, that the executors were properly allowed eommissions only on the amount of income collected since the last accounting; that they were entitled to full commissions as trus- tees on the amount paid such legatee; and, as the payment was not of a sep- arate fund in the hands of the execu- tors, there was no such Holding. In this same estate, subsequently to this decision the trustees separated each trust fund from the general fund, and kept them separately invested. Upon paying the principal of one of such trust funds, and on an accounting as to that fund, full commissions, as trustees, were allowed. (Hall v. Campbell, 1 Dem. 415.) To the same eflfect are Matter of Carman, 3 Redf. 46 ; Ward v. Ford, 4 id. 34. The em- ployment of no other than merely ex- ecutorial functions being required by the will, the wording of a decree that the executor do retain a certain sum " as trustee " does not change the character of the executor into that of a trustee so as to entitle him to dou- ble commissions. (McKie v. Clark, 3 Dem. 380.) In Matter of Townsend (5 Dem. 147), testator gave the resi- due of his real and personal property to his executors, in trust to sell the former, and divide the proceeds of the entire residue into thirty-two equal parts, whereof he directed the execu- tors to invest in their names as trus- tees, five for the benefit of his daugh- ter M., eight for that of his daughter B., and nineteen for that of his daugh- ter C, during their respective natural lives, and, at the death of each of his said daughters, to pay the principal invested for her benefit to her de- scendants. He appointed C. and two others " executors of this my will, and trustees of the several trusts herein- before created," and provided, in ease " any of said trustees " should die or become disqualified, for the appoint- ment of a successor. Held, that the executors were not entitled to double commissions. 55 Johnson v. Lawrence, 95 N. Y. 154; Matter of Babcock, 52 Hun, 510; Matter of McAlpine, 15 St. Rep. 532; 113 N. Y. 658; McAlpine v. Potter, 126 id. 285; Matter of -Hogarty, 62 App. Div. 79; 70 N. Y Supp. 839; Matter of Clinton, 12 App. Div. 132; 42 N. Y. Supp. 674; Matter of Slo- cum, 169 N. Y. 153. Where the peti- tion, on an accounting, alleges that there has been no accounting by the executor and trustee, and the will it- self is not before the court, it cannot assume that the functions of exeoitor and trustee co-exist and are insepara- bly blended. (Matter of Hammond, 92 Hun, 478; 36 N. Y. Supp. 1074.) 59 Laytin v. Davidson, 95 N. Y. 263. In that case, the executors had a final accounting; the amount of the residu- ary estate was adjudged, and the de- cree directed the executors to retain and hold the same " as trustees " un- der the will. Subsequently, upon the death of one of the cestuis que trust, the trustees, on a judicial settlement of their accounts, claimed one-half commissions on the whole capital of the trust fund, and, in addition, one- half on the share of the deceased cestuis que trust directed to be dis- tributed. Held, that they were enti- tled to commissions as claimed, and the fact that they had not made an. §997. Accountings. 820 decree of the court, ^o doubt a separation by order or decree of the surrogate would be the most satisfactory evidence of the real relation of the party to the fund, but the statute recognizes the existence of the office of executor and of testamentary trus- tee in the same person, and provides for compensation of each under certain circumstances.®^ It is not necessary, therefore, that the decree upon the settlement of their accounts as execu- tors should, in terms, discharge them as such.®* It is sufficient that their functions as executors have been, in effect, terminated by the decree, and that they have assumed the duties of trustees. Thus, where, upon the settlement of the accounts of executors, the decree directed them to pay to themselves, as trustees, the several trust funds, under the will, which was done, they thence- forth assume the duties of trustees.®^ actual division of the trust fund into shares, as directed, did not change the question. To the same effect, Matter of Crawford, 113 N. Y. 560; Foote v. Bruggerhof, 66 Hun, 406; 21 N. Y. Supp. 509; Blake v. Blake, 30 Hun, 471. See Matter of Martens, 16 Misc. 245; 39- N. Y. Supp. 189; Matter of Beard, 77 Hun, 111; 28 N. Y. Supp. 305; Matter of Curtiss, 9 App. Div. 285 ; Matter of Gilbert, 25 Misc. 584 ; 56 N. Y. Supp. 149 ; Matter of Tucker, 29 Misc. 728; 62 N. Y. Supp. 1021; Matter of Union Trust Co., 70 App. Div. 5; 75 N. Y. Supp. 68. Where it -was for the mutual benefit of the beneficiaries that the trust estate should not be presently divided as di- rected by the will, and each got his proper income, the executors' failure to make a division does not affect their right to commissions as trus- tees. (Matter of Johnson, 57 App. Div. 494; 67 N. Y. Supp. 1004; modi- fied on another point, 170 N. Y. 139.) In Clute V. Gould (28 Hun, 348), tes- tator, after the payment of debts and certain specific legacies, bequeathed $30,000 to his executor in trust, to invest and collect the interest and in- come thereof, and pay over the same to testator's widow so long as she re- mained unmarried ; then to divide the residue of his estate into five equal parts. One of said parts he sepa- rately bequeathed to his executor to be held in trust for one of testator's five children. He appointed one Sav- age guardian and trustee of his chil- dren, and executor of his will. Savage was removed for misconduct, and plaintiff was appointed trustee, and subsequently he was appointed admin- istrator with the will annexed. Upon an accounting by plaintiff, — Held, that he was entitled to commissions as trustee upon each of the six dis- tinct trusts held by him, even though there had been no actual division of the estate into separate funds. See also s. c, 24 Hun, 307. Where the trust estates were actually severed from the general assets, and thereafter separate accounts were kept with each beneficiary, there is no doubt as to the trustee's right to receive double com- missions. (Phoenix v. Livingston, 101 N. Y. 451; 28 Hun, 629.) Compare Roosevelt v. Van Alen, 31 App. Div. 1; 52 N. Y. Supp. 304. But where the life beneficiary died before the payment over by the executors of the trust fund to themselves as trustees, they were not entitled to commissions on the principal as trustees. (Mat- ter of Irwin, 29 Misc. 266; Matter of Lawrence, 37 id. 702.) BTHurlburt v. Durant, 88 N. Y. 121; Johnson v. Lawrence, 95 id. 154; Matter of Mason, 98 id. 527. But where there has been no accounting as executor, nor separation of his func- tions, he is not entitled to trustee's commissions. (Matter of Reed, 45 App. Div. 196; 61 N. Y. Supp. 50.) 58 Laytin v. Davidson, 95 N. Y. 263. Compare Matter of Sloeum, 169 N. Y. 153. 59 Matter of Willets, 112 N. Y. 289; Matter of Crawford, 113 id. 560; Wil- dey v. Robinson, 85 Hun, 362; 32 N. y. Supp. 1018. In Matter of 'Carman (3 Redf. 46), testator devised all the residue of his property to his execu- tors in trust (with power of sale) to divide it into three equal shares, and 821 Accountings. §§ 998, 999. One-half commissions. — Executors, administrators, and trustees are entitled to one-half of their commissions for the re- ceipt of the funds and the other half for paying out the same."" A trustee, as such, is entitled to one-half commissions for re- ceiving trust funds from himself as executor, although the corpus remains in his hands,®^ and the other half on the termination of the trust, when he pays the principal to the beneficiary. Thus, where one of several trusts has terminated, the executor is en- titled to full commissions as trustee upon the principal released for distribution, and half commissions on the residue still held in trust."^ In case an account is presented for settlement before completion of the performance of the executorial duties, only half commissions can be allowed upon proceeds of sale in hand, the other half being awardable when those duties, with respect to the fund, are terminated, and the accounting parties enter upon the discharge of their functions as trustees.®' Where one of two executors qualifies and receives full commissions and then dies, and thereafter the other nominee receives letters, he is entitled to full commissions on moneys received and paid out, and half commissions on moneys received and held.^* § 999. Full compensation to each of several. — " If the value of the personal property of the decedent amounts to one hundred thousand dollars, or more, over all his debts, each executor, or administrator, is entitled to the full compensation on principal pay over the rents and profits of olie is not entitled to commissions for share to A. for his life. The executors, merely receiving its moneys nor un- on a final accounting, on which they less she has also paid them out. ( Mat- were allowed full commissions, were ter of Bidgood, 36 Misc. 516; 73 N. Y. ordered to set apart and keep in- Supp. 1061.) vested, for the benefit of A., a fixed 61 Matter of Willets, 112 N. Y. 289. sum (being one- third of the residue). The decision in this case was explained The executors set apart such sum, and in McAlpine v. Potter ( 126 N. Y'. kept a separate account of it, and paid 285 ) , where it was held that no law over the rents and profits to A. during justifies the allowance of one-half his life, and on his death accounted as commissions upon the estimated value testamentary trustees before the surro- of securities, in advance of their con- gate. Held, that they were entitled to version into money or its equivalent, the full commissions, as though they " Until the securities become sums of liad never accounted as executors. money, either by conversion into cash, «o Matter of Eoosevelt, 5 Redf . 601 ; or by their acceptance as cash by Morgan's Estate, 15 Abb. N. C. 198; those entitled, the allowance is prema- s. c. as Rowland v. Morgan, 3 Dem. ture." Compare Matter of Garth, 10 289; Lyendecker v. Eisemann, 3 id. App. Div. 100; 41 N. Y. Supp. 1022. 72 ; Frame v. Willets, 4 id. 368. The 62 Matter of Morris, 10 St. Eep. 701. mere transfer of the fund to aiiother 63 Matter of Leinkauf , 4 Dem. 1 ; trustee is not a "paying out." (Mat- Matter of Douglas, 60 App. Div. 64- t-er of Todd, 64 App. Div. 435 ; 72 N. 69 N. Y. Supp. 687. Y. Supp. 277.) An executrix who did 64 Matter of Depew, 6 Dem. 54. not close up the estate of her testator § 999. Accountings. 822 and income allowed' herein to a sole executor or administrator, unless there are more than three; in which case, the compensa- tion, to which three would be entitled, must be apportioned among them according to the services rendered by them respec- tively, and a like apportionment shall be made in all cases where there shall be more than one executor or administrator." ^ The intention of the statute, even before the amendment, was assumed to be that the value of the estate, for the purpose of computing commissions, was to be determined, not as of the date of dece- dent's death, but at the close of the administration, that is, on the final accounting, and, consequently, that the increase of the es- tate, pending administration, was to be included in the valua- tion.®* Trustees are entitled, without doubt, to commissions on the income of funds invested by them;®'' they are not limited to the principal fund. If the annual income or annuities exceed $100,000, double or triple commissions are awardable; but where the accounting is of income only, the fact that the principal ex- ceeds that sum is no ground for allowing double commissions on its income which is less than that amount.®^ So, too, where the 65 Co. Civ. Proc, § 2730, as amended 1893; consolidating former § 2736, as amended 1892. The words in italics "Were inserted by the amendment of 1892, and supersede the ruling that, in determining whether the value of the personal estate amounts to $100- 000, reference must be had to the es- tate as it existed at the time of dece- dent's death, and not at the time of the accounting, and, consequently, that accumulations of income could liot be added to the principal, so as to make up the sum of $100,000. (Slos- son V. Taylor, 2 Dem. 257 ; 4 Civ. Proc. Rep. 280; Waters v. Faber, 2 Dem. 290.) The rents and profits of the estate result, it was said, from its management and use by the trustees, and did not constitute a part of the property left by the decedent, on which the commissions were comput- able. (Savage v. Sherman, 24 Hun, 307.) 66 In Matter of Blakeney (1 Con- noly, 128; 23 Abb. N. C. 32), the in- ventory value of the assets was $96,000. By the executors' accounts, on their accounting, the assets were then of the value of $101,000. Held, that each executor was entitled to full commis- sions. This was sustained in principle by the decision in Matter of Hayden (54 Hun, 197; affd., 125 N. Y. 776), that the section had no application to a case where the trust had not been fully executed, the executors having resigned. On an examina- tion of the authorities, Mr. Abbott, in a note to the Blakeney case (23 Abb. N. C. 38 ) , states the rule thus : "Although executors, as such, may not be entitled to charge commissions on the value of real estate of which they have charge, all the property of the estate which comes into their hands in money, and is paid out by them, as well as all personalty upon the in- ventory, is to be regarded, when pre- sented upon the accounting, as the basis for determining whether several executors are entitled to full commis- sions." In Matter of Leggatt (4 Redf. 148), the personal assets did not amount to $100,000, but the rents of real estate collected and paid out amounted to more than that sum, and the accounting included the rents, with the concurrence of all the parties, Held, the executors were entitled to three several commissions. OT Matter of Mason, 98 N. Y. 527, and cases infra. 68 Matter of Willets, 112 N. Y. 289; explained and applied in Matter of McAlpine, 126 N. Y. 285 ; 37 St. Rep. 6. 823 Accountings. § 1000. trusts are separated, the basis for computing commissions is the "value of each trust separately considered; hence, although the entire estate exceeds $100,000, full commissions cannot be al- lowed, if the assets belonging exclusively to each trust do not equal that amount.®^ In ascertaining whether the " personal estate," after deducting debts, exceeds $100,000, the proceeds of real estate, equitably converted by the will, are to be regarded as personal estate for this purpose;™ and the same may be said of land bought in by. the executors upon foreclosure of a mort- gage belonging to the estate. '^^ It will be noted that the value of the estate of the decedent must be $100,000 or more, " over all his debts." Where, therefore, the purchase price of lands, sold by the executor, included the amount of a mortgage incum- brance upon the land, the mortgage was to be regarded as a debt of the decedent, and the equity of redemption only should be taken account of .''^ While the subject of a specific bequest — e. g., shares of stock — does not form a basis for charging the statutory commissions, it is nevertheless held that its value is to be taken into consideration, in ascertaining whether the estate amounts to $100,000, entitling each executor to full commissions.^* § 1000. Compensation on different letters. — " Where successive or different letters are issued to the same person, on the estate of the same decedent, including a case where letters testamentary or letters of general administration are issued to a person who has been previously appointed a temporary administrator, he is en- titled to compensation, in one capacity only, at his election; ex- cept that where he has received compensation in one capacity, he is entitled to the excess, if any, of the compensation allowed by law, above the sum which he has already received in the other capacity." ''* It will be observed that this provision applies only to a case where two sets of " letters are issued," and, therefore, would not extend to an executor, acting also as testamentary trus- tee, not having received letters in the latter capacity. 69 Matter of Johnson, 170 N. Y. 139. Sehermerhorn, 18 Hun, 16. Funeral TO Smith V. Buchanan, 5 Dem. 169; expenses and expenses of administra- Matter of McLaren, 6 Misc. 483; 27 tion are not debts in reckoning the N. Y. Supp. 289. Compare Savage v. amount of the assets. (Matter of Sherman, 24 Hun, 307. Franklin, supra.) 71 Matter of Franklin, 26 Misc. 107 ; 73 Matter of Jones, N. Y. Law J., fi6 N. Y. Supp. 858. See Matter of May 11, 1893. Hoss, 33 Misc. 163 ; 68 N. Y. Supp. 74 Co. Civ. Proc, § 2730, as amended 373. 1893; consolidating former § 2738. 72 Matter of St. John, N. Y. Daily See § 423, ante. Beg., Julie 10, 1884. Compare Cox v. § 1001. Accountings. 824 § 1001. Commissions on trust income. — Where the subject of the accounting is the principal fund, and the income, the income is to be regarded as an addition to the principal, and the commissions are to be computed upon the sum of the two, that is, the aggre- gate of capital and income as received once and paid out once.^® Where the accounting is of the income only, commissions are chargeable at the same rate as are allowed on the principal of the estate.^® The income which the trustee is required by the will to receive and distribute among beneficiaries, constitutes an alto- gether new fund, on which commissions will be separately allowed. The novelty of the fund is the controlling fact." As a general rule, the amount of commissions on the income is a charge, not upon the principal of the estate, but upon the interest of the bene- ficiary;^* that is, a trustee holding a fund under a trust to pay the net income annually to a beneficiary, may, on paying over the income, deduct and retain full commissions each year from the income received ; and in such a case there is no occasion for an annual judicial settlement of his account.™ A different rule might apply where the trustee is required to accumulate the income, or if he allowed it to accumulate in his hands for several years, and then accounted and paid over a gross sum to the beneficiary.^" An exception to the general rule also arises where the intention of the testator was that the commissions should be paid as an ad- ministrative expense.^^ The right, however, of a trustee to make periodical rests in his accounts, and at such times, even without 75 Betts V. Betts, 4 Abb. N. C. 324. Bradf . 269 ; Booth v. Ammermann, 4 See Slosson v. Naylor, 2 Dem. 257. id. 129; Lansing v. Lansing, 45 Barb. 76 Matter of Mason, 98 N. Y. 527. 182; Drake v. Price, 5 N. Y. 430; 77 Matter of Meserole, 36 Hun, 298. Whitson v. Whitson, 53 id. 481. See Morgan v. Hannas, 13 Abb. Pr. 79 Matter of Mason, '98 N. Y. 527. (N. S.) 361; Fisher v. Fisher, 1 But the fact that the income was re- Bradf. 335; Brush v. Smith, 1 Dem. ceived and distributed monthly does 477; Matter of Pirnie, 1 Tuck. 119; not warrant a charge of full commis- Betts V. Betts, 4 Abb. N. C. 324; sions monthly. (Matter of Selleck, 111 Frame v. Willets, 4 Dem. 368 ; over- N. Y. 284. ) Where a trust is created ruling Andrews v. Goodrich, 3 id. 245. solely for the support of the cestui See also Matter of Johnson, 170 N. Y. gue trust, with no disposition as to 139. Full commissions on annual rests the remainder, and the cestui que are not allowable merely tecause, trust dies before the final accounting without the order of court or require- of the executors, they are entitled as ment of statute, rests have been made trustees to commissions only upon the for the purpose of charging the trustee amount expended for such support, with interest. (Tucker v. McDermott, (Matter of Bennett, 16 Misc. 199; 38 2 Pedf. 321.) See Cram v. Cram, id. N. Y. Supp. 945; sub nom. Matter of 246 ; Ward v. Ford, 4 id. 34. Clinton, 74 St. Rep. 534 ; afifd., 12 78Cammann v. Cammann, 2 Dem. App. Div. 132.) 211; overruling Matter of Mount, 2 80 Matter of Mason, supra^ Redf. 405, and citing Stubbs v. Stubbs, 81 Reynolds v. Reynolds, 3 Dem. 82. 4 Redf. 171; Pinckney v. Pinckney, 1 825 Accountings. § 1002. presenting his accounts for settlement, to withhold his lawful com- missions, is not limited to cases where by statute, or by general rule, or special order of court, such periodical rests are required or permitted, but extends, also, to cases where, by the direction of his testator's will, or for the proper administration of his tes- tator's estate, he is required to, and does, make periodical pay- ments.*^ § 1002. Basis for computing commissions. — We remark, in the first place, that an award of statutory commissions is not regu- lated by the law as it existed at the time the services were ren- dered, but by the rule existing at the time of the award f^ and, in the next place, that sums of moneys received and paid out, are the basis of computation. The statute gives the commissions " for receiving and paying out all sums of money;" hence the proceeds of lands, whether by way of rents,** or by a sale under authority, passing through the hands of an executor or trustee, are to be considered in computing the commissions, but the value of real property, as such and unsold, is not to be taken into account.*^ 82Hancox v. Meeker, 95 N. Y. 528. 83 Matter of Harris, 4 Dem. 463. 84 As to rents of land occupied by life tenant, see Matter of Washbon, .38 St. Rep. 619. ssphosnix V. Livingston, 101 N. Y. 451. In that case, as the fee in the real estate vested at once in the re- mainderman, the trustees taking only an estate commensurate with their trust, which simply terminated, and was never transferred or paid over, — Held, therefore, their commissions must be computed upon the amount received and paid out, and not on the value of the real estate unsold at the termination of the trust. See Wagstaff V. Lowerre, 23 Barb. 209; Stevenson v. Lesley, 70 N. Y. 512; Matter of Baker, 35 Hun, 272; Sav- age V. Sherman, 24 id. 307; Matter of McLaren, 6 Misc. 483; 27 N. Y. Supp. 289; Matter of Bennett, 16 Misc. 199; 38 N. Y. Supp. 945; sub nom. Matter of Clinton, 74 St. Rep. 534; afi'd., 12 App. Div. 132; Mat- ter of Tucker, 29 Misc. 728; 62 N. Y. Supp. 1021. In Matter of Til- den (44 Hun, 441), it was held, that executors were not entitled to com- missions upon the value of real es- tate, the title to which was in tes- tator's son.s under the will, and which they partitioned among themselves, the executors uniting in the deed by reason of the will conferring upon them certain powers in reference thereto, but not the power of parti- tion or division. To the same effect. Matter of Ross, 33 Misc. 163; 68 N. Y. Supp. 373. So an administrator, though concurriiig in a, sale by a trustee appointed by the court to exe- cute a power in the will, is not en- titled to share the commissions for the sale. (Matter of Paton, 41 Hun, 497. j See Matter of McKay, 37 Misc. 590; 75 N. Y. Supp. 1069. Where an executor sells 'testator's real property under a power in the will, personally and not as an executor, he should not include the proceeds of sale in his offi- cial account, nor are the same charge- able with commissions. (Matter of Brown, 5 Dem. 223.) See McKee v. Weeden, 1 App. Div. 583; 37 N. Y. Supp. 465. Where, although the legal title to real estate and a power of sale are given to executors, it is evi- dent from the terms of the will, that the power was given to them only to be exercised for the purposes of a trust conferred upon them, and not to be exercised by them as executors (except for the payment of debts or legacies), commissions can be allowed to them thereon, only in their capacity as trustees, and where they apply for 1002. Accountings. 826 Where, however, property or securities are turned over to a party who accepts them as a payment of money, the commissions are earned.*® Assets other than money, which are specifically be- queathed, and which the executor delivers specifically to the lega- tee, are not the subject of commissions;*^ nor is any property, inventoried but not actually sold, though a sale will ultimately be necessary.** In computing the one-half commissions " for receiving," to which a representative, who qualified after moneys or securities had been received by his co-representative, is entitled, the securities are to be valued by the highest market quotations on the day he qualified.*® The amount of a debt due the representative, and leave to resign the trust, no commis- sions will be allowed to them as trus- tees, upon the proceeds of land sold under such a power. (Matter of Cur- tiss, 9 App. Div. 285.) 86 Matter of Mason, 98 N.. Y. 527; MeAlpine v. Potter, 126 id. 285; Cairns v. Chaubert, 9 Paige, 160; Matter of Kellogg, 7 id. 265 ; Foley v. Egan, 13 Abb. Pr. (N. S.) 362, note; Matter of Moflfat, 24 Hun, 325; Mat- ter of Ross, 33 Misc. 163; 68 N. Y. Supp. 373. In Smith v. Buchanan (5 Dem. 169) , the executors had sold part of testator's lands to his children, tak- ing from them receipts for the pur- chase price, which were applied upon their share in the estate of their father; — Held, in legal eflfeet, to be substantially a sale and conveyahce of the same, as if the payment had been made in cash, so that the exec- utors were entitled to have commis- sions computed on the amount of such purchase price. STSchenck v. Dart, 22 N. Y. 420; Hawley v. Singer, 3 Dem. 589'; Mat- ter of Robinson, 37 Misc. 336; 75 N. Y. Supp. 490. But see Matter of Haw- ley, 104 N. Y. 250; and same case on a rehearing before the surrogate, 5 Dem. 82. In Matter of Egan ( 7 Misc. 262; 27 N. Y. Supp. 1009), it was in- timated (erroneously, we think), that the statute awarding commissions did not apply to a temporary administra- tor, and hence that property specift- cally bequeathed should be considered in estimating his commissions. Com- missions are not to be computed upon specific legacies, although converted into money. (Parquharson v. Nugent, 6 Dem. 296.) In Hall v. Tryon (1 id. 296), testator left a personal es- tate including certain corporate bonds, which he bequeathed to his executors in trust, to collect and pay the in- come to certain life beneficiaries, at whose death the executors were di- rected to divide and deliver the said bonds and accrued income among and to certain persons named. The exec- utors were also given a discretionary power to sell any of the bonds. On an accounting, during the lifetime of the life beneficiaries, none of the bonds having been sold, the executors asked half commissions on the value of the bonds, as constituting a sum of money received by them. Held, that the bonds, in respect to the principal thereof, were specific legacies, and that no commissions were allowable on their value. Where the share of one of the residuary legatees was provided for by a specific devise of land, the executor was not allowed commissions upon it. (Burtis v. Dodge, 1 Barb. Ch. 77.) 88 Cairns v. Chaubert, 9 Paige, 160; Matter of MeAlpine, 15 St. Rep. 532 ; Matter of Bennett, 16 Misc. 199; 38 N. Y. Supp. 945 ; sub nom. Matter of Clinton, 74 St. Rep. 534; affd., 12 App. Div. 132. Compare Matter of Cur- tiss, 9 id. 285. SBBetts V. Betts, 4 Abb. N. C. 324; Rowland v. Morgan, 3 Dem. 289. See Foley V. Egan, 13 Abb. Pr. (N. S.) 362, note; Matter of Baker, 35 Hun, 272 ; and ante, § 1001. Commissions ape not chargeable upon receipts and disbursements having only a con- structive, and not an actual, exist- ence. Accordingly, where testator re- cited that he had made, and might continue to make, advances to his children, etc., and had or might be- 827 Accountings. § 1003. allowed lum on the accounting, are properly included in the sum on which his commissions are calculated.^" So, where he is charged with loss resulting from his neglect to make regular in- vestments of a fund, he is entitled to commissions on the amount charged against him.*"' "Where an executor sells real estate, sub- ject to mortgages, which were personal liabilities of the decedent, he is entitled to commissions on the whole purchase price, includ- ing the amount of the mortgages, and is not limited to commis- sions on what remains after deducting the amount of the mort- gages therefrom.®^ Legacies are not subject to a charge for commissions, unless in- directly, by way of abatement, where the estate is not sufficient to pay the commissions. On a regular accounting, the whole amount of receipts and disbursements forms the basis of charging commissions, which are deducted, and the legacies are then paid out of the surplus remaining after the payment of the debts and expenses of administration.®^ Reinvestments of principal are not ground for allowing com- missions ;®* if they were, the principal would soon be impaired. Payment of dower, admeasured by a judgment of the Supreme Court, is not an executorial duty under the will, and no commis- sions can be allowed on the payment.®^ § 1003. Apportioning commissions. — Where there are several co-executors or co-administrators, the commissions should be com- come liable to pay certain sums for ecutrix and applied by her to her own them, and directed the amount of such use as beneficiary under the trust, payments, etc., to be deducted from (Stevens v. Melcher, 152 N. Y. 551.) their respective shares of his estate, — 92 Cox v. Schermerhorn, 18 Hun, 16. Held, that commissions must be com- But see Baucus v. Stover, 24 id. 109 puted upon the amount of the several (revd. on another ground, 89 N. Y. shares after making the deductions 1) ; and Matter of St. John, ante, provided for in the will. (Hill v. § 999, note 72. Nelson, 1 Dem. 357.) 83 Westerfield v. Westerfield, 1 90 Matter of Mount, 2 Eedf. 405. Bradf. 198. See Hosack v. Rogers, 9 Paige, 461. 9* Morgan v. Hannas, 13 Abb. Pr. 91 Matter of Mount, 2 Redf. 405. (N. S.) 361. In Matter of Hayden See Morgan v. Morgan, 4 Dem. 353; (125 N. Y. 776; aflfg. 54 Hun, 197), Gillespie v. Brooks, 2 Eedf. 349. Sur- the representative continued the tes- viving executors are not entitled to tator's business; — Held, that the commissions upon a sum paid to per- amounts paid out for expenses of the sonal representatives of a deceased ex- business, but subsequently repaid, in ecutrix, for arrears of commissions the general aggregate receipts, con- due to her. (Betts v. Betts, 4 Abb. stituted a reinvestment of the prin- N. C. 324.) And where testamentary cipal of the fund in his hands, on trustees have been allowed commis- which he was not entitled to commis- sions on so much of the corpus of the sions for his services. Followed, Beard trust fund as has been received by v. Beard, 140 N. Y. 260; 55 St. Rep. them they are not entitled to further 408. • commissions on sums received by the 95 Matter of Lawrence, 37 Misc. 702. cestui que trust who was also an ex- § 1004. Accountings. 828 puted upon the aggregate sums received and paid out by any and all of them, and not upon the amount received and paid out by each individually ;*® and the surrogate may apportion the com- missions among them according to the services rendered by them respectively. If he fails to do so (except in case of an estate over one hundred thousand dollars in value) , and the account is finally settled without apportionment, it seems that each is entitled to an equal share, irrespective of the relative services rendered.^'' Al- though commissions are intended to compensate executors for their services, care, and responsibility, and should be apportioned accordingly, yet because one executor voluntarily, and perhaps by design, takes possession of all the assets and transacts prac- tically all the business, it does not follow that he should receive all, and his co-executor none, of the commissions. ®® § 1004. Apportionment of three commissions. — In dividing the three commissions between the executors, according to the services rendered by them, each should be awarded the proportion thereof which the evidence shows he fairly earned ; and although this can- not be ascertained to a mathematical certainty, it is the duty of the surrogate to make the apportionment in view of the situation of the estate, and the residence and relation of the parties to it, and in consideration of the burden of the labors that fell upon each.^** The intention of the statutory provision for three commissions was that they should be given only when the trust has been fully administered. Consequently, where all three executors resigned before their duties were finished, three commissions will not be given to one of them who had alone managed the estate up to the time of his resignation: he is only entitled to receive one full commission on sums paid out for debts and legacies, — nothing 98 Valentine v. Valentine, 2 Barb. But where one of two trustees has Ch. 430; Betts v. Betts, 4 Abb. N. C. had almost the entire management of 324. But where the personalty is the trust estate, it is proper to award given to one class of persons and the to him two-thirds of the commissions proceeds of realty to another class, allowed to both trustees. (Matter of and each executor has solely admin- Curtiss, 9 App. Div. 285.) istered as to one kind of property and 99 Smith v. Buchanan, 5 Dem. 169; rendej-ed a separate account thereof. Matter of Franklin, 26 Misc. 107 ; 56 each executor is entitled to commis- N. Y. Supp. 858. Before the amend- sions on the funcJ he represents and' ment of 1881, providing for an appor- each class of persons should bear the tionment of commissions, no discrim- expense of accounting as to the fund ination could be made among them, in which It is interested. (Matter of although one of them performed most Mansfield, 10 Misc. 296; 31 N. Y. of the labor. See Matter of Harris, Supp. 684.) 4 Dem. 463; Matter of Van Nest, 1 9T White, V. Bullock, 4 Abb. Ct. App. Tuck. 130; Bohde v. Bruner, 2 Redf. Dee. 578. 333; Matter of Pike, id. 255. 98 Matter of Dunkel, 5 Dem. 188. 829 Accountings. § 1005. by way of commissions on the tody of the estate.^ Where, how- ever, two surviving executors, the third having died, pending the administration, completed the trust, three full commissions will be allowed, on the accounting of the survivors, to be apportioned among the latter and the representative of the deceased executor, although, by this means, each of the surviving executors will re- ceive commissions in excess of full commissions, by reason merely of the death of their co-representative.^ But the statute does not apply to a case where the representatives were appointed to suc- ceed each other and- did not act simultaneously in the administra- tion of the trust.^ This power to apportion commissions does not include the power totally to abate any executor's commission, ex- cept, perhaps, in case of misconduct resulting in. loss, or where the net estate proves to be less than one hundred thousand dollars.* § 1005. When commissions are payable. — The commissions are allowed only by order of the surrogate, and on the settlement of the account ; those claiming them have no authority to appropriate sums to their own use, as commissions, until they are so allowed,^ except in the ease of periodical payments of trust income.® If they do so, it is a misappropriation, and they are chargeable with interest, from the date of the withdrawal to the date of the decree 'J 1 Matter of Hayden, 54 Hun, 198; ing duly qualified and having done affd., 125 N. Y. 776. some acts in administration, the 2 Welling V. Welling, 3 Dem. 511; former was "entitled" to compensa- foUowed in Matter of Garrison, N. Y. tion. " The basis for her commissions Law J., July 28, 1890. See Matter of in the amount of the estate. I can Newland, 7 Misc. 728; 28 N. Y. Supp. see no other meaning to the words 496. ' full compensation.' This ' compensa- 3 Thus, in Matter of Kennedy ( N. tion ' is by means of commissions ; Y. Law J., June 13, 1891), the testa- full compensation, therefore, means tor appointed three executors, one of ' full commissions.' " ( Per Pratt, J. ) them being his wife, and provided, in 8 Freeman v. Freeman, 4 Eedf. 211; case of the death of any of them other Whitney v. Phoenix, id. 180 ; Wheel- than his wife, for the ' appointment of wright v. Wheelwright, 2 id. 501; another in place of the deceased exec- Matter of Willard, 29 St. Rep. 949; utor. The wife predeceased the testa- 9 N. Y. Supp. 555 ; Matter of Rich- tor. The other two executors quali- ardson, 2 Misc. 288; 23 N. Y. Supp. fied and entered upon the administra- 978. The commissions are to be de- tion of the estate. One of them after- ducted as of the date of the settle- ward died, and in his place another raent of the account, and not as of qualified and acted. The estate was the date of filing it. (Haskin v. Tel- of the value of $100,000 in excess of ler, 3 Redf. 316.) Until they are fixed the decedent's debts. Three full com- by the decree, the right to them is missions were disallowed. merely inchoate, and they cannot be 4 Matter of Kenworthy, 63 Hun, assigned. (Matter of Worthington 165; 44 St. Rep. 275. In that case, 141 N. Y. 9; 56 St. Rep. 561.) one of three executors was allowed 6 gee ante, § 1001. nothing, the others being allowed full 7 Wheelwright v. Rhoades, 28 Hun, commissions, on the ground that they 57; 11 Abb. N. C. 382; Carroll v. had performed all the work of the ad- Hughes, 5 Redf. 337; Matter of Pey- miniatration. Held, error; that hav- ser, 5 Dem. 244. §§ 1006-1008. Accountings. 830 but where there is no intentional violation of duty, and no loss or injury to the estate is shown, interest will not be charged thereon,* particularly where the taking of commissions was by the consent of the beneficiaries.® But they are not bound to part with pos- session or control of funds necessary to meet their commissions, until their claim thereto has been determined by the surrogate.'"* ARTICLE SEVENTH. THE DECEEE AND ITS EFFECT. § 1006. Decree an judicial settlement — To settle the accounts of a representative, is to ascertain what is justly due by him to the several persons who are entitled to share in the distribution of the moneys in his hands, after defraying the expenses of the trust.^^ The main purpose of a judicial settlement is the distribu- tion of the surplus, and some good reason must be given for omit- ting to make provision for such distribution in the decree pro- posed for signature.-'^ It is, of course, otherwise in the case of an intermediate account. A decree which merely settles the ac- count of the representative by fixing the amount of the balance in his hands subject to distribution, but which does not direct the distribution or name the distributees, or provide any mode of ascertaining them, or the shares due them, respectively, cannot be made the foundation of an action by one claiming to be entitled to one of such distributive shares.^' § 1007. Decree must contain summary of account. — " Each de- cree, whereby an account is judicially settled, must contain, in the body thereof, a summary of the account as settled, or must refer to such a summary, which must be recorded in the same book, and is deemed a part of the decree." ^* § 1008. Direction for payment and distribution Where an ac- count is judicially settled, " and any part of the estate remains, and is ready to be distributed to the creditors, legatees, next of kin, husband or wife of the decedent, or their assigns, the decree must direct the payment and distribution thereof to the persons 8 Beard v. Beard, 140 N. Y. 260. n People v. Coffin, 7 Hun, 608. See In Whitney v. Phoenix (s«pro), simple Seaman v. Duryea, 11 N. Y. 324. interest was charged. 12 Matter of Roux, N. Y. Surr. 9 Matter of Ross, 33 Misc. 163; 68 Decis. 1889, p. 603; Matter of Quinn, N. Y. Supp. 373; Matter of Franklin, N. Y. Law J., May 2, 1890. 26 Misc. 107 ; 56 N. Y. Supp. 858. 13 Johnson v. Richards, 3 Hun, 454. 10 Wheelwright v. Wheelwright, 14 Co. Civ. Proc, § 2551. supra. 831 Accountings. §§ 100'9, 1010; so entitled, according to their respective rights. In case of admin- istration in intestacy the decree must direct immediate payment and distribution to creditors, next of kin, husband or wife of the decedent, or their assigns, where the administrator has petitioned voluntarily for judicial settlement of his account as, and in the case, provided in subdivision two of section twenty-seven hundred and twenty-eight of [the Code] . If any person, who is a necessary party for that purpose, has not been cited or has not appeared, a supplemental citation must be issued," as heretofore mentioned.^^ " Where the validity of a debt, claim, or distributive share, is ad- mitted, or has been established, upon the accounting, or other pro- ceeding in the Surrogate's Court, or other court of competent juris- diction, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions concern- ing the same." " § 1009. Direcxion to deliver specific property — In either of the following eases, the decree may direct the delivery of an unsold chattel, or the assignment of an uncollected demand, or any other personal property, to a party or parties entitled to payment or distribution, in lieu of the money value of the property : "1. Where all the parties interested, who have appeared, manifest their consent thereto by a writing filed in the surrogate's ofiice. 2. Where it appears that a sale thereof, for the purpose of pay- ment or distribution, would cause a loss to the parties entitled thereto. The value must be ascertained, if the consent does not fix it, by an appraisement under oath, made by one or more per- sons, appointed by the surrogate for the purpose." ^'^ § 1010. Direction to retain money for undetermined claim. — " Where an admitted debt of the decedent is not yet due, and the creditor will not accept present payment, with a rebate of interest ; 15 Co. Civ. Proc, § 2743, as amended 17 Co . Civ. Proc, §§ 2744, 2811. 1898. This amendment precludes a The application, by the new Code, of decree of distribution upon an ac- this regulation to testamentary trus- counting of an executor, under the tees, as well as executors and admin- subdivision referred to. (Matter of istrators, sustains Carman v. Cowles, Lawson, 36 Misc. 96; 72 K Y. Supp. 2 Redf. 414. The former ruling that 645, and cases cited in § 919, note 39, an administratrix could not, through ante. ) A decree which distributes the the decree on an accounting, secure estate of a decedent should adjudge the setting apart to her of articles that the payment of the amounts to which she might, as widow, have be distributed be made by the indi- claimed to be exempt in her favor vidual and not as executor or admin- (Cornwell v. Deck, 2 Redf. 87), is istrator. (Matter of Monell, 28 Misc. now superseded by section 2724, as 308; 59 N. Y. Supp. 981.) amended 1893 (former § 2721). See 16 Co. Civ. Proc, § 2743, as amended § 510, ante. 1895. See § 2811. § 1011. Accountings. 832 or where an action is pending between the executor or adminis- trator, and a person claiming to be a creditor of the decedent;^* the decree must direct that a sum, sufficient to satisfythe claim, or the proportion to which it is entitled, together with the probable amount of the interest and costs, be retained in the hands of the accounting party; or be deposited in a safe bank or trust com- pany, subject to the surrogate's order; or be paid into the Surro- gate's Court, for the purpose of being applied to the payment of the claim, when it is due, recovered or settled ; and that so much thereof, as is not needed for that purpose, be afterward distributed according to law." ^* And\ where, on the judicial settlement of a testamentary trus- tee's account, a controversy respecting the right of a party to share in the money or other personal property to be paid, dis- tributed, or delivered over, " remains undetermined after the de- termination of all other questions upon wbich the distribution of the fund, or the delivery of the personal property depends, the decree must direct that a sum, sufficient to satisfy the claim in controversy, or the proportion to which it is entitled, together with the probable amount of the interests and costs, and, if the case so requires, that the personal property in controversy be retained in the hands of the accounting party ; or that the money be deposited in a safe bank or trust company, subject to the surrogate's order, for the purpose of being applied to the payment of the claim, when it is due, recovered, or settled ; and that so much thereof, as is not needed for that purpose, be afterward distributed according to law." 2" § 1011. Direction as to paying minor's and unknown person's share. — The Code gives very particular instructions as to the mode of 18 Such a provision is proper, even building remaining on the premises at though the action has not been com- the expiration of the term," it does menced, owing to inability to serve not make her a debtor to the lessee process upon the representative. ( Mat- until the term has actually expired, ter of Rasch, 26 Misc. 459; 55 N. Y. and where she dies before that time Supp. 434.) the court has no authority on the 19 Co. Civ. Proc, § 2745. See Giles judicial settlement of the accounts of v. De Talleyrand, 1 Dem. 97; Pu Bois her administrators to require them to V. Brown, id. 317; Matter of Brown, retain in their hands the probable 3 Civ. Proc. Rep. 39; Greene v. Day, amount of their claim under Co. Civ. 1 Dem. 45; Matter of Orser, 4 Civ. Proc, § 2745, authorizing such act Proc. Rep. 129. The section does not " where an admitted debt of the de- apply to actions involving claims in cedent is not yet due." (Matter of favor of the estate. (Matter of Trus- Henshaw, 37 Misc. 536; 75 N. Y. low, 37 Misc. 189; 74 N. Y. Supp. Supp. 1047.) 944.) Where a lessor, since deceased, 20 Co. Civ. Proc, § 2812. covenants to pay her lessee " for the 833 AccouNTmes. §§ 1012, 1013. paying and investing a legacy or a distributive share due to an in- fant,*^ or to a person who is unknown. ^^ § 1012. Direction as to paying unclaimed legacy — The decree " must also direct the executor or administrator to pay to the county treasurer a legacy or distributive share which is not paid to the person entitled thereto, at the expiration of two years from the time when the decree is made, or when the legacy or dis- tributive share is payable by the terms of the decree. The money, so paid to the county treasurer, can be paid out by him only by the special direction of the surrogate; or pursuant to the judg- ment of a court of competent jurisdiction." ^ § 1013. Conclusive effect of decree for payment and distribution. — With respect to directions in the decree for the payment and dis- tribution of the surplus, the statute declares that the decree is conclusive upon each party to the proceeding, for the judicial set- tlement of the account, who was duly cited or appeared; and upon every person deriving title from such a party.^ The usual provision, that the executor or administrator pay over the balance found in his hands, is not a payment so as to exonerate the fund distributable, as against the person to whom it is made payable. The decree gives to the distributee a remedy against the exec- utor personally, for his proportion of the fund found to be in the 21 Co. Civ. Proc, § 2746. See § 792, found due to the surrogate, taking his ante. receipt as paid to the next of kin, if 22 Co. Civ. Proc, § 2747. See Peo- the surrogate fails to pay over to pie V. Chapin, 101 N. Y. 682. those entitled, since such payment is 23 Co. Civ. Proc, § 2748. See Koch not a payment into court, which, if at V. Woehr, 3 Dem. 282. Notice of the any time required, is to be made to application for payment of a dis- the county treasurer. (Matter of Te tributive share must be given to the Culver, 22 Misc. 217 ; 49 N. Y. Supp. other next of kin. (Matter of Mur- 820.) The consul-general of Italy has ray, 44 App. Div. 640.) As to pay- the right, under the treaty with that ment of shares of absentees to next of country, upon giving a proper receipt, kin, see Matter of Sullivan, 51 Hun, to demand and receive the distributive 378. Where a legatee died before the shares in an estate belonging to per- legacy was payable and no adminis- sons in his country which have been trator of his estate had been ap- deposited in court. (Matter of Tar- pointed, — Held, that a decree for pay- taglio, 12 Misc. 245 ; 33 N. Y. Supp. ment to his next of kin, under Co. 1121.) See ante, § 470, note 45. Civ. Proc, §§ 2747, 2748, was not ap- 24 Co. Civ. Proc, §§ 2743, 2811. An propriate, but on an accounting by the executor who has accounted and been executor the amount should be ordered discharged remains liable to account paid into court. (Matter of Morgan, to persons interested in the estate 1 Misc. 71; 54 St. Eep. 236.) Ad- who were not made parties to the ac- ministrators are not relieved from counting and to refund them their their liability to the next of kin for share of moneys misapplied by him. the sums due to each as distributive (Matter of Lamb, 10 Misc. 638; 32 shares of the estate, by the fact that N. Y. Supp. 225.) The general sub- just before entry of the decree upon ject of the effect of surrogates' de- final accounting they paid the amount crees is treated in c. XXI, post. 53 § 1013. Accountings. 834 hands of the latter. But this remedy is cumulative, and does not impair, in the least, the remedy against the fund itself. Nothing short of actual payment, or some act of the distributee to its preju- dice, will exonerate the trust fund from the claims of the latter. ^^ A surrogate's decree on an executor's accounting does not dis- charge him as executor, and terminate the responsibilities of his sureties, merely because the will expressly gives the assets to him in trust, and the decree directs him to retain the balance found to be in his hands, and invest it, and keep it invested according to the trust expressed in the will.^® 25Clapp V. Meserole, 38 Barb. 661; of the decree must be to terminate affd., 1 Abb. Ct. App. Dec. 362. See executorial functions as to this fund, Mosher v. Hubbard, 13 Johns. 510. as well as to inaugurate the functions 26Cluff V. Day, 124 N. Y. 195; 26 of a trustee. (lb.) As to continuing Abb. N. C. 300. To terminate his liability of sureties in executor's bond, holding as executor, and charge him see § 466, ante. thereafter solely as trustee, the effect CHAPTER XX. GUARDIANSHIP. TITLE riRST. GENEEAL GUAEDIANS. ARTICLE EIRST. APPOINTMENT AND GENERAL POWERS. § 1014. Concurrent jurisdiction of surrogate and other courts. — The Code contains a general clause, giving the Surrogate's Court jurisdiction " to appoint and remove guardians for infants ; to com- pel the payment and delivery by them of money or other property belonging to their wards ; and in the cases specially prescribed hy laiu^ "to direct and control their conduct, and settle their accounts ;" which jurisdiction must be exercised in the cases, and in the man- ner prescribed by statute.^ General guardians of minors may be appointed by the Supreme Court, etc., under the General Rules of Practice, or by the surrogate, under the Code.^ Appointment in the former mode is regulated by General Rules 52, 53, and 54.* The Supreme Court, as the successor of the Court of Chancery, independently of the Code and General Rules, acts as the guard- ian of all infants, and this is regarded as one of its important functions, and this power of the Supreme Court is paramount to 1 The italics conform to Morgan, v. thority of a. statute. ( Co. Civ. Proc, Hannas (13 Abb. [N. S.] 361), and § 2481, subds. 4, 5; which extend also are a substitute for " as prescribed by to executors, administrators, and trus- law," in the original. tees.) See Thomson v. Mott, 5 Eedf. . 2 Co. Civ. Proc, § 2472, subd. 7 ; 574. Matter of Bolton, 159 N. Y. 129. 3 The power of appointing the Among the incidental powers confer- guardian of an infant can only be ex- red upon a surrogate, are included the ercised by the courts having authority power to enjoin, by order, a guardian, in such cases, or by the infant's father to whom a citation or other process or mother. (Fullerton v. Jackson, 5 has been duly issued from his court, Johns. Ch. 278; Hoyt v. Hilton, 2 from acting as such, until the further Edw. 202 ; Matter of Lichtenstadter, order of the court; and to require, by 5 Dem. 214.) order, a guardian, subject to the juris- * Whether " the court," mentioned diction of his court, to perform any in Eule 52, may be any other than duty imposed upon him, by statute, or the Supreme Court, quaere. by the Surrogate's Court, under au- [835] §§ 1015, 1016. G 0AEDIANSHIP. 836 that of the surrogate; and the fact that the surrogate has ap- pointed a guardian of the person or estate, or both, does not inter- fere with the power of the Supreme Court to control the custody of the minor.^ § 1015. Extent of surrogate's power to appoint " The Surro- gate's Court has the like power and authority to appoint a general guardian, of the person or of the property, or both, of an infant, which the chancellor had on the 31st day of December, 1846." ® It has also power and authority to appoint a general guardian, of the person or of the property, or both, of an infant whose father or mother is living, and to appoint a general guardian^ of the property only, of an infant married woman.^ § 1016. What surrogate has jurisdiction — The Code permits the appointment of a general guardian for, and on the application of, an infant, of the age of fourteen years or upward, by the Surro- gate's Court of the county in which he resides; or if he is not a resident of the State, by the Surrogate's Court of the county in 5 Wilcox V. Wileox, U N. Y. 575. See Strubbe v. Kings County Trust Co., 60 App. Div. 548 ; 69 N. Y. Supp. 1092. It was held, in the early cases, that the guardian, whether appointed by the surrogate or in any other way, is deemed an officer of the Supreme Court, within the rule that he may be summarily proceeded against by that court and removed, and compel- led to account there; and that the surrogate had not concurrent juris- diction with the Supreme Court to re- move or change a guardian appointed by th'&.t court, or to compel such a guardian to account, either before or after removal. See Disbrow v. Hen- shaw, 8 Cow. 349; Ex p. Crumb, 2 Johns. Ch. 439; Matter of Andrews, 1 id. 99; Matter of Dyer, 5 Paige, 534; People ex rel. Pruyne v. Watts, 122 N. Y. 238; Matter of White, 40 App. Div. 165; 57 N. Y. Supp. 862; aflfd., 160 N. Y. 685. In the last case it was held, that where the Su- preme Court, upon the petition of the infant, appointed the father guardian of his person and estate, it may, upon notice to both, revoke the appoint- ment, against the wish and without the consent of the infant, and appoint a trust company guardian. * That is, the day before the Con- stitution of 1846 took effect, whereby the Court of Chancery was abolished. The reason for thus providing, instead of making the power coincident with that of the Supreme Court, is given in Mr. Commissioner Throop's note to Co. Civ. Proc, § 2821. 7 Co. Civ. Proc, § 2821; confirming Matter of Herbeck (16 Abb. Pr. [N. S.] 214), which held that the husband of a female infant, though himself an adult, does not, since the Married Women's Acts, acquire control of her property by marriage, and that the Surrogate's Court has, therefore, au- thority to appoint a guardian of the estate of a married female infant; and it was intimated that an existing guardianship of a female infant is not, since those acts, terminated as to her property, by marriage. Such is now the law by statute. (L. 1896, c. 272, § 54.) It had been previously held, that the marriage of a female ward terminated the guardianship (Brick's Estate, 15 Abb. Pr. 12); but this ruling must now be deemed super- seded, so far as guardianship of the estate is concerned. The statute re- quires that where the petitioner is a nonresident married woman, and the petition relates to personal property only, it must affirmatively show that the property is not subject to the con- trol or disposition of her husband, by the law of the petitioner's residence. (Co. Civ. Proc, §§ 2822, 2827.) 837 Gtjaediai^ship. §§ 1017, 1018. ■which any of his property, real or personal, is situated.* The jurisdiction of the surrogate depends on the fact of the residence of the minor within his county;* not on the domicile or legal resi- dence, but on the actual residence. ■''' § 1017. Temporary g^iardiaiiship. — The same facts, as to resi- dence or location of property, determine the jurisdiction of the Surrogate's Court, to appoint a general guardian of an infant, under fourteen,^^ but, in such case, the appointment is only tem- porary ; the application must be made by a relative, or some other person in behalf of the infant, and the surrogate must nominate, as well as appoint, the guardian.^^ On reaching the age of four- teen years, the infant may, of course, apply, for the appointment of anot;her guardian, to the surrogate of the county of his then residence, and such appointment will supplant the guardian pre- viously appointed and terminate his office, without the entry of a formal order to that effect.-'^ § 1018. Surrogate's power as affected by prior appointments The Code permits proceedings by the surrogate in either of the following cases: (1) Where a general guardian, such as is ap- plied for, has not been duly appointed, either by a court of com- 8 Co. Civ. Proc, § 2822. In Matter pctency of the testator the uncle sent of Hosford (2 Redf. 168), it was de- the child to its maternal grandmother cided, before the present Code, that in New York, — Held, that the change the surrogate had not jurisdiction to having been made without due au- appoint a guardian of the person and thority, and the child having equally estate of a minor, resident in another near relatives in Connecticut, she did State, even if having property here, not become a resident of New York, But see contra, Andrews v. Town- and that an order appointing a guard- shend, 53 N. Y. Super. (J. & S. ) 522. ian in the latter State should be re- » Brown v. Lynch, 2 Bradf. 214. versed. Compare Dutton v. Button, 8 How. 12 Co. Civ. Proc, § 2827. The term Pr. 99 ; Matter of Hubbard, 82 N. Y. of ofl&ce of a. guardian, for an infant 90; Matter of Wildberger, 25 Misc. under fourteen, expires when he at- 582; 55 N. Y. Supp. 1135! tains the age of fourteen years. (Co. 10 Matter of Pierce, 12 How. Pr. Civ. Proc, § 2828.) After attaining 532; Matter of Bartlett, 4 Bradf. 221; that age, he is not, however, entitled. Matter of Hughes, 1 Tuck. 38. In the as of course, to elect a new guardian last case, it was held, that a, relative, (Matter of Nicoll, 1 Johns. Ch. 25; not being guardian, could not change Matter of Dyer, 5 Paige, 534) ; but the legal residence, so as to affect the the guardian continues to retain all surrogate's jurisdiction. See § 143a, his powers and authority, and is sub- ante. ject to all the duties and liabilities of 11 Matter of Daniels, 71 Hun, 195; a guardian, until his successor is ap- 24 N. Y. Supp. 506. In that ease the pointed and has qualified, or until hia will of the father of an infant who letters are revoked; and his sureties had resided in Connecticut appointed are responsible accordingly. (Co. Civ. the child's maternal uncle in that Proc, § 2837.) State, with whom she had resided after 13 Matter of Sullivan, N. Y. Law J., her mother's death, as guardian; the Aug. 1, 1890; Matter of Monell, id., will having been set aside for incom- Oct. 28, 1891. § 1019. GUAEDIANSHIP. 838 petent jurisdiction of the State, or by the will or deed of his father or mother, admitted to probate or authenticated, and, re- corded, as prescribed in section 2851 of the Code. (2) Where a general guardian, so appointed, has died, become incompetent or disqualified; or refuses to act; or has been removed; or where his term of office has expired.** § 1019. Nomination by infant over fourteen. — If the infant is of the age of fourteen years or upwards, the application must be by his or her written petition, duly verified, setting forth the facts upon which the jurisdiction of the court depends, and praying for a decree appointing a general guardian, naming him,*^ either of the person or of the property of the infant, or both, as the case requires; and, if necessary^ that the persons, entitled by law to be cited upon such an application, may be cited to show cause why such a decree should not be made. The petition " must also state whether or not the father and mother of the petitioner are known to be living. If either of them is known to be living, and the petition does not pray that the father, or, if he is dead, that the m'other, may be appointed the general guardian, it must set forth the circumstances which render the appointment of another person expedient; and must pray that the father, or, if he is dead, that the mother, of the petitioner should be cited to show cause why the decree should not be made." *® The petition should show which of the relatives reside in the county, and, also, the amount of the infant's property in this State, so as to enable the court to fix the penalty of the bond.*^ The surrogate has power to revoke the appointment of a guardian, based on a petition which omits these particulars.-'^ l*Co. Civ. Proc, §§ 2822, 2827. ian he may be pleased to nominate, Where the ease ia within subdivision provided oijjy that the nominee be, in second, the petition must pray that the surrogate's' judgment, a proper the person formerly appointed general person to execute the trust. The sur- guardian may be cited, unless it is rogate has a discretion to determine shown that he is dead. (Co. Civ. whether the interests of the infant Proc, § 2823.) will be promoted by the appointment 16 Co. Civ. Proc, § 2826. This does of any guardian. (Ledwith v. Led- not confer upon an infant of fourteen with, 1 Dem. 154.) years, or upward, plenary authority W Co. Civ. Proc, § 2823. to emancipate himself, at pleasure, 17 Johnson v. Borden, 4 Dem. 36. from parental control. The provisions 18 Matter of Feely, 4 Eedf. 306. of that section afford no support for Where application for the guardian- the claim that such an infant, having ship of infants was made by their no testamentary or general guardian, maternal grandmother, and the peti- has an absolute right, even though his tion did not disclose the fact that the parents are living, to demand from paternal grandfather was, at the time, the Surrogate's Court the appointment living and residing in the county, and of a guardian, and of whatever guard- letters were issued to the petitioner 839 GuAEDiANSHip. §§ 1020, 1021. § 1020. Citation — The Code contains a clause to the effect that, where it is prescribed that a petition must pray that a person, or that creditors, etc., may be cited for any purpose, all those persons are necessary parties to the special proceeding.-'^ By an examina- tion of the foregoing provisions, with respect to the contents of a petition for the appointment of a general guardian, it will appear that a citation is in some cases essential. In others, however, it may be dispensed with. It is, however, specially provided that a citation, issued to the father of the petitioner, must be served at least ten days before it is returnable.^" § 1021. Notice to relatives, when discretionary It is made the duty of the surrogate to "inquire and ascertain, as far as practi- cable, what relatives of the infant reside in his county; and he may, in his discretion, cite any relative or class of relatives of the infant, residing in that county or elsewhere, to show cause why the prayer of the petition should not be granted." ^ In this re- spect, the surrogate's course of procedure is just as undefined by statute, and just as discretionary, as that of the Supreme Court; and having once obtained cognizance of the subject-matter, by the residence of the minor and application for guardianship, his jurisdiction is as broad as that of such court.^ But, though notice of the hearing to the relatives is within the discretion of the surro- gate, yet it is deemed necessary, for the purpose_ of having the rights of the infant properly attended to,^ and to enable them to appear, if they think proper, not as parties, but for the purpose of giving the surrogate the requisite information as to the value of the infant's property, and as to the propriety of the appoint- without notice to the grandfather, the 20 Co. Civ. Proc, § 2823. This letters were revoked upon the appli- seems to apply only where the infant cation of the latter. (lb.) Failure petitions, i. e., where he is over four- to cite the grandfather of the infant, teen years. See Co. Civ. Proc, § 2827. residing without the State, is no 21 Co. Civ. Proc, §§ 2823, 2827. ground for setting aside the appoint- See Ledwith v. Ledwith, 1 Dem. 154. ment of the infant's aunt as guardian. This, and the other provisions of sec- ( Matter of Bennett, 24 Week. Dig. tion 2823, apply " where the petitioner 233.) is a married woman; except that her 19 Co. Civ. Proc, § 2518. See § 89, husband must also be cited, and that ante. Letters issued to a general the surrogate may, in his discretion, guardian need not show on their face make a decree, appointing a guardian that a citation was issued to the of her property, without citing her former general guardian, as the ab- father or her mother." (Co. Civ. sence of such recital is not proof that Proc, § 2824.) the citation was not in fact issued 22 Matter of Dawson, 3 Bradf. 130. and served. (Prentiss v. Weatherly, 23 Underbill v. Dennis, 9 Paige, 202; 68 Hun, 114; 22 N. Y. Supp. 680; White v. Pomeroy, 7 Barb. 640. aff'd., 144 N. Y. 707.) § 1022. GUAEDIANSHIP. 840 ment of the applicant or person named in the petition.^* Especially is such notice requisite, where the application is made by a person not coimected with the infant by blood or affinity.^ An omission by the surrogate to make proper inquiries as to who are the rela- tives, or to cause the near relatives to be notified, is a ground for setting aside his appointment.'® § 1022. Hearing and decree — " Upon the return of the citation,, the surrogate must make such a decree in the premises as justice requires. He may, in his discretion, hear allegations and proofs from a person not a party. Where a citation is not issued, the surrogate must, upon the presentation of the petition, inquire into the circumstances. For the purpose of such an inquiry, or of an inquiry into the amount of security to be required of the guardian, he may issue a subpcena, requiring any person to at- tend before him, to testify respecting any matter involved therein. If he is satisfied that the allegations of the petition are true in fact, and that the interests of the infant will be promoted by the appointment of a general guardian, either of his person or of his property, he must make a decree accordingly, except that a guard- ian of the person of a married woman shall not be appointed. In a proper case, he may appoint a general guardian in one capacity^ vsdthout a citation; and issue a citation, to show cause against the appointment of a general guardian, in the other capacity." ^'^ Where a general guardian of the property of an infant is ap- pointed, "the surrogate must inquire into the infant's circum- stances, and must ascertain, as nearly as practicable, the value of his personal property, and of the rents and profits of his real property." ^ 24Kellmger v. Roe, 7 Paige, 362; ter of Van Vranken, 20 St. Rep. 387.) Cozine v. Horn, 1 Bradf. 143. In Matter of Church (N. Y. Law J., 25 Morehouse v. Cooke, Hopk. 226. Nov. 28, 1890), the petition for the 26 Underhill v. Dennis, 9 Paige, 202 ; appointment of a guardian for an in- Matter of Feely, 4 Redf. 306. Where fant under fourteen years of age,. a surrogate has appointed a. general showed that an aunt, an uncle, and a guardian of an infant, without notice great-uncle resided within the county,, to the relatives of the infant residing — Held, that the omission to cite them in the county, and it appears that was irregular, though Hot a jurisdie- the relatives would have opposed such tional defect. But the omission to appointment, had notice been served cite a person named guardian in the upon them, the Supreme Court will, deceased father's will was such a de- upon application, remove such guard- feet, though such person had not ian and appoint a new one. (Matter qualified or had letters issued to him of Rickard, 15 Abb. Pr. [N. S.] 6.) as a testamentary guardian. S. P., Smith V. Smith, 2 Dem. 43. 27 Co. Civ. Proc, § 2825. Notice need not be grveB to an infant 28 Co. Civ. Proc, § 2829. The under fourteen for an appointment of original statute expressly directed a general guardian, but notice should that, in eases of application for minors be given to his nearest of kin. (Mat- under fourteen, the surrogate must 841 GUAEDIANSHIP. § 1023. § 1023. Infant's right of appointment not absolute The in- fant's right of appointment is not absolute, "whether his parents are living or dead. The surrogate must determine whether the nominee is a proper person to execute the trust.^^ If an infant over fourteen years of age neglects to nominate a person for the guardianship, it seems that the surrogate has no power to do so.^" Upon an application by a person in behalf of an infant under fourteen years, the surrogate, as already mentioned, must nom- inate, as well as appoint, a temporary guardian.^* In making the appointment, the surrogate's power and discretion are entirely unlimited, except by such known and established principles as govern the conscience of all courts of equity, and are not under the control of the relatives in any respect,^^ and his power is to be exercised in accordance with what appears to be for the best interests of the minor, taking into view not merely his temporary welfare, but the state of his affections, attachments, his training, education, and morals,''* and also the expressed wishes of the de- ceased parents.^* Although a father is entitled by right of na- ture to guardianship of his child, still, where the best interests of the child demand it, it is the court's duty to award the custody to other hands. *^ Since the Married Woman's Act, there is no assign a day for the hearing; but this 34 Poster v. Mott, supra; Underbill might be the day on which the peti- v. Dennis, 9 Paige, 202; Bennett v. tion was presented if he determined Byrne, 2 Barb. Ch. 216; Matter of that notice to the relatives need not Pierce, 12 How. Pr. 532; Cozine v. be given. And this was presumed to Horn, 1 Bradf. 143 ; Smith v. Smith, be the case, where there was nothing 2 Dem. 43. The objection that the to show that this course was not taken, surrogate has appointed his own rela- ( People V. Wilcox, 22 Barb. 178.) tive as guardian does not go to the 29Ledwith v. Ledwith, 1 Dem. 154. jurisdiction. (Underbill v. Dennis, 9 30 Sherman v. Ballon, 8 Cow. 304. Paige, 202.) See Matter of Van Wag- si Co. Civ. Proc, § 2827. onen, 69 Hun, 365 ; 52 St. Rep. 669. 32 Matter of Dawson, 3 Bradf. 130. 35 Griffin v. Sarsfield, 2 Dem. 4; 33 Poster V. Mott, 3 Bradf. 409; Johnson v. Borden, 4 id. 36. Consid- Smith V. Smith, 2 Dem. 43. The erations affecting the health and wel- mother of an infant of ten years, and fare of a child may justify a court in also a friend of its deceased father, withholding the custody of it tempo- entitled to a small .estate, petitioned rarily, even from its legal guardians; separately for the guardianship of his and they are so purely matters of person and property, and it appeared discretion with the court of original that the infant had, for three years, jurisdiction that the appellate court resided with, and been cared for by, will not review the conclusions the latter petitioner, to whom the thereon, unless some manifest error father had informally intrusted him; or abuse of discretion is made to ap- that the father had been for several pear. (Matter of Welch, 74 N. Y. years separated from his wife for her 299.) As to discretion of the surro- fault; and that she was engaged in gate in making the appointment, see a disreputable business while the Matter of Vandewater, 115 N. Y. 669. other petitioner was a suitable person. Letters of guardianship may be re- The surrogate denied the mother's pe- fused to a father on the ground that tition. (Burmester v. Orth, 5 Eedf. his habits are such as to demoralize 259.) and endanger the safety and future § 1023. GuAEDiAi«"SHip. 842 objection to tlie appointment of a mother who has remarried and is living with a second husband. ^^ Where the father and mother are both living, the statute declares the latter "to be the joint guardian of her children with her husband, with equal powers, rights, and duties, in regard to^ them, with the husband.'^ The surrogate is not restricted, in his appointment, to relatives of the infant; he may appoint a competent stranger. But other things being equal, a relative will be preferred to a stranger.^® The same person may be appointed guardian of an infant in both capacities; or the guardianship of the person and of the property may be committed to different persons,^' but a joint condition of the children. (Matter of garded. (Johnson v. Borden, 4 Dem. Watson, 10 Abb. N. C. 215; Matter of 36.) Eaborg, 3 St. E«p. 323.) S. P., Ma,t- 37 Laws 1893, chap. 175, amending ter of Meech, 1 Connoly, 536. Under 2 R. S., chap. 8, tit. 3, § 1; Laws ordinary circumstances, the mother, 1896, chap. 272, § 51. after the decease of the father, is en- 38 Morehouse v. Cooke, Hopk. 226. titled to the custody of her infant Nonresident relatives are not ineligi- children; but the security, good con- ble. (Matter of Dawson, 3 Bradf. duet, and well-being of the children 130.) See Matter of Zeller, 25 Misc. are the important considerations to 137. The inheritance of real prop- be regarded, and, where those ends erty, by an infant, from his father, can only be best accomplished by de- creates no preference in favor of the priving the mother of their custody, paternal over the maternal relatives, it is the uniform practice of the courts ( Underbill v. Dennis, 9 Paige, 202. ) to do so. (Matter of Sehroeder, 17 In a contest between the stepmother Week. Dig. 71.) The mother, in the and the aunt of an infant, for letters absence of the father, has the right to of guardianship, where the infant had influence and direct the conduct, resi- no property, and the stepmother had dence, education, occupation, and as- nothing except what she could earn, sooiates of her infant child. (Matter but the aunt had a moderate income of Barrg, 5 Redf. 64.) In a contest for life, the guardianship was awarded between husband and wife for the cua- to the stepmother, to avoid the sepa- tody of a daughter of six and a son ration of the infant from a brother of five years, where there is no ob- in the charge of the stepmother, and jection to the mother personally, it to carry out the wish of the infant's is for the welfare of the children to deceased father. (Matter of De Mar- leave them with her. An inquiry as cellin, 4 Redf. 299; affd., 24 Hun, to the husband's ill-treatment of the 207.) The sole executor of the estate mother is pertinent in such case, of a deceased father is not a proper (Matter of Pray, 60 How. Pr. 194.) person to be appointed the general 36 Matter of Hermance, 2 Dem. 1. guardian of his orphan child, as it The cases of Holley v. Chamberlain (1 might lead to a gross wrong. (Matter Redf. 333) and Swartwout v. Swart- of Rickard, 15 Abb. Pr. [N. S.] 6.) wout (2 id. 52) are obsolete on this This rule was reaffirmed in Matter of subject. Where an infant of the age Lane, N. Y. Law J., June 6, 1893. A of fourteen years, or upwards, peti- corporation may receive letters of gen- tions for the appointment of a general eral guardianship of an infant's prop- guardian, and it appears that his erty. (Ledwith v. Ledwith, 1 Dem. father is a resident of a distant State, 154; L. 1885, c. 425; L. 1900, c. 552 and that there exists such a feeling [banking corporations] ; L. 1901, of antagonism between the two as to c. 443, as amended by L. 1902, c. 360 induce the belief that the petitioner's [trust companies].) welfare will be best subserved by the 39 Co. Civ. Proc, § 2821. See Peo- appointment of another person, the pie v. Kearney, 31 Barb. 430. claims of the father will be disre- 843 GuAEDiANSHip. §§ 1024-1026. guardianship of an infant's person should not be made.*" The surrogate may, as a condition of awarding the custody of an in- fant to an applicant for letters, require the latter to permit access to his ward by such persons as the court may designate.*^ § 1024. What constitutes appointment. — A guardian, like an executor or administrator, gets no authority until his letters are signed and delivered, or, at least, are ready for delivery. His appointment results from several steps and culminates and is finished in the delivery of the signed and sealed letters, after their record in the guardian's book, to the guardian. Entries in the court's minutes do not constitute an appointment any more than an order for judgment, in the minutes of the court, consti- tutes the judgment.*^ § 1025. Conclusive effect of an appointment. — Where the peti- tion contains sufficient facts to give the surrogate jurisdiction of the person of the infant, and he proceeds regularly and ap- points a guardian, the appointment is valid until it is reversed or vacated by a direct proceeding for that purpose; and although the infant never resided in the county of such surrogate, an action to vacate the appointment cannot be maintained.*^ § 1026. Two or more jniardians — The trust of two or more guardians of the same infant is, in its nature, joint and several, and they may act separately or in conjunction. They are jointly responsible for joint acts, and each is solely responsible for his own acts and defaults, in which the others did not participate, and the fact that they gave a joint and several bond to the surro- 40 Matter of Annan, 74 Hun, 19; 26 of said cMld. (Matter of Lindley, 1 N. Y. Supp. 258; 143 N. Y. 623. Connoly, 500; 9 N. Y. Supp. 291.) ■4lDerickson v. Derickson, 4 Dem. 42 Potter v. Ogden, 136 N. Y. 384, 295; s. e. as Matter of Derickson, 3 401; 49 St. Eep. 829. How Pr. (N. S.) 21. But on an ap- « Dutton v. Button, 8 How. Pr. 99. plication made by a person other than And see Matter of Pierce, 12 id. 532. the father of an infant that such In Matter of Sherman (N. Y. Law J., person be appointed guardian of the May 31, 1892), on an application to person of the infant and a trust com- the surrogate of New York for guard- pany guardian of the infant's estate, ianship of the person, it appeared that the court has no power to grant the letters of general guardianship had application of the father (who has already been granted by the surrogate been adjudged an habitual drunkard), of Saratoga county, but it was alleged that the order of appointment shall that the person to whom such letters provide that the guardian of the es- had been issued had removed the in- tate shall advise him of all matters fant from New York county, where he which may aflfect the infant's estate, resided, for the purpose of making the and that the guardian of the person application in that county. Held, that shall allow him to see his child at all the jurisdiction of the Saratoga' sur- suitable times, and shall consult with rogate could not be questioned ool- him in reference to the management laterally in this proceeding. § 1027. Guardianship. 844 gate, with the same sureties, for the discharge of their trust, does not vary their liability.** The guardianship of a judicially ap- pointed guardian, as well as of a testamentary guardian, is deemed an authority coupled with an interest; and where two guardians are appointed, and one of them dies, it continues to the survivor.*^ § 1027. Oath of office and official bond. — The guardian must file with the surrogate, before letters are issued io him, an official oath or affirmation to the effect that he will well, faithfully, and honestly discharge the duties of his office.**^ A guardian of the property must also execute, and file with the surrogate, his bond to the infant, for the faithful discharge of his trust, etc. ;*'^ and the surrogate has a discretion to require an official bond from the general guardian of an infant's person.*^ The form and con- dition of such a bond, and the rules pertaining to its renewal, the liabilities incurred thereunder, and actions thereupon, have been generally presented in the chapter on official bonds.*® 44 Kirby v. Turner, Hopk. 309. See Johns. Cas. 53 ; Muir v. Wilson, Hopk. ante, § 602. 512; Clark v. Montgomery, 23 Barb. 45 People V. Byron, 3 Johns. Cas. 53. 464; Matter of Callahan, 1 Taek. 62; 46 Co. Civ. Proe., § 2594. Matter of Hamlen, id. 408 ; Matter of 47 Co. Civ. Proc., § 2830; arete, § 478. Patterson, 39 St. Rep. 849. An ac- As to the form of security, see Rule counting by a guardian is not a pre- 54 of the General Rules of Practice, requisite to an action against the sure- The surrogate may dispense with a ties upon his bond, in those cases in bond, on appointment of a trust com- which the extent of his liability has pany as guardian. (L. 1885, c. 425.) been otherwise as definitely deter- The provisions of Co. Civ. Proc, mined as it could be by accounting. § 2595, — allowing the surrogate to (Girvin v. Hickman, 21 Hun, 316.) accept a less bond on deposit of securi- Nor is the issue and return of an ex- ties, — were extended to the case of ecution necessary, where a decree has guardians by L. 1885, c. 516. A guard- been made fixing the guardian's lia- ian of an infant, giving security upon bility. (Allen v. Kelly, 55 App. Div. his appointment in one county, must 454; Van Zandt v. Grant, 67 id. 70.) deposit a bond before he can obtain The appointment of, and the security possession of his ward's estate in an- to be given by, a special guardian ap- other county. (Flagg v. Harbeck, 6 pointed to sell an infant's real prop- Dem. 289; Rieck v. Fish, 1 id. 75.) erty, are regulated by General Rules So, too, in case of payment to a sue 57-59. As to the liability of the sure- cessor of a deceased guardian, by the ties on such a guardian's bond, see executor of the latter, of moneys in Center v. Finch,/ 22 Hun, 146. A the hands of the first guardian at the guardian, being insolvent, his sureties time of his death. (Van Zandt v. must be prosecuted before a motion is Grant, 67 App. Div. 70.) made for an attachment against him. 48 Co. Civ. Proc, § 2831. (Matter of Callahan, 1 Tuck. 62.) A 49 See ante, § 456 et seq. See, also, guardian's bond was ordered prose- the following decisions, relating to re- cuted when there had been a palpable quiring security from guardians, and breach of its fcondition, and the guard- the liability of the sureties in their ian had died leaving no will, and there bonds: Matter of Hedges, 1 Edw. 57; was no administration of his goods in Matter of Thorne, id. 507; Ferris v. this State. (Matter of Hamlen, 1 Brush, id. 572 ; Genet v. Tallmadge, 1 Tuck. 408. ) Where, upon the failure Johns, Ch, 561; People v. Byron, 3 of a general guardian to pay to his 845 GUAEDIANSHIP. § 1028. § 1028. Powers and duties of guardians Any person, who takes possession of an infant's property takes it in trust for the infant, and will be held to the same degree of responsibility as if he had been formally appointed to the office of guardian.®" Every gen- eral guardian,®^ whether testamentary or appointed, is required safely to keep the things that he may have in his custody belong- ing to his ward, and the inheritance, and not to make or suffer any waste, sale, or destruction of such things or inheritance, but to keep up and sustain the houses, gardens, and other appur- tenances to the ward's lands, by and with the issues and profits thereof, or with such other moneys of the ward as are in his hands; and to deliver the same to the ward, when he comes to full age, in as good order and condition, at least, as the guardian received the same, inevitable decay and injury only excepted; and to answer to his ward for the issues and profits of real estate received by him by a lawful account; and if the guardian makes or suffers any waste, sale, or destruction of the inheritance^ he shall lose the custody of the same and the ward, and shall forfeit to the ward thrice the sum at which the damages shall be taxed by the jury.®^ ward the amount fixed by the surro- gate's decree, the surety of the guard- ian is compelled to pay the same, such payment does not satisfy the decree, but the surety is subrogated to all the rights of the ward under the decree, and to the extent of the amount paid by him on account of such decree, he is entitled to issue execution against the person of the guardian. ( Rapp v. Masten, 4 Redf. 76.) 60 Cromwell v. Kirk, 1 Dem. 599. 51 Also, every " guardian in socage." B2L. 1896, c. 272, § 53, re-enacting 2 E. S. 153, §§ 20, 21. "A guardian in socage has, so far as the exigencies of the case at bar demand, the same powers and duties over his ward's es- tate as a general guardian. A general guardian has the power, and in some instances it is an imperative necessity and duty, to apply personal property of his ward to the payment of a mort- gage on land to which his ward suc- ceeds. (Banks v. Taylor, 10 Abb. Pr. 199; Ainsworth v. Aldrieh, 15 Week. Dig. 199.) Ordinarily, the adminis- trators would not be allowed the credit of such payment, but, inasmuch as one of them is the guardian in socage of the infants, I am of the opinion that so much of their personal property as is a proportionate part of their share in the payment should be allowed. The amount of the contribution of the life tenant and remaindermen should be computed and the administrators charged with the excess of the in- fants' proportion, with interest." (Per Ransom, S., in Matter of Farrell, N. Y. Law J., July 1, 1892.) As to the powers of a guardian in respect to property, see Banks v. Tay- lor, 10 Abb. Pr. 199; Matter of Rick- ard, 15 Abb. (N. S.) 6; White v. Par- ker, 8 Barb. 48; Hassard v. Rowe, 11 id. 22 ; Swartwout v. Oaks, 52 id. 622 ; Thacker v. Henderson, 63 id. 271; Poultney v. Randall, 9 Bosw. 232; Hoyt V. Hilton, 2 Edw. 202; Knothe V. Kaiser, 2 Hun, 515; Willick v. Tag- gart, 17 id. 511; Wilcox v. Van Schaick, 19 id. 279; Jackson v. Sears, 10 Johns. 435; Genet v. Tallmadge, 1 Johns. Ch. 561 ; Thompson v. Brown, 4 id. 619; Field v. Schieffelin, 7 id. 150; Copley v. O'Neil, 1 Lans. 214; Low v. Purdy, 2 id. 422; Bostwick v. Atkins, 3 N. Y. 53 ; Chapman t. Tib- bets, 33 id. 289; Emerson v. Spieer, 46 id. 594; affg. 55 Barb. 428; Torry V. Black, 58 N. Y. 185 ; revg. 65 Barb. 414; Van Epps v. Van Deusen, 4 Paige, 64; Putnam v. Ritchie, 6 id. 1029. Gtjaedianship. 846 § 1029. Application of infant's property. — A guardian takes the responsibility of encroaching upon the capital of a trust fund, of which his ward is entitled to the income; he must make out as 3»0; Burtis v. Brush, 1 Redf. 448; Carman v. Cowles, 2 id. 414; Torry v. Frazier, id. 486; Matter of Jackson, 1 Tuck. 71; De Peyster v. Clarkson, 2 Wend. 77; affg. Hopk. 424; Pond v. Curtiss, 7 Wend. 45 ; Bayer v. Phillips, 17 Abb. N. C. 425; Matter of Kopp, 2 N. Y. Supp. 495; Matter of Terry, 31 Misc. 477. A general guardian has no author- ity, even with the consent of the in- fant and by authority of the surro- gate, to invest the funds of the infant in real property so as to change its character for the purpose of descent upon the death of the infant during minority. (Matter of Bolton, 159 N. Y. 129.) See Matter of Decker, 37 Misc. 527; 76 N. Y. Supp. 315. Nor has he power to invest in trade or speculation. (Warren v. Union Bank of Rochester, 157 N. Y. 259.) Nor in bank stock, nor in a foreign corpora- tion. (Matter of Decker, supra.) As to investment of proceeds of sale under a power, paid to the guardian, see L. 1901, c. 166. As to demands, compromises, and suits, see White v. Parker, 8 Barb. 48; Thomas v. Bennett, 56 id. 197; Tuttle V. Heavy, 59 id. 334; Weed v. Ellis, 3 Cai. 253; Hauenstein v. Kull, 59 How. Pr. 24; Jackson v. Sears, 10 Johns. 435 ; Swarthout v. Curtis, 4 N. Y. 415; Chapman v. Tibbets, 33 id. 289; Evertson v. Evertson, 5 Paige, 644; Voessing v. Voessing, 4 Redf. 360; Matter of Jackson, 1 Tuck. 71; Matter of Chittenden, id. 251; Prentiss V. Weatherly, 68 Hun, 114; 22 N. Y. Supp. 680; affd., 144 N. Y. 707; Coughlin V. Pay, 68 Hun, 521; 22 N. Y. Supp. 1095. As to imposing restrictions upon ward's property by contract, see Curry V. Keil, 19 App. Div. 375. A general guardian may sue for and recover money received by defend- ant by collecting the rents and profits of the land of the ward (Field v. Schieffelin, 7 Johns. Ch. 150, 154; Thacker v. Henderson, 63 Barb. 271; Pond V. Curtiss, 7 Wend. 45; White V. Parker, 8 Barb. 48, 52; Chapman V. Tibbets, 33 N. Y. 289) ; for this is not an action relating to real property within Co. Civ. Proc, § 1666, which allows such actions to be in the in- fant's name. (Coakley v. Mahar, 36 Hun, 157.) As to whether a general guardian may maintain an action in his own name upon the official bond of his pre- decessor to recover for the misappro- priation of the infant's estate, see Perkins v. Stimmel, 114 N. Y. 359. As to dealings with the ward, see Limburger v. Ranch, 2 Abb. Pr. (N. S.) 279; Gale v. Wells, 12 Barb. 84; Low V. Purdy, 2 Lans. 422; Seaman V. Duryea, 11 N. Y. 324; Evertson v. Evertson, 5 Paige, 644. As to purchase by guardian indi- vidually, section 1679 only applies to guardians ad litem. See Boyer v. East, 161 N. Y. 580; Munsell v. Munsell, 33 Misc. 185; Kullman v. Cox, 26 App. Div. 158; Dugan v. Deuyse, 13 id. 214; O'Donoghue v. Boies, 92 Hun, 3; O'Brien v. General Synod, etc., 10 App. Div. 605. As to the custody,' residence, and support of the ward, see Clark v. Montgomery, 23 Barb. 464; Elliot v. Gibbons, 30 id. 498; Matter of Kane, 2 Barb. Ch. 375 ; Rait v. Rait, 1 Bradf . 345 ; Harring v. Coles, 2 id. 349 ; Eao p. Dawson, 3 id. 130; Matter of Bart- lett, 4 id. 221; People eo! rpJ. Brooklyn Industrial School v. Kearney, 21 How. Pr. 74; Hill v. Hanford, 11 Hun, 536; Wilcox V. Wilcox, 14 N. Y. 575; Wood v. Wood, 5 Paige, 596; Cook v. Lee, 6 id. 158; Clark v. Clark, 8 id. 152; Voessing v. Voessing, 4 Redf. 360; Seiter v. Straub, 1 Dem. 264; Matter of Wentz, 9 Misc. 240. As to payment and investment of legacies to infants, see § 792, ante. As to payment of infant's distribu- tive share, to general guardian, see Co. Civ. Proc, § 2746; § 792, ante; id., § 2796; L. 18-79, c. 389; § 833, ante. As to appearance by general guard- ian, in Surrogate's Court, for infant, see Co. Civ. Proc, § 2530 ; § 108, ante. As to enforcement of decree against guardian, see Co. Civ. Proc, § 2555; c. XXI, post. As to effect of certain appeals by guardian, see Co. Civ. Proc, §§ 2578, 2579; c. XXIV, post. 847 GuAEDiANSHip. § 1029. clear a case, for the subsequent sanction of his course, as he would have been required to do had he applied in advance for authority to adopt it.^^ A guardian may be allowed, in a proper case, for necessaries furnished to the infant before his appoint- ment as guardian.®* The surrogate may, upon the petition of the general guardian, or of the infant, or of any relative or other person in his behalf, upon notice to such persons, if any, as he thinks proper to notify, direct the application, by the guardian, of the infant's property, to the support and education of the infant, of such a sum as he deems proper, out of the income of the infant's property; or, where the income is inadequate for that purpose, out of the principal.®^ The rule, already referred to, that in proceedings against executors or administrators to com- pel the payment of a legacy or distributive share, payment can be decreed only where the legacy or share is not disputed, has no application to the case of a guardian; hence, on the applica- tion of a third person for a direction that a guardian pay for the ward's board furnished under an agreement with the guardian, the fact that the guardian disputes the claim does not oust the court of jurisdiction to make the direction."" 53 Oakley v. Oakley, 3 Dem. 140; settlement of his accounts the guard- Matter of Wandell, 32 Hun, 545 ; Mat- ian is entitled to be allowed such ter of Clements, N. Y. Daily Eeg., reasonable sum as has been in good Sept. 1, 1883. See Matter of Plumb, faith paid by him for that purpose. 52 Hun, 119. Upon the accounting of (Matter of Aekerman, 116 N. Y. 654; a widow as general guardian of the s. c. with opinion, 26 St. Kep. 666.) property of her son, where it appears Where a ward boards in the family of that she was in moderate cireum- her guardian, and, in fact, renders stances and there is an absence of any services of value, those services should facts indicating a purpose on her part be allowed as a claim to reduce the to relieve the son and his estate from charges for board. (Matter of Clark, liability for the latter's support, she 36 Hun, 301.) is entitled to an allowance for his past B5 Co. Civ. Proc, § 2846 ; which maintenance. (Matter of Winsor, 5 supersedes decisions to the contrary, Dem. 340; citing Matter of Bostwick, in Matter of Parker, 1 Barb. Ch. 154; 4 Johns. Ch. 100; Wilkes v. Rogers, and Morgan v. Hannas, 13 Abb. Pr. 6 Johns. 566 ; Matter of Kane, 2 Barb. (N. S.) 361. In determining the Ch. 375 ; Harring v. Coles, 2 Bradf. amount to be allowed, expenditures 349 ; Bruin v. Knott, 9 Jur. 979 ; made by the guardian, prior to his ap- Voessing v. Voessing, 4 Redf . 360 ; pointment, may be considered. ( Hovell Browne v. Bedford, 4 Dem. 304; Fur- v. Noll, 10 Misc. 546; 31 N. Y. Supp. man v. Van Sise, 56 N. Y. 435 ; 439. ) The Code -does not provide for Beardsley v. Hotchkiss, 96 id. 201; an application to the court for the Hyland v. Baxter, 98 id. 610.) payment of a debt already incurred 54 Matter of Miller, 34 Hun, 267 ; for the infant. (Welch v. Gallagher, Shepard v. Stebbins, 48 id. 247; 17 2 Dem. 40.) St. Rep. 900; Matter of Ogg, 1 Con- 56 Matter of Kerwin, 59 Hun, 589; noly, 10; Matter of Wright, id. 281. 37 St. Rep. 436. This case is not an See Matter of Haslehurst, 4 Misc. 366. authority, however, for the proposi- A general guardian of a stepdaughter tion that the surrogate has jurisdic- has a legal right to contract with the tion to order payment of a claim for stepfather for her support, and on services rendered by a third person in § 1030. Guardianship. 848 AETICLE SECOlv^D. ACCOUNTING OF GENERAL GUARDIANS. § 1030. Animal inventory — The supervision and control, which surrogates exercise over guardians to -whom they have issued let- ters, includes, besides the judicial settlement of the guardians' accounts, on the cessation of their office, another species of ac- counting, analogous to the intermediate accounting of executors, administrators, and testamentary trustees; though, unlike the latter, guardians' accounts are required to be rendered and exam- ined at stated periods, so long as they continue to act.^'^ "A general guardian of an infant's property, appointed by a Surrogate's Court, must, in the m'onth of January of each year, as long as any of the infant's property, or of the proceeds thereof, re- mains under his control, file in the Surrogate's Court the follow- ing papers: (1) An inventory, containing a full and true state- ment and description of each article or item of personal property of his ward, received by him, since his appointment, or since the filing of the last annual inventory, as the case requires; the value of each article or item so received; a list of the articles or items remaining in his hands; a statement of the manner in which he has disposed of each article or item not remaining in his hands; and a full description of the amount and nature of each invest- ment of money made by him. (2) A full and true account, in form of debtor and creditor, of all his receipts and disbursements of money, during the preceding year; in which he must charge himself with any balance remaining in his hands, when the last account was rendered, and must distinctly state the amount of the balance remaining in his hands, at the conclusion of the year, to be charged to him in the next year's account." ^* With the in- ventory and account so filed must be filed an affidavit, by the guardian, or by an agent or attorney, who is cognizant of the facts, stating, in substance, the facts, as required by the statute.'" earing for the ward's property where 58 Co. Civ. Proc, § 2842. The guard- the validity of the claim is disputed ian should file an inventory as soon by the guardian. (Matter of Stoehr, as his ward's property comes into his 23 N. Y. Supp.-281; s. c. as Hampton hands. He should also keep the ward's V. Stoehr, 51 St. Rep. 560.) money properly invested'; should keep 67 An infant ward may bring a suit the account in a separate book, and to call his guardian to account, or should take and keep receipts. (Mat- require him to give better security, if ter of Bushnell, 17 St. Rep. 813; 4 the state of the case should call for it. N. Y. Supp. 472.) (Monell V. Monell, 5 Johns. Ch. 283.) E9 Co. Civ. Proc, § 2843. " The sur- As to accounting of u. guardian ap- rogate must annex a copy of this and pointed by the Supreme Court, see the last section, to all letters of Matter of Muller, 2 L. Bui. 28. guardianship of the property of an 849 GuAEDiANSHip. §§ 1031, 1032. In providing for annual accounts, the statute does not contem- plate the settlement of these accounts. These annual accounts are intended to inform the ward and the court of the manner in which the guardian is discharging his trust. The ward or the court may act upon the information thus obtained to remove the guard- ian, or to obtain further security for the performance of his duties. But there is no provision of the statute for a judicial examination and settlement of the guardian's accounts, at the instance either of the ward or the guardian, while the guardian- ship still continues and is intended to continue.'*'' § 1031. Scrutiny of annual inventory ajid account. — The surro- gate is required, in the month of February of each year, and thereafter, until completed, to " examine or cause to be exam- ined, under his direction, all inventories and accounts of guard- ians filed since the first day of February of the preceding year." The examination may be made by the clerk, or by a person speci- ally appointed by the surrogate to make it, who must, before he enters upon the examination, subscribe and take, before the sur- rogate, and file with the clerk of the court, an oath faithfully to execute his duties, and to make a true report to the surrogate.*"* § 1032. Remedy, where account, etc., not filed or defective If it appears, upon such an examination, that the guardian has omit- ted to file his annual inventory or account, or the affidavit relating thereto; or if the surrogate is of the opinion that the interest of the ward requires that the guardian should render a more full or satisfactory inventory or account ; " the surrogate must make an order, requiring the guardian to supply the deficiency, and also, in his discretion, requiring the guardian personally to pay the expense of serving the order upon him. Where the guardian fails to comply with such an order, within three months after it is made; or where the surrogate has reason to believe that suffi- cient cause exists for the guardian's removal, the surrogate may, in his discretion, appoint a fit and proper person, special guardian of the ward, for the purpose of filing a petition in his behalf. infant issued from this court." (lb.) account for moneys of the infant in The above affidavit conforms to Wil- his hands. (Matter of O'Neil, 1 Tuck. Hams V. Purdy, 6 Paige, 166. 36.) See Matter of Holland Trust Co., 60 Diaper v. Anderson, 37 Barb. 76 Hun, 323; 27 N. Y. Supp. 687. 168; Matter of Hawley, 104 N. Y. 250. «l Co. Civ. Proc., § 2844. See id. See po&t, § 1033. A surrogate cannot as to appointing special examiner, compel an attorney of a guardian to 54 § 1033. GuAEDiANsnip. 850 for the removal of the guardian, and prosecuting the necessary proceedings for that purpose." ®^ § 1033. Judicial settlement of account The mere rendering of an account by a guardian is, obviously, not an adjudication of its correctness; and although the statute makes provision for an ex- amination of the annual inventory and account, and for the filing of additional ones, where those filed are not sufficiently full, or not satisfactory; yet the result of this proceeding is not a judicial determination which will bind the parties concerned. To make the accounting conclusive, there must be a citation or appearance for the purpose of having an adjudication upon its correctness. For this purpose the statute provides for a " judicial settlement " of the guardian's account.®^ A compulsory judicial settlement of the account of a general guardian of an infant's property may be had upon a petition in either of the following cases: (1) By the ward after he has attained his majority. (2) By the executor or administrator of a ward, who has died. (3) By the guardian's successor, including a guardian appointed after the reversal of a decree, appointing the person so required to account. (4) By a surety in the official bond of a guardian whose letters have been revoked; or by the legal representative of such surety. Citation under this subdivision must be directed to both the guardian and the ward.®* In case of the death of a guardian, the Surrogate's €2 Co. Civ. Proc, § 2845. The fol- guardian." (Rule XXI.) See Led- lowing rule is in force in New York with v. Union Trust Co., 2 Dem. 439. county: "The surrogate, on the writ- «3 Co. Civ. Proc, §§ 2847, 2849. The ten certificate of the person appointed accounts of a guardian, as guardian, under section 2844 of the Code, to ex- cannot be settled in proceedings insti- amine the inventory and accounts of luted for a settlement of his accounts guardians filed in said surrogate's as an administrator. (Banks v. Tay- office, that a general guardian has lor, 10 Abb. Pr. 199.) omitted to file such inventory or ac- e* The fourth was added by L. 1890, count, or the aflidavit required by sec- c. 62. Prior to this amendment, a tion 2843, or that the interest of the surety on a guardian's bond could not ward requires that the guardian compel an accounting by his principal should render a more satisfactory in- (Matter of Voelpel, 3 L. Bui. 79) ; ventory or account, will make an order nor could he move to open the decree requiring the guardian to supply the settling the guardian's account ( Smith deficiency; and where it shall appear, v. Lusk, 2 Dem. 595) ; nor move for by the certificate of said person, that relief on the ground of fraud on the the guardian has failed to comply part of the guardian in charging him- with such order within three months self with improper amounts, there after its due service upon him, or that being no allegation of collusion on the there is reason to believe that suffi- part of the ward. (Corbin v. West- cient cause exists for the guardian's cott, 2 Dem. 559.) A conservator or removal, the surrogate will appoint a committee of a lunatic minor, ap- special guardian of the ward for the pointed in another State, is not en- purpose of filing a petition in his be- titled to call a guardian of a minor half, and prosecuting the necessary in this State to account for, and pay proceedings for the removal of such over to him, the estate of the minor 85] GUAEDIANSIIIP. § 1034. Court has the same jurisdiction, upon the petition of his successor or of a surviving guardian or of a guardian's ward, to compel the executor or administrator of the deceased guardian to account, ■which it would have had against the decedent, on a revocation ;of his letters.®^ A compulsory proceeding for an accounting by the general guardian of an infant's person, may be instituted by the general guardian of the infant's property; but upon the presentation thereof, proof must be made, to the surrogate's satisfaction, that the guardian so required to account has received money or prop- erty of the ward, for which he has not accounted ; or which he. has not paid or delivered, to the general guardian of the infant's property.®^ For this purpose a guardian of the estate only, is deemed to be a general guardian. § 1034. Voluntary accounting and discharge of general guardian. — The guardian may himself petition for a judicial settlement of his account, and a discharge from his duties and liabilities, in any case where a petition for a judicial settlement of his account may be presented by any other person as prescribed above, that is, on the ward's dying, or attaining majority, or on the revoca- tion of his letters. " The petition must pray that the person who might have so presented a petition, and also the sureties in his official bond of such guardian, or the legal representatives of such surety, may be cited to attend the settlement." *'^ It is only on the happening of one of the events mentioned that a judicial settle- ment can be had. 'So court has jurisdiction, under the Code or other statute, to judicially settle a guardian's account, either on in his hands. The remedy is by ap- Supp. 600.) Where a trust fund has plication to the Supreme Court. ( Mat- been in the hands of a guardian for ter of Traznier, 2 Kedf. 171.) many years, and was unpaid and un- 85 Co. Civ. Proc, § 2606 ; ante, accounted for at the time of his death, § 921; Matter of Camp, 91 Hun, 204; there is no presumption that it is a 36 N. Y. Supp. 1123. The executor part of his estate in the hands of his or administrator of a deceased general executor, so as to entitle his ward to guardian may be required to account an order, under Co. Civ. Ffoc, § 2606, for the latter's administration, imme- compelling such executor to pay to the diately upon the appointment of the ward the amount due her from such executor or administrator. (Matter trust fund in preference to other of Wiley, 5.5 Hun, 248 ; 29 St. Rep. creditors, without evidence that de- 787.) See Andrade V. Cohen, 32 Hun, cedent's assets in the hands of his 225; Matter of Camp, 18 App. Div. executor are a part of, or created by, 110; 45 N. Y. Supp. 600. And the the trust fund. (Matter of Hicks, 170 successor may maintain an action N. Y. 195; revg. Hicks v. Townsend, upon the bond of his predecessor to 66 N. Y. Supp. 1028.) recover the amount found due upon 66 Co. Civ. Proc, § 2848. such accounting. (Van Zandt v. 87 Co. Civ. Proc, § 2849, as amended Grant, 67 App. Div. 70; 73 N. Y. 1893. §§ 1035, 1036. GuAEDiANSHip. 852 his own or another's application, while the guardianship con- tinues ; and an attempted settlement of the kind is void.®* § 1035. Procedure on judicial settlement — The manner of eon- ducting the proceedings, upon a judicial settlement of the account of a general guardian, is precisely the same as that prescribed under similar circumstances with respect to an executor or ad- ministrator. ®® Thus, upon the return of a citation issued against ihe guardian, unless he shows cause, or himself petitions for a settlement, he is to be ordered to account, and must attend from time to time for that purpose. He must produce vouchers for ex- penditures, except where an executor, etc., would be excused from so doing; and the surrogate may require him to make and file his account, and to submit to examination, and may allow him for property perished or lost without his fault. Where there are two or more wards^ a separate account should be filed for each.™ § 1036. limitation of proceeding. — As it is the duty of a guard- ian to invest the moneys of his ward, the fund, in contemplation of law, remains invested, and in a situation at any time to be de- livered over. After the ward comes of age, the guardian is to be considered the trustee of the ward, and until the trust is re- pudiated, or, in some way, the guardian claims a title to the fund in defiance of the trust, there is no beginning of the running of the Statute of Limitations. Hence, the fact that the petitioning ward came of age more than six years before filing the petition is no ground for refusing to grant a citation.^^ Aside from this, 68 Matter of Hawley, 104 N. Y. 250, St. Rep. 767. In Matter of Lewis and eases cited. (36 Misc. 741; 74 N. Y. Supp. 469), 69 Section 2727 and sections 2733 to the proceeding was held barred after 2738, both inclusive, and seotions 2741 the lapse ot ten years. In Matter of and 2744 of the Code [now §§ 2727, Barker (4 Misc. 40), it appeared that, 2729, 2730, and § 2744] ,"" apply to a after coming of age, a ward had a guardian accounting as prescribed in conversation wit^ her guardian con- this article, and regulate the proceed- cerning the latter's accounts, and the ings upon such an accountitig. The guardian stated that she had ex- aceoiunting party must annex to every pended the entire fund. The guardian account produced and filed by him had been guilty of no fraud or con- an affidavit, in the form prescribed in cealment; the accounts had always this article for the affidavit to be an- been open to the inspection of the nexed by him to his annual inventory ward, and it was proven that she was and account. A guardian designated in a measure familiar with their con- in this title is entitled to the same tents. Held, that there was a repu- compensation as an executor or ad- diation of the trust relation, and that ministrator." (Co. Civ. Proc, § 2850.) the Statute of Limitations began to TO Matter of Bostwick, N. Y. Law J., run against the ward from that time. Feb. 3, 1893. But query, whether the relation ex- Tl Matter of Camp, 50 Hun, 388 ; 21 isting between guardian and ward St. Rep. 308; and same case, in a sub- after the latter had attained majority sequent proceeding, 126 !N. Y. 377 ; 37 was not such a trust as not to be 853 Guardianship. § 1037. the practice in equity was to allow a ward one year's time to in- vestigate the guardian's accounts; on the ground that when he first comes of age he is still too much under the influence of the guardian to protect himself.''^ § 1037. Subject-matter of accounting — The surrogate's author- ity to compel a guardian to account is limited to an accoujit of his proceedings under the power given him by his letters ; and is commensurate, in fact, with acts or neglects of duty occurring during the period of his ofiicial authority, and cannot be extended back to previous transactions, e. g., to a claim for money received by him, before his appointment, from a foreign guardian of the ward, with directions to appropriate it to his benefit, but which remained in his Jiands at the time of his appointment.'^^ ISTeither can the guardian be allowed for services rendered for the ward before he was appointed guardian ; and a promise of the ward to pay for them, made after he became of age, does not make them proper matters of charge on such accounting.''* But, under the statute, the surrogate is authorized to ascertain the quantity, quality, and condition of the ward's property in the hands of the guardian, and to decree and adjudse the time when, the persons to whom, and in what manner it shall be paid or delivered over.'^^ Interest is chargeable in the accounts of a guardian, upon affected by the Statute of Limitations, in the account. (Matter of Kopp, 17 nor any bar, by analogy, to the statute. St. Eep. 832.) See Matter of Van Derzee, 73 Hun, T5 Seaman v. Duryea, 10 Barb. 523; 532; 26 N. Y. Supp. 121. A ward affd., 11 N. Y. 324. But a Surrogate's may, by conduct af*- r reaching ma- Court has no power to direct a gen- jority, ratify an illegal investment, eral guardian to pay over to the ward (Matter of Klunck, 33 Misc. 267; 68 a sum, to the possession of which, the N. Y. Supp. 629.) guardian is personally entitled, as life 72 Matter of Van Home, 7 Paige, tenant, the interest of the ward being 46; Douglas v. Low, 36 Hun, 497. merely that of remainderman; and The last case was an action to set the fact that the guardian has lost aside, for fraud, the surrogate's de- the money will not confer jurisdiction cree on the guardian's accounting; the to make such direction. (Matter of fraud alleged being that the plaintiff. Camp, 126 N. Y. 377; 37 St. Eep. 767.) the ward, was induced to authorize an Without the guardian's consent, the attorney to appear for him and con- surrogate has not jurisdiction to de- sent to a discharge, and that there duct the gross value of his life in- was false and fraudulent evidence terest and to direct the payment pf given. The complaint was held good, the balance. (lb.) As to allowance on demurrer. for payments for legal services for the 73 Rait V. Rait, 1 Bradf. 345. See estate, see Rait v. Rait, 1 Bradf. 345 ; Matter of Plumb, 24 Misc. 249; 53 Matter of Decker, 37 Misc. 527; 76 N. Y. Supp. 588; Matter of Mulligan, N. Y. Supp. 315; for proceedings to Misc. 546; 27 N. Y. Supp. 435. obtain possession of the ward, Matter 74 Clowes V. Van Antwerp, 4 Barb, of Grant, 56 App. Div. 176; 67 N. Y. 416. Taxes paid on ward's property, Supp. 654; affd., 166 N. Y. 640; Mat- without his knowledge, after he be- ter of Pruyne, 68 Anp. Div. 584; 73 came of age are not to be included N. Y. Supp. 859; and for the support § 1038. GuAEDiANSiiiP. 854 the same principles that have heretofore been explained in re- spect to the accounts of executors and administrators, except that he is not entitled . to the same exemption for considerable sums kept in hand, on account of the exigencies peculiar to the settle- ment of an estate which is subject to large debts and claims. The court has power to allow to a guardian necessary expenditures made for the support of the infant even before the guardian was appointed, especially where he, being the parent, was unable to support the ward himself.''® § 1038. Expenses and compensation — The Eevised Statutes pro- vided that guardians should be allowed for their reasonable ex- penses, and the, same rate of compensation for their services as provided by law for executors ;^^ and this was construed as re- ferring, not to the old rate of compensation fixed by the original Revised Statutes, but to the rate of commissions allowed to executors and administrators by subsequent amendments of the law.^^ The section of the Revised Statutes cited was repealed in and education of the ward by the gate had no jurisdiction to try the parent's labor, see Harring v. Coles, question of the validity of the settle- 2 Bradf . 349 ; Matter of Kane, 2 Barb, ment, and that upon the question of Ch. 375; Matter of Parker, 1 id. 154. the acceptance of the mortgage by the And see also Matter of Wilber, 27 Misc. ward, in satisfaction of the amount 53; 57 N. Y. Supp. 942; Matter of due him, the receipt was conclusive, Klunck, 33 Misc. 267 ; 68 N. Y. Supp. and could not be contradicted by parol 629. The guardian's giving the ward evidence. (Downing v. Smith, 4 Redf. an opportunity to examine his books, 310.) See also Matter of Gill, 3 Hun, and informing her from time to time, 20. In Matter of Pruyne (68 App. after she came of age, of the balance, is Div. 584; 73 N. Y. Supp. 859), a re- not a settlement of the accounts, siduary legatee, who was guardian of (Rapalje v. Hall, Sandf. Ch. 399.) testator's infant child, was directed One who was substituted as guardian, to establish a trust fund in favor of on removal of another, gave a receipt such child, which was never done, the to the surrogate, admitting that, as personal estate being insufficient. The guardian of the minor, he had re- guardian remained in possession of ceived from the surrogate a certain sum the realty as residuary 'legatee, and of money, — Held, that it was eompe- regarded the trust fund as invested tent for him, on his accounting, to therein. Held not entitled to credit prove that the receipt was given for in his account for taxes paid on the certain contracts for the purchase of trust fund as guardian, lands, which were. In fact, worth less 76 Matter of Wright, 1 Connoly, 281 ; than the sum specified in the receipt. 22 St. Rep. 83; 4 N. Y. Supp. 343, (White V. Parker, 8 Barb. 48.) Where and eases cited. See also Matter of the guardian, after the ward attained Ogg, 1 Connoly, 10 ; 20 St. Rep. 867 ; his majority, had a settlement with Matter of Bushnell, 17 Id. 813; Welch him, and assigned a mortgage to the v. Gallagher, 2 Dem. 40. ward for the amount found due, and 77 2 R. S. 153, § 22; Matter of Car- the ward gave a receipt that he had man, 21 St. Rep. 254; 4 N. Y. Supp. received the assignment of the mort- 690. gage "as equivalent" to the amount 78 Foley v. Eagan, 13 Abb. Pr. (N. found due, — Held, that, upon the ao- S.) 361, n. And see Dakin v. Dem- counting of the guardian, the surro- mlng, 6 Paige, 95. 855 GuAEDiANSHip. §§ 1039, 1040. 1880 f^ but by the amendment of section 2850 of the Code, in 1882, it was declared that a general guardian is entitled to the same compensation as an executor or administrator.*" § 1039. Extra services — A guardian will not be allowed, any more than an administrator, an extra compensation for services, although not strictly within the line of his duties. Thus, where the guardian is an attorney and counselor-at-law, he cannot charge for professional services rendered in the affairs of his ward, or where he is a mechanic, he cannot charge for repairs made by him, but is restricted to the statutory allowance. J^either an order of a surrogate, before the services are rendered, directing the performance thereof, and fixing the extra compensation, nor an order ratifying and allowing it, will legalize the charge.®-' § 1040. Computation of commissions. — The amount of commis- sions can only be determined upon the judicial settlement of the guardian's accounts, and this can be had, as we have seen, only when the ward becomes of age, or the guardianship is otherwise terminated, and a new guardian is appointed, or the ward dies.*^ 79 L. 1880, c. 245. accounts. (Hawley v. Singer, 3 Dem. 80 In a ease where an executor would 589.) While a Surrogate's Court has be refused commissions, — e. g., malad- no power to open and reconsider, on ministration — a general guardian will the ground of legal error, an adjudi- be denied compensation. {Matter of cation already made, still, where full Kopp, 17, St. Rep. 832.) S. P., Mat- commissions have been inadvertently ter of Bushnell, id. 813. In an action awarded on a fund as received and for a settlement of a guardian's ac- paid out, when in truth it had been counts in the Supreme Court, an al- received and not paid out, such a lowance of $250 as and for the ex- tribunal may, in a subsequent account- penses of the accounting were allowed, ing, take cognizance of the fact, and (Matter of Carman, supra.) Such ex- decline to award half commissions penses are not in the nature of costs again for paying out. (lb.) As to and allowance in an action at law. whether a testamentary guardian, (lb.) Where, however, objections to who is also executor, is entitled to the accounts are justified, the estate charge double commissions upon the of the ward should not be charged principal of the ward's estate, see Mat- with the expenses of the proceeding ter of Hawley, 104 N. Y. 250. It (Matter of Frank, 1 App. Div. 39; seems, however, that if such double s. c. as Matter of Schneider, 36 N. Y. commissions are allowable, they may Supp. 972) ; but, on the contrary, the be charged upon the value of property guardian is chargeable with costs, which the testator directed not to be (Matter of Decker, 37 Misc. 527; 76 sold, but to be divided by the execu- N. Y. Supp. 315.) tors and given to the legatees. (lb.) 81 Morgan v. Hannas, 49 N. Y. 667. On a rehearing before the surrogate See § 556, ante. by direction of the Court of Appeals, 82 Matter of Hawley, 104 N. Y. 250. the claim to commissions on the stock A guardian is entitled to commissions was allowed. (Hawley v. Singer, 5 on amounts received by him after the Dem. 82.) The surrogate also held ward has arrived at full age and be- that where commissions have been al- come entitled to the possession of the lowed a guardian by the surrogate, in fund, until his duties are terminated proceedings in which the guardian has by a final judicial settlement of his acted in complete good faith, but, as § 1041. Guardianship. 856 As in the case of executors and administrators, the commission is computed on money received and paid out. Where the guard- ian has received money, but has not paid it out otherwise than by turning it over to his successor, or has paid out money which he did not receive, except by succeeding to the trust turned over to him by a predecessor, he is only allowed half commissions, upon the same principle which has been explained in a previous chapter on accounting by executors and administrators. In other words, he is to be paid a full commission only on moneys which he has actually both received and paid out, not upon portions of the fund which may have come into his hands in the form of an invest- ment previously made by a predecessor, or which he turns over, as a part of the trust fund, to his successor in the trust. ®^ But where a temporary guardian is not removed, or does not volun- tarily resign, but his retiring from office is at the instance of the ward, after her reaching fourteen years of age, who petitions for the appointment of a successor, he is entitled to full commissions upon the entire principal of the fund handed over to his successor.** § 1041. Commissions on annual statement. — As the guardian is required by law to render annual accounts, he may be allowed full commissions on each annual account rendered by him ; and, at his final accounting, he may be allowed interest on the balances due him on his annual accounts.*^ But, on accounting periodically, he should be allowed, upon the first annual statement, or passing of his accounts, one-half commissions upon all moneys received by him, other than principal received from investments made by him, and half commissions on all moneys paid out by him, other than moneys invested or reinvested by him in securities, leaving the residue of his half commissions to be computed tipon the fund which has come to his hands, and which remains invested or un- expended at the time of the accounting, for future adjustment when expended, or when finally accounted for ; and, upon subse- quent statements, half commissions should be computed in the same manner, upon all sums received as interest or income, or as further additions to the capital of the estate, since the last ac- is subsequently ascertained, wrong- 85 Morgan v. Hannas, 49 N. Y. 667 ; fully and under a void accounting, the s. e. more fully, 13 Abb. Pr. (N. S. ) court will not, upon subsequently al- 361 ; revg., in effect, 39 Barb. 20. lowing such guardian his proper com- S. P., Matter of Bell, N. Y. Law J., missions, charge him with interest Feb. 16, 1893. Compare Matter of upon the sums previously allowed. Decker, 37 Misc. 527 ; 76 N. Y. Supp. 83 Foley V. Egan, 13 Abb. Pr. (N. 315. As to annual rests in trustees'' S.) 361, note. accounts, see ante, § 1001. 84 Phillips V. Lockwood, 4 Dem. 299. 857 GuAEDiANSHii-. §§ 1042-1044:. counting, and half commissions upon all sums expended except as investments.*® ARTICLE THIRD. § 1042. Petition of guardian. — A guardian, whether appointed by will or deed, or solely by letters issued by a Surrogate's Court, may, at any time, present to the Surrogate's Court a petition, set- ting forth the facts upon which the application is founded, and praying that his account may be judicially settled ; that a decree may thereupon be made, revoking his letters, and discharging him accordingly ; and that the ward may be cited to show cause why such a decree should not be made. The surrogate may, in his dis- cretion, entertain or decline to entertain the application.*'' If he entertains it, he must issue a citation, as prayed for in the pe- tition ; and he may also require notice of the application to be given to such other persons, and in such a manner as he deems proper.** § 1043. Proceedings on retura of citation " Upon the return of the citation, a guardian ad litem for the ward must be ap- pointed ; and the surrogate may also, in his discretion, allow any person to appear and contest the application, in the interest of the ward. Upon the hearing, the surrogate must first determine whether sufficient reasons exist for granting the prayer of the pe- tition. If he determines that they exist, and that the interests of the ward will not be prejudiced by the resignation of the guard- ian, the surrogate must make an order accordingly, and allow- ing the petitioner to account, for the purpose of being dis- charged." *^ § 1044. Decree for discharge, on accounting, etc Upon the guardian's fully accounting, and paying all money which is found to be due from him to the ward, and delivering all books, papers, and other property of the ward in his hands, either into the Sur- rogate's Court, or in such a manner as the surrogate directs, a decree may be made, revoking the petitioner's letters, and discharg- 86 Matter of Kellogg, 7 Paige, 265. 87 Co. Civ. Proc, §§ 2835, 2859. See Matter of Decker, supra. The In case of a guardian appointed by guardian's omission to claim commis- will or deed, the application must be sions is no reason why he should be made to " the Surrogate's Court, hav- deprived of them, when a strict legal ing jurisdiction to require security claim, e. g., for interest, is made from him." (Co. Civ. Proc, § 2859.) against him, which he did not, at the See id., § 2853. time of such omission, expect would 88 Co. Civ. Proc, § 2836. be made. (Eapalje v. Hall, 1 Sandf. 89 Co. Civ. Proc, § 2836. Ch. 399.) § 1045. GUAEDIANSHIP. 858 ing him accordingly.^ Notwithstanding such discharge of a guardian, his successor or the ward may compel a judicial settle- ment of his account, as heretofore mentioned,®^ " in the same man- ner and with like effect, as if the decree discharging him had not been made. With respect to all matters connected with his trust, his sureties continue to be liable, until his account is judicially settled accordingly." ^^ This proceeding by the retiring guard- ian to settle his account is tentative only and the decree entered therein should merely declare the balance due, without any direc- tion as to its payment. His successor or ward may compel an- other judicial settlement of his account as though no decree had been made.®^ § 1045. Grounds for removing guardian The following are specified in the Code,®* as causes for removal of a general guard- ian, by the surrogate : " 1. Where the guardian is disqualified by law, or is, for any reason, incompetent*® to fulfill his trust. 2. Where, by reason of his having wasted or improperly applied the money or other property in his charge, or invested money in securities unauthorized by law, or otherwise improvidently man- aged or injured the real or personal property of the ward, or by reason of other misconduct in the execution of his office, or his dishonesty, drunkenness,'*' improvidence, or want of understand- so Co. Civ. Proc, § 2836. The de- 94 Co. Civ. Proc, § 2832. cree is conclusive. (Matter of Hood, 95 It was held, in Damarell v. 90 N. Y. 512.) As to advances to the Walker (2 Redf. 198), that the "in- ward, in excess of income, see Smith competency," for which a surrogate V. Bixby, 5 Redf. 196; Kelaher v. Mc- may remove a guardian, has relation Cahill, 26 Hun, 148. not merely to the mental condition 91 See § 1033, ante. Formerly, the and moral status of the guardian, but personal representatives of a deceased the court might take into considera- guardian oould not be called upon to tion the relative social and pecuniary account by the Surrogate's Court on position of the guardian and the in- petition of the ward. (Farnsworth v. fant, as affecting the interests of the Oliphant, 19 Barb. 30.) latter in respect of nurture, care, edu- 92 Co. Civ. Proc, § 2837. As to cation, and safety. Insolvency is a personal liability of a guardian for cause of removal. (Matter of Cooper, the costs of an aeoounting, see Crom- 2 Paige, 34.) In respect to what con- well V. Kirk, 1 Dem. 599; Matter of stitutes incompetency, consult also Frank, 1 App. Div. 39; Matter of the rules applicable to executors Decker, 37 Misc. 527; 76 N. Y. Supp. and administrators. {Ante, § 429, 315. et seq.) 93 Matter of Wright, 2 Connoly, 96 Matter of Moore, 18 Week. Dig. 108; 20 N. Y. Supp. 86. Where it 42. A guardian who has become so appears that the desire for the sub- intemperate as to be occasionally in- stitution of another guardian is mu- sane should be removed, and his wife, tual, and that the interests of the being subject to his control, is an ward will be promoted by so doing, equally improper person to manage the court will apportion the costs of the . estate. (Kettletas v. Gardner, 1 proceedings tol that eflfect between the Paige, 488.) guardian and ward. (lb.) 859 GuAEDiANSHip. § 1046: ing, he is tinfit for the due execution of his office.^^ 3. Where he has willfully refused, or, without good cause, neglected, to obey any lawful direction of the surrogate, contained in a decree or an order, or any provision of law, relating to the discharge of his duty. 4. Where the grant of letters to him was obtained by a false suggestion of a material fact.^^ 5. Where he has removed, or is about to remove, from the State. 6. In the ease of the guard- ian of the person, where the infant's welfare will be promoted by the appointment of another guardian." ®^ The surrogate will not revoke letters of guardianship unless one of these grounds is shown, even though it would seem to be for the best interests of the infant to do so.-' Hence, a neglect to file an annual inventory, unless in disobedience of an order requiring it, is not ground for removing the guardian.^ § 1046, Application for removal, how and by whom made " The ward, or any relative or other person in his behalf, or the surety of a guardian, may, at any time, present to the Surrogate's Court a written petition, duly verified, setting forth the facts, and pray- ing for a decree, revoking letters of guardianship, either of the person, or of the property, or both; and that the guardian com- 97 Where a guardian of an infant relative of the infant is willing to wife sold property to tne infant's hus- make the application. Aa to whether band and took back a mortgage from a suppression of facts is equivalent the two, the court canceled the security to " a false suggestion of a material and removed the guardian. (Matter fact," under subdivision 4 of that sec- of Cooper, 2 Paige, 34.) See also tion, guwre. (Boiling v. Coughlin, 5 Matter of O'Neill, 1 Tuck. 34. Redf. 116.) See mte, § 433. 98 To justify a revocation of letters 99 The expressed preference of the of administration or of general guard- wards for a particular person {e. g., ianship, upon the ground that the a maternal aunt), and the likelihood same were " obtained by false sugges- that a lack of harmony would ensue tion of a, material fact" (under Co. from a. contest between themselves and Civ. Proc, § 2685, subd. 4; § 2832, the present guardian of their persons, subd. 4), it must be made to appear if justifying a belief that the welfare that the suggestion was made to the of the infants requires it, warrant a tribunal by which the letters were substitution of guardians. (Matter granted. It is not enough to show of Byrnes, N. Y. Law J., Oct. 25, false representations to a party to 1890.) the proceeding for the purpose of in- 1 Corn v. Corn, supra. A testa- ducing his consent to the granting of mentary guardian cannot be removed such letters. (Corn v. Corn, 4 Dem. on the ground that a member of his 394; s. c. as Estate of Corn, 3 How. family nas an evil influence upon the Pr. [N. S.] 357; 9 Civ. Proc. Rep. ward; for the statute only prescribes 243. ) See O'Brien v. Neubert, 3 Dem. removal in case ot misconduct in the 156; Proctor v. \/anmaker, 1 Barb, execution of the trust rendering the Ch. 302. The words "in his behalf," guardian unfit. (Mackay v. Fuller- in this section, refer to "the ward," ton, 4 Dem. 153; s. c. as Matter of and not to " any relative ; '' the inten- King, 2 How. Pr. [N. S.] 307.) tion of the section being to enable any 2 Ledwith v. Union Trust Co., 8 Dem. person to apply for a revocation of 439. letters of guardianship, as where no ■§§ 1047-104a GuAEDiA]!TSHn\ 860 plained of may be cited to show cause why such a decree should not be made." ^ Upon the presentation of the petition, " the sur- rogate must inquire into the matter; and, for that purpose, he may issue a subpoena to any person, requiring him to attend and testify in the premises. If the surrogate is satisfied that there is probable cause to believe that the allegations of the petition are true, he must issue a citation to the guardian complained of." * § 1047. Temporary suspension of guardian. — Upon issuing the citation, " the surrogate may, in his discretion, make an order suspending the guardian, wholly or partly, from the exercise of his powers and authority, during the pendency of the special pro- ceeding. A certified copy of an order so made must accompany the citation, and be served therewith; but, from the time when it is made, the order is binding upon the guardian and upon all other persons, without service thereof, subject to the exceptions and limitations prescribed in " the Code,^ with respect to a de- cree revoking letters.® § 1048. Proceedings on return of citation. — Upon the return of the citation, if the material allegations of the petition are estab- lished, the surrogate is required to make a decree revoking the guardian's letters accordingly; except that where the basis of the application for removal is the guardian's alleged refusal or neg- lect to obey a direction as to his duty, or the fact that letters have been obtained by false suggestion, the surrogate must dismiss the proceedings, under the like circumstances and upon the like terms, as prescribed in sections 2686, 2687, of the Code, where a similar complaint is made against an executor or administrator.^ A mere allegation in the petition of conclusions of fact, though it may be sufficient to give the surrogate jurisdiction to issue the citation, is not enough to justify judicial action, and the petition should be dismissed, unless the guardian appears and answers without objection.* § 1049. Becree revoking letters — The revocation of letters is effected by a decree of the Surrogate's Court, to that effect. It 3 Co. Civ. Proc, § 2832. the same time to pay a gross sum to 4 Co. Civ. Proc, § 2833. The ex- the infant, to be disbursed by him. tent of the inquiry is entirely dis- (Matter of Plumb, 52 Hun, 119.) cretionary with him. (Matter of 7 Co. Civ. Proc, § 2833. Plumb, 21 St. Rep. 107.) 8 Matter of Plumb, 21 St. Rep. 107. 5In §§ 2603, 2604. See § 448, ante. In that ease, no objection being made 6 Co. Civ. Proc, § 2834. And see to the form of the petition, — Held, id., § 2481, subd. 4; ante, § 52. A that the objection was waived, and an surrogate has no power to suspend a order of reference was afRrmed. general guardian, and direct him at 861 GUAEDIANSHU'. § 1050. will follow, of course, where a guardian is removed for any of the causes previously mentioned in this chapter; so, where he fails to renew his official bond,® or where he resigns and is discharged. Upon the entry of the decree of revocation, the guardian's powers cease ; and the surrogate may, thereby, direct him to account, and pay and deliver over money or property of the estate ; but previous acts, in good faith, are protected.^" The surrogate may, thereupon, appoint a successor, " as if the letters had not been issxied," and the powers of such successor, as to compelling accounting, etc., are pre- scribed.-'^ The guardian's powers are, of course, revoked by his death ; and the surrogate has, thereupon, the same jurisdiction, on the petition of his successor, or of a surviving guardian, or of the ward, etc., to compel the decedent's representative to account for and deliver over the trust property, which is in his possession or under his control, which he would have, as against the decedent, if his letters had been expressly revoked.-'^ An appeal from a decree revoking the letters does not stay its execution, and the same rule applies where the decree removes or suspends a guardian.'^ TITLE SECOND. POEEION' GTJAEDIANS AND ANCILLARY LETTERS. § 1050. Foreign guardianship — The appointment of a guardian for the person or the property of an infant is an act of jurisdic- tion dependent upon the situation of the person or the property within the territory of the State, not upon the fact of citizenship." In the absence of any statutory sanction to foreign guardianships, money due to an infant cannot be legally collected by a guardian, judicially appointed in another State from that where the col- lection or payment is to be made.''^ Thus, a guardian appointed out of the State is not entitled to receive, from executors or ad- 9 Co. Civ. Proc, §§ 2599, 2601; reeted by the surrogate, in the exercise § 462, ante. of the authority conferred by Co. Civ. 10 Co. Civ. Proc, §§ 2603; Phillipa Proc, § 2606, to pay the fund into V. Liebmann, 10 App. Div. 128; 41 court, as permitted under section 2603, N. Y. Supp. 1020. and not to pay it over to the ward 11 Co. Civ. Proc, § 2605. In Peo- without providing for the payment of pie V. Wamsley (15 Abb. Pr. 323), claims. (Matter of Hioks, 54 App. it was held, that the surrogate might Div. 582; 66 N. Y. Supp. 1028.) appoint the successor without regard 13 Co. Civ. Proc, § 2583. to whether the ward resided, at the l4McLoskey v. Reid, 4 Bradf. 334. time, in the surrogate's county. See Matter of Hosford, 2 Redf. 168. 12 Co. Civ. Proc, § 2606. See ante, 15 McLoskey v. Reid, supra. And §§ 923a, 1044. Upon the coming of see Trimble v. Dzieduzyiki, 57 How. age of a ward whose general guardian Pr. 208. has died, his executor should be di- §§ 1051, 1052. GuAEDiANSHip. 862 ministrators here, the portion of the infant/^ or to be recognized by the courts of this State." § 1061. Petition for ancillary letters, where infant resides in the United States — The Code,^* however, provides that " where an in- fant, who resides without the State and within the United States, is entitled to property within the State, or to maintain an action in any court thereof, a general guardian of his property, who has been appointed by a court of competent jurisdiction, within the State or Territory where the ward resides,^* and has there given security, in at least twice the value of the personal prop- erty, and of the rents and profits of the real property, of the ward, may present, to the Surrogate's Court having jurisdiction, a writ- ten petition, duly verified,^" setting forth the facts, and praying for ancillary letters of guardianship accordingly. The petition must be accompanied with exemplified copies of the records and other papers, showing that he has been so appointed, and has given the security required " as above ; which must be authenticated in the mode prescribed in the Code,^-' for the authentication of rec- ords and papers, upon an application for ancillary letters testa- mentary, or ancillary letters of administration. § 1052. Same ; where infant resides in foreign country Where an infant resides within a foreign country, and is entitled to per- is Morrell v. Diekey, 1 Johns. Ch. to the surrogate for an lOrder directing 153 ; Williams v. Storrs, 6 id. 353 ; the city chamberlain to pay to him McLoskey v. Reid, supra. Where the money, deposited to the credit of the English Court of Chancery, when re- infanis pursuant to a, decree of the fusing to award the custody of the surrogate. Held, the payment would minor to the American guardian, de- not be ordered until original or an- ereed that the guardian should trans- ciliary letters were obtained here, mit tne income of the minor's prop^ 18 Co. Civ. Proc, § 2838. erty to England, to be disposed of 19 Where a nonresident father, hav- under the direction of that court, the ing taken out letters of guardianship surrogate refused permission to the in another State, of -i infant residing guardian to transmit the funds in this State, petitioned for ancillary abroad. (Matter of Dawson, 3 Bradf. letters of guardianship here, the ap- 130.) And, in Matter of Bi^lley (1 plication was denied on the ground Tuck. 422 ) , the surrogate declined to that the original letters were not order payment of a legacy to a for- granted within the S'tate where the eign guardian, though the will pro- ward resided. (Griffin v. Sarsfield, 2 vided that money or property which Dem. 4.) might, under it, become vested in a 20 A petition verified by an attorney minor, might be delivered to any for- of the foreign guardian, where there eign guardian, — a guardian h ving is no proof of the power of the at- been appointed for the infant legatee torney to act, other than his own dec- in this State. laration, is not sutticient. (Matter of 17 West V. Gunther, 3 Dem. 386. In Whittemore, 1 Connoly, 155; 9 N. Y. Matter of Hanneman (N. Y. Law J., Supp. 296.) April 11, 1890), the attorney in fact 21 In § 2704, as amended 1897. of a foreign general guardian applied 863 GuAEDiANSHip. §§ 1053, 1054. sonal property within this State, or to maintain an action or a special proceeding here respecting such property, a general guard- ian of his property, authorized to act as such within the foreign country where the ward resides, may apply to the Surrogate's Court of the county where such personal property or any part thereof is situated, for ancillary letters of guardianship on the personal estate of the infant. The person so authorized must present a verified petition, setting forth the facts, and accompany it with the exemplified copies of the records and other papers showing his appointment f^ or, where he has not been appointed by any court, with other proof of his authority to act as such guardian, in the foreign country, and also with proof that, pur- suant to the laws of that country, he is entitled to the possession of the ward's personal estate. § 1053. Decree granting letters — Where the surrogate is satis- fied, upon the papers presented, that the case is within the stat- ute, " and that it will be for the ward's interest that ancillary letters of guardianship should be issued to the petitioner, he may make a decree admitting the exemplified copies of the foreign letters to be recorded, and granting ancillary letters accordingly. Such a decree may be made without a citation ; or the surrogate may cite such persons as he thinks proper, to show cause why the prayer of the petition should not be granted. But before the an- cillary letters are issued; the surrogate must inquire whether any debts are due from the ward's estate to residents of the State ; and, if so, he must require payment thereof." ^ § 1054. Security by ancillary guardian. — Where the foreign guardian appointed within the United States has given, in the foreign jurisdiction, " security^* in at least twice the value of the personal property, and of the rents and profits of the real prop- erty of the ward," ancillary letters are issued to him here without security and without oath of ofiice. But in the case of a guardian 22 Co. Civ. Proc, § 2838, as amended tificate, under the principal seal of 1897. (L. 1897, c. 492.) "Exempli- the department of foreign aflfaira, or fied copies of the records, * * » the department of justice of such must be authenticated by thf seal of country, attested by the signature or the court, or officer, by which or by seal of a United States consul." (lb.) whom such foreign guardian was ap- 23 Co. Civ. Proc § 2839. pointed, or the officer having the 24 In Matter of Fitch ( 3 Redf . 457 ) , custody of the seal or of the record the foreign guardian had entered into thereof, and the signature of a judge a mere covenant, with sureties, not of such court, or the signature of under seal, for the faithful perform- sueh officer and of ine clerk of such ance of his trust. Held, insufficient, court or officer, if any; and must See Matter of Cordova, 4 Redf. 66. be further authenticated by the cer- §§ 1055, 1056. GuAKDiABTSHip. 864 appointed in a foreignr country, giving of security is not a condi- tion precedent to a grant of ancillary letters.^^ § 1055. Powers of ancillary guardian of property Ancillary letters authorize the person to whom they are issued to demand and receive the personal property, and the rents and profits of the real property, of the ward ; to dispose of them in like manner as a domestic guardian of "the property ; " to remove them from the State; and to maintain or defend any action or special proceed- ing in the ward's behalf." If the letters are issued on the petition of a guardian appointed in a foreign country, they authorize the person appointed, " to demand and receive the personal estate of the ward, and to dispose of it in like manner as a guardian of property appointed [as above], and to maintain or defend any action," etc. But in neither case do such letters authorize him " to receive, from a resident guardian, executor, or administrator, or from a testamentary trustee, subject to the jurisdiction of a Surrogate's Court, money or other property belonging to the ward, in a case where letters have been issued to a guardian of the in- fant's property, from a Surrogate's Court of a county within the StatCj upon an allegation that the infant was a resident of that county; except by the special direction, made upon good cause shown, of the Surrogate's Court from which the principal letters were issued; or unless the principal letters have been duly re- voked." 2" § 1056. Foreign guardianship of the person. — The extent to which the court will recognize the authority of a judicially ap- pointed foreign guardian over the person of the ward, when brought within our jurisdiction, is a matter within the discretion of the court, to be exercised in view of the circumstances of the case, and with due regard both to the doctrines of comity and the interests of the infant on our soil.^^ 25 Co. Civ. Proe., § 2840. See Mat- guaraian of a nonresident infant, with ter of Hunt, 24 Oiv. Proc. Uep. 239 ; a view to the removal of the latter's 68 St. Pep. 828. property from the State, except upon 29 Co. Civ. Proc, § 2840. This sec- the application of such foreign guard- tion applies to letters issued before ian himself, and vmless it appears that September 1, 1880, "by a Surrogate's the removal of the ward's property Court of the State, to a guardian ap- out of this State will not conflict with pointed by a court of another State, the ward's ownership, or a Territory of the United States, 27 Compare Nugent v. Vetzera, L. P., upon a presentation of an exemplified 2 Eq. 704 ; McLoskey v. Reid, 4 Bradf . transcript of the record of his ap- 334; Matter of Biolley, 1 Tuck. 422; pointment." (Co. Civ. Proc, § 2841.) Townsend v. Kendall, 4 Minn. 412; It was said, in the Matter of Fitch (3 Johnstone v. Beattie, 10 Clark & F. Redf. 457), that letters of guardian- 114. ship will not be issued to a foreign 865 Guardianship. §§ 1057, 1058. § 1057. Revocation of ancillary letters. — Althougli the Code does not expressly authorize the revocation of ancillary letters, yet such power exists, and will be exercised when facts are subse- quently presented showing that the ward's interests will be put in jeopardy by permitting their continuance, and this, although the principal letters have not been revoked. In determining the pro- priety of investments by a foreign guardian, for the purpose of an application for such revocation, the laws of this State, and the rules established by our courts, affecting the control and manage- ment of trust funds, must govern, and not those of the State of the guardian's residence.^' TITLE THIED. GUAEDIANS BY WILL OE DEED. § 1058. Appointment by, and for, whom The power of a par- ent to appoint, by deed or will, a guardian of his infant children does not exist in the absence of a statute conferring it; and the Legislature may define, limit, and regulate the authority of guard- ians, and may prescribe the conditions under which it shall be exercised. The statutes of this State, in reference to testamen- tary guardians, relate exclusively to domiciliary guardianship un- der wills or deeds of residents of this jurisdiction.^® The statu- tory provision authorizing the father of a minor unmarried child to appoint, by deed or last will, a guardian for its custody and tuition during minority or for any less time, and authorizing the mother to make stich appointment, in like manner, in case of the failure of the father to do so, and of his death,^* was radically changed by the Legislature of 1893, by which^* a married woman was constituted and declared to be the joint guardian of her children with her husband, with equal powers, rights, and duties in regard 28 Johnson v. Johnson, 4 Dem. 93. under the Revised Statutes. (Thom- 29Wuesthoff V. Germania Life Ins. son v. Thomson, 55 How. Pr. 494; Co., 107 N. Y. 580. ' Fitzgerald v. Fitzgerald, 24 Hun, 30 2 R. S. 150, § 1, as amended L. 370.) For cases under the former 1871, c. 32; L. 1888, c. 454. The sec- statute, see Ruppert's Estate, 1 Tuck, tion of the act (L. 1862, u. 172, § 6) 480; People v. Boice, 39 Barb. 307; which declared that no man should People v. Wamsley, 15 Abb. Pr. 323. create a testamentary guardian for his For the common-law rule, see Fuller- child unless the mother, if living, ton v. Jackson, 5 Johns. Ch. 278 ; should signify her consent thereto in Hoyt v. Hilton, 2 Edw. 202. writing, was repealed by L. 1871, 31 L. 1893, c. 175. In 1896, this act c. 32. It was intended to dispense was repealed and its provisions car- with the consent of the mother, and ried into the Domestic Relations Law to reinstate the father in his unquali- (L. 1896, e. 272, § 51). fied right to appoint, as it existed 55 § 1059. Guardianship. 866 to them with the husband. Upon the death of either father or mother, the surviving parent, whether of full age or a minor, of a child likely to be born, or of any living child, under the age of twenty-one years and unmarried, was authorized by deed or last will, duly executed, to dispose of the custody and tuition of such child during its minority, or for any less time, to any per- son or persons. Formerly, a married woman could not appoint a guardian of her child, the issue of her marriage with her living husband ;^^ and the fact that the marriage had been dissolved by a decree of divorce made no difference.^^ But now the right of adoption is a joint right; neither parent has the exclusive right of appointment while the other is living,^* even with the consent of the latter.^® The " child " may, it seems, include an adopted child,** but a testator cannot appoint a guardian of another per- son's child, e. g., his grandchild, as such.*^ § 1059. Powers and duty of guardian — Where there are no words indicating the duration of the guardianship, it is to be in- ferred it was intended to create a guardianship for the whole period of the child's minority.*^ The power of appointment is not confined to the guardianship of either the person or of the prop- erty of the child, if it have any property. The appointee is vested with the powers and is subject to the duties of guardian of such child, with respect of its custody, support, maintenance, and education, out of the estate,*® and of the custody and manage- ment of the personal estate, and profits of the real estate ; and is valid and effectual against every other person claiming the cus- tody or tuition of such minor, as guardian m socage or other- wise;*" and is not defeated by a subsequent appointment by the 32Beardsley v. Hotchkiss, 96 N. Y. 4 Bradf. 334; Rieck v. Pish, 1 Dem. 201. 79; Matter of Moody, 2 id. 624; Toler 33 Griffin v. Sarsfield, 2 Dem. 4. v. Landon, 3 id. 337. As to the effect 34 Matter of Howard, 5 Misc. 293 ; of an indorsement upon a certificate Matter of Zwiekert, id. 272 ; 26 N. Y. of benefit insurance, directing payment Supp. 773; Matter of Alexandre, 25 to a person as guardian, see Arm- Civ. Proc. Rep. 42; 35 N. Y. Supp. strong v. Warren, 83 Hun, 217; 31 N. 658 ; Matter of Schmidt, 77 Hun, 201 ; Y. Supp. 665. 28 N. Y. Supp. 350. 38 Matter of Reynolds, 11 Hun, 41. 35 Matter of Schmidt, supra. As to what language in a will amounts 36 See § 815, wnte. to an appointment of a guardian, see 37 Matter of Lichtenstadter, 5 Dem. Corrigan v. Kiernan, 1 Bradf. 208; 214. Nevertheless, a provision in a Hagerty v. Hagerty, 9 Hun, 175. will attempting to appoint a guardian 39 Olark v. Montigomery, 23 Barb, of grandchildren may be effectual as 464. creating the person a trustee of the 40 L. 1896, e. 272, § 52, re-enacting legacy bequeathed to them, and the 2 R. S. 150, §§ 2, 3. The persons who surrogate may direct payment thereof are to be deemed " guardians in to him. (lb.) See Mclioskey v. Reid, socage" are specified in 1 R. S. 718, 867 Guardianship. § 1060. surrogate.*^ He may take the custody and charge of the tuition of such minor, and may maintain all proper actions for the wrong- ful taking or detention of the minor, and shall recover damages in such actions for the benefit of his ward. He shall also take the custody and management of the personal estate of such minor and the profits of his real estate, during the time for which such disposition shall have been made, and may bring such actions in relation thereto as a guardian in socage might by law.*^ Where two persons are named in a will as " joint guardians " of the per- son and estate of the minor, and one of them refuses to act, all the rights and powers created by the appointment become vested in the other guardian.*^ § 1060. Prerequisites to authority to act The Code** forbids a person to exercise, within the State, any power or authority, as guardian of the person or property of an infant, by virtue of an appointment contained in the will of the infant's father or mother, being a resident of the State, and dying after September 1, 1880, " unless the will has been duly admitted to probate,*^ and recorded in the proper Surrogate's Court, and letters of guardianship have been issued to him thereupon; or by virtue of an appointment contained in a deed of the infant's father or mother, being a resi- dent of the State, executed after" the same date, "unless the deed has been acknowledged or proved, and certified, so as to entitle it to be recorded, and has been recorded in the office for recording deeds in the county, in which the person making the appointment resided, at the time of the execiition thereof. Where a deed containing such an appointment is not recorded, within three months after the death of the grantor, the person appointed §§ 5, 7. See Furman v. Van Sise, 56 *5 It was said, in 2 Kent's Comm. 225, N. Y. 435. that a will merely appointing a testa- *i People ex rel. Brooklyn Industrial mentary guardian need not be proved. School V. Kearney, 31 Barb. 430; 19 There was then no statutory pro- How. Pr. 493; 21 id. 74. The appoint- vision on this point. The mere filing, ment of a testamentary guardian with the surrogate, of a duly authen- operates to prevent the appointment ticated will, admitted to probate in of a guardian by the surrogate, upon another State will not entitle the ap- the petition of the infant, after he has pointee therein named, to letters of reached the age of fourteen years, guardianship. The foreign will must (Matter of Reynolds, 11 Hun, 41.) first be admitted to probate here in 42 L. 1896, c. 272, § 52. the manner pointed out by the Code. •43 Matter of Reynolds, supra. (Matter of Mehler, N. Y. Law J., June 44 Co. Civ. Proc, § 2851. This sec- 23, 1892.) Letters of guardianship tion is not applicable to an appoint- should not issue to a nonresident ment made before September 1, 1880. alien, though appointed by will. (Mat- ( Matter of Schroeder, 65 How. Pr. ter of Taylor, 3 Redf. 259; Matter of 194.) See also L. 1896, c. 272, § 51. Zeller, 25 Misc. 137.) §§ 1061, 1062. Guardianship. 868 is presumed to have renounced the appointment ; and if a guardian is afterward duly appointed by a Surrogate's Court, the presump- tion is conclusive." § 1061. Oath of testamentary guardian; letters; renunciation. — Where a will, containing the appointment of a guardian, is ad- mitted to probate, the person appointed must, within thirty days thereafter, take the oath of office ;*^ " otherwise he is deemed to have renounced the appointment. But the surrogate may extend the time so as to qualify, upon good cause shown, for not more than three months.*^ And any person interested in the estate may, before letters of guardianship are issued, file an affidavit setting forth, with respect to the guardian so appointed, any fact which is made by law an objection to the issuing of letters testa- mentary to an executor." ** A person appointed guardian by will may, at any time before he qualifies, renounce the appoint- ment by a written instrument, under his hand, filed in the surro- gate's office.*^ § 1062. Requiring security from testamentary guardian In the case of a guardian appointed by will or by deed, " the infant, or any relative or other person in his behalf, may present, to the Surrogate's Court in which the will was admitted to probate; or to the Surrogate's Court of the county in which the deed was recorded;" a petition, setting forth any fact, "respecting the guardian, the existence of which, if it was interposed as. an ob- jection to granting letters testamentary to a person named as executor in a will, would make it necessary for such a person to give a bond, in order to entitle himself to letters; and praying for a decree, requiring the guardian to give security for the per- formance of his trust." Upon the presentation of such a petition, and proof of the facts therein alleged, to the satisfaction of the surrogate, he must issue a citation accordingly. "Upon the re- turn of the citation, a decree requiring the guardian to give secu- rity may be made, in the discretion of the surrogate, in a case 4fiAs prescribed in Co. Civ. Proc., tingency, he is deemed to have re- § 2594. See OMte, § 300. nounced. (lb.) *7That is, three months from the « Co. Civ. Proc., § 2852. Sections probate of the will. (Matter of Con- 2636 to 2638 of the Code, both in- stantine, 22 St. Rep. 883.) Where elusive, apply to such an affidavit and the appointment is to take effect upon to the proceedings thereupon. (lb.) the happening of a contingency, un- 49 Co. Civ. Proc, § 2852. This pro- less he qualifies within the required vision is inapplicable to the case of a time, after the happening of the con- will proved before September 1, 1880. (Geoghegan v. Foley, 5 Redf. 501.) 869 GuAEDiANSHip. §§ 1063-1065. where a person so named as executor can entitle himself to let- ters testamentary only by giving a bond ; but not otherwise." ^^ § 1063. Requiring inventory and account to be filed. — Upon the petition of the ward, or of any relative or other person in his behalf, the Surrogate's Court having jurisdiction to require secu- rity, as above mentioned, " may, at any time, in the discretion of the surrogate, make an order, requiring a guardian, appointed by will or by deed, to render and file an inventory and account, in the same form, and verified in the same manner, as the inven- tory and account required to be filed annually by a guardian ap- pointed by a Surrogate's Court." °^ The order may also require such an inventory and account to be filed, in the month of January of each year thereafter.®^ § 1064. Judicial settlement of account — The Surrogate's Court may also compel a judicial settlement of the account of the guard- ian, in any case where it may compel a judicial settlement of the account of the general guardian; and the proceedings to procure such a settlement are the same as if the guardian had been ap- pointed by the court. By the amendment of 1891, the guardian was authorized to petition voluntarily for a judicial settlement of his account, and a discharge from his duties and liabilities, in any case where he may be compelled to account, as above.'^^ § 1065. Effect of decree — A decree, made upon the judicial set- tlement of the account of a guardian appointed by will or by deed, or the judgment rendered upon appeal from such decree, has the 50 Co. Civ. Proc, § 2853. An order elusive, apply to such an inventory of tlie surrogate denying the applica- and account, and to the filing thereof, tion for the appointment of the guard- as if the guardian had been appointed ians designated in a will, on the by the Surrogate's Court. See ante, objection taken that they were non- § 1030. So, also, section 2846 of the residents of the State, and that their Code (direction as to infant's main- pecuniary circumstances were such tenance ) , applies to a guardian ap- that they could not furnish adequate pointed by will or deed with the same security, — • Held, not authorized ; if effect as if such guardian had been the bond offered was not large enough mentioned in said section, and the he should prescribe the amount and proceedings therein prescribed may be kind of bond to be given, and upon had in the case of any such guardian their giving it, he is bound to issue in the same manner as if he were a letters of guardianship, pursuant to general guardian. (lb., as amended Co. Civ. Proc, § 2852. (Matter of 1896.) See ante, § 1029. Welsh, 50 App. Div. 189; 63 N. Y. 53 Co. Civ. Proc, § 2856, as amended Supp. 737.) 1891. Sections 2733 to 2737, inclusive, 51 Co. Civ. Proc, § 2855. and sections 2741 and 2744, are made 52 Go. Civ. Proc, § 2855. Sections applicable to this p/oceeding See 2842 to 2845 of the Code, both in- §§ 833, 1035, ante. §§ 1066-1068. GiTAEDIANSHIP. 870 same force as a judgment of the Supreme Court to the same effect.^* § 1066. Compensation — A guardian appointed by will or deed is declared to be entitled to the same compensation as a general guardian appointed by the court.®^ § 1067. Removal of testamentary guardian. — The Surrogate's Court may, upon the petition of the ward, or of any relative or other person in his behalf, remove a guardian, by will or deed, in any case where a testamentary trustee may be removed ;°^ and the proceedings are the same as for the removal of a testamentary trustee. Where a citation is issued, upon a petition for the re- moval of such a guardian, he may be suspended from the exer- cise of his powers and authority, as if he had been appointed by the Surrogate's Court.^'^ An order of removal will be revoked, at any time, on its appearing that the cause justifying the removal no longer exists, the guardian being otherwise a suitable person.^® § 1068. Resignation and appointment of successor The guard- ian may be allowed to resign, by the Surrogate's Court having jurisdiction to require security from him. The proceedings for that purpose and the effect of the decree thereon are the same as where a general guardian's letters are revoked. If the resign- ing or removed guardian was sole guardian, a successor may be appointed by the court, unless such appointment would contra- vene the express terms of the will or deed.^® 54 Co. Civ-. Proc, § 2857. Redf. 198.) The fact that a will, by B5 Co. Civ. Proc, § 2856, as amended which a guardian is appointed for an 1891. A sum of money given by the infant child of the testator, had been will for services to be rendered by the admitted to probate, there having been guardian, is not a legacy, and if the no contest on the question of testa- person designated does not act as inentary capacity, will not preclude guardian he is not entitled to receive the court from passing upon the ques- it. (Matter of Brigg, 39 App. Div. tion of the testator's mental condi- 485; 57 N. "Y. Supp. 390; affd., 105 tion, on a subsequent application to N. Y. 673.) See § 1, ante. remove the guardian. (lb.) The Su- 56 He can be removed only upon the preme Court has authority to remove grounds which would justify the re- a testamentary guardian (Matter of moval of a testamentary trustee. Watson, 10 Abb. N. C. 215; Matter of (Matter of King, 8 Civ. Proc. Kep. Waldron, 13 Johns. 418 ; People ea; reZ. 159, n.; 2 How. Pr. [N. S.] 307; affd.. Brush' v. Brown, 35 Hun, 324; Matter 4 St. Rep. 570; 42 Hun, 607.) See of Welch, 74 N. Y. 299), and the pro- § 449, ante. Misconduct of the guard- ceeding for that purpose may be in- ian"s son toward the ward, not con- stituted by petition. (Matter of Liv- nived at or countenanced by the ingston, 34 N. Y. 555 ; Wilcox v. Wil- guardian, is not sufScient ground for cox, 14 id. 575; Matter of King, 42 such removal. (Maekay v. FuUerton, Hun, 607.) 4 Dem. 153.) Before the Code, the 6T Co. Civ. Proc, § 2858. surrogate had power to remove a tes- 58 Damarell v. Walker, supra; Mat- tamentary guardian on grounds which ter of Raborg, 3 St. Rep. 323. will warrant the removal of a general 59 Co. Civ. Proc, §§ 2859, 2860. guardian. (Damarell v. Walker, 2 CHAPTER XXI. SURROGATES' DECREES: THEIR EFFECT AND ENFORCEMENT. TITLE FIKST. COLLATERAL IMPBACHMBSTT OF SUEEOGATEs' DECEEES. § 1069. Conclusive effect of surrogates' decrees. — The doctrine of estoppel by former judgment is, of course, applicable to surro- gates' decrees, except 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 re- marked, in the first place, that decrees vs^hich admit wills to pro- bate, 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, testamentary trustees, and guardians, and direct a distribution of the surplus, are of the nature of judgments in rem as distinguished from those in personam. They are judicial declarations of the state and condi- tion of some particular thing or subject-matter, by a court of ex- clusive, or at least of peculiar, jurisdiction; they are not founded on a proceeding against a person or persons, as such, but against the thing or subject-matter itself, and 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 coiirt had competent au- thority to make them, and that notice, either actual or con- structive, was given of the proceeding in which they were pro- nounced. Statutes which declare the effect, as evidence, of cer- tain 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 conclusive only so far as it is made so by the statute.' The statutes declaring the effect, as evidence, of certain decrees in Surrogates' Courts will be mentioned here, with some illustra- 1 Bank of Poughkeepsie v. Hasbrouck, 6 N. Y. 216, and cases infra. [871] § 1070. SuEROQATEs' Deceees : 872 tions of their application to particular facts and circumstances, but without any attempt to encompass the whole of this branch of the law of estoppel.^ § 1070. Effect of probate decree, as to personalty. — The Revised Statutes provided that " the probate of any will of personal prop- erty taken by a surrogate having jurisdiction, shall be conclusive evidence of the validity of such will, unless such probate be re- versed on appeal or revoked by the surrogate, or the will be de- clared void by a competent tribunal." ^ By the Code of Civil procedure, this provision is made to read as follows : " A decree admitting to probate a will of personal property, made as pre- scribed in this article [i. e., article first of title third of chapter eighteen], is conclusive, as an adjudication, upon all the questions determined by the surrogate pursuant to this article, until it is reversed upon appeal, or revoked by the surrogate; except in an action brought under section 2653a of this act to determine the validity or invalidity of such will ; and except that a determina- tion made under section 2624 [^. e., upon the construction, valid- ity, or effect of a disposition of personal property, if any, made by the surrogate upon the probate], is conclusive only upon the petitioner and each party who was duly cited or appeared; and every person claiming from, through, or under either of them." * According to the interpretation given the former statute, " the validity" of the will, of which the probate was evidence, had reference only to the due execution of the instrument, and the freedom and competency of the testator, — because those ques- tions marked the limit of the surrogate's jurisdiction.^ The dif- 2 The evidential eflFect of certain de- Vanderpoel v. Van Valkenburgh, 6 N. crees, such, for instance, as that given Y. 190; Campbell v. Logan, 2 Bradf. by Co. Civ. Proc, * 2552, to a de- 90; Bailey v. Hilton, 14 Hun, 3. cree directing payment by a repre- 4 Co. Civ. Proc, § 2626, as amended sentative to a creditor, legatee, or dis- 1897. In an action under section tributee, or permitting a judgment 2653a, the decree is presumptive, creditor to issue execution, has been merely, of the due execution and valid- mentioned elsewhere under the head ity of the will. The term " probate " of the proceeding in which they were is not employed by the Code of Civil granted. Procedure in a concrete sense ; accord- 3 2 E,. S. 61, § 29. This provision ingly, this section prescribes the effect was held not modified by the subse- of a decree, and not of the probate, as quent statute (L. 1837, c. 460, § 18), in the Revised Statutes. As to the which made the provision of 2 R. S. effect of the decree of a probate court 58, § 15, relating to reading wills of in another State, see Matter of Law, real property in evidence, applicable 56 App. Div. 454; 67 N. Y. Supp. lo wills of personal property. (Van 857. derpoel v. Van Valkenburgh, 6 N. Y. 5 See Waters v. Cullen, 2 Bradf. 354. 190.) See Colton v. Ross, 2 Paige, Prior to the enactment of section 396; Bogardus v. Clark, 4 id. 623; 2653a it was held that a claim that Morrell v. Dickey, 1 Johns. Ch. 153; a will of personal property, which has 873 Theib Effect and Enforcement. § 1071. ference in phraseology will not justify giving any other meaning to the present statutory provision, — the factum of the will still being the only issue in a probate proceeding, strictly so-called.^ So, the effect given to the former statute, that the probate was conclusive upon everybody, and not merely upon parties to the probate and those claiming under them, is the same as that given to the provision of the present Code. The only exception made is in respect to an adjudication upon "the construction, validity, and effect " of mils, which may now be made by the same decree which admits the will to probate; as to which last adjudication the decree is conclusive only on the petitioner and parties duly cited, or who appeared, and those claiming under them. Upon the question of the factum of the instrument, the decree is con- clusive against the whole world, with the single exception speci- fied in the statute. The clause in the former statute which de- clares, in effect, that a will may, notwithstanding probate, be declared void, in matter of substance, " by a competent tribunal," is omitted from the latter statute, as superfluous; but while the validity of particular provisions of a will may still be litigated, notwithstanding the probate of the instrument, yet, if that ques- tion was adjudicated by the decree of probate, the decree is con- clusive, except on appeal, on the petitioner and each party cited, or who appeared, and every person claiming from, through, or under either of them, and on those only.^ It seems that a will which has once been rejected, may, at the instance of one not a party to the original proceeding, be again presented for probate and the question of its proper execution and validity determined.* § 1071. Effect of decree, as to realty. — In respect to the effect of probate of wills of real estate, the Revised Statutes distin- guished between two classes of cases, viz.: (1) Where one or more of the subscribing witnesses to the will were examined upon the been admitted to probate, was obtained direct or collateral proceeding by an by undue influence and fraudulent adjudication of invalidity, by a corn- representations, must be litigated, and petent tribunal. But a declaration the instrument assailed as invalid on that the will is void, made by such a that account, in the first instance in tribunal, as contemplated by the stat- the Surrogates' Courts. (Smith v. ute, does aot reverse the probate, but Hilton, 50 Hun, 236; 19 St. Eep. 340.; operates to supersede it; because the 2 N. Y. Supp. 820.) To same effect declaration is based upon the tubstan- are Anderson v. Appleton, 48 Hun, tial illegality of the provisions of the 534; Clark v. Fisher, 1 Paige, 171; will. (Bogardus v. Clark, 4 Paige, Walter v. Fowler, 85 N. Y. 621; Ha- 623.) gerty v. Andrews, 94 id. 195. 8 Matter of Tilden, 56 App. Div. 277. eSee § 254, ante. See Corley v. McElmeel, 149 N. Y. 7 Assuming that the probate was 228, 235. regular, it can be overthrown in a, § 1071. SUEEOGATES' Deceees : 874 probate; and (2) where it satisfactorily appeared that all the sub- scribing witnesses were dead, insane, or nonresidents of the State, and, accordingly, other proof than their examination was received. In the first class of cases, besides providing that the will, in dorsed with the surrogate's certificate of proof, might " be read in evidence without further proof thereof," ® the statute declared that the record of such will in the surrogate's book, or an ex- emplification thereof, " shall be received in evidence and shall be as effectual in all cases as the original will would be, if pro- duced and proved, and may in like manner be repelled by con- trary proof." ^° In the second class of cases, the vnll was to be deposited with the surrogate, and does not appear to have been invested with any evidential character; but it was declared that the record of the proofs and examinations taken on the probate, or the exemplifications of such record, "shall be received as evi- dence upon any trial or controversy concerning the same will, after it shall have been proved, on such trial or controversy, that the lands in question therein have been uninterruptedly held under such will for the space of twenty years before the com- mencement of the suit in which such trial or controversy shall be had; and shall be of the same force and effect as if taken in open court upon such trial or in such controversy." ^' Under these provisions, the utmost effect of the probate was to make it equivalent merely to that of acknowledging or proving the exe- cution of a deed. The evidence was not conclusive. ^^ And where none of the subscribing witnesses were examined upon the probate, the effect of the record, or exemplification of the record of the proofs, was still further circumscribed by requiring it to be supplemented by proof of twenty years' adverse possession under the will. This somewhat extended examination of the rule under the Eevised Statutes has been made becatise it is believed that the meaning of the portions of the present Code upon the same subject can be fully apprehended, if at all, only by a com- parison with the statutes upon which they are based. The Code provides, that " a decree, admitting to probate a will of real property, made as prescribed in this (18th) article, estab- lishes, presumptively only, all the matters determined by the 9 See Co. Civ. Proc, § 2629, for 235. See Bogardus v. Clark, 4 Paige, the counterpart of this provision, and 623; Harris v. Harris, 26 N. Y. 433. § 247, ante. As to effect of probate under L. 1870, 10 2 R. S. 58, § 15. c. 359, § 11, see Bensen v. Manhattan 112 R. S. 59, § 18. R. Co., 14 App. Div. 442; 43 N. Y. 12 Jackson v. Rumsey, 3 Johns. Caa. Supp. 914. 875 Theie Effect and Enfoecement. § 1071. surrogate, pursuant to this article, as against a party who was duly cited, or a person claiming from, through, or under him; or upon the trial of an action, or the hearing of a special pro- ceeding, in which a controversy arises concerning the will, or where the decree is produced in evidence, in favor of or against a person, or in a case specified in this section, the testimony taken in the special proceeding, wherein it was made, may be read in evidence, with the same force and effect as if it was taken upon the trial of the action, or the hearing of the special proceeding, wherein the decree is so produced." '^ It confirms the former rule, in so far as it makes the decree presumptive only.^'* Its true interpretation appears to us to be a matter not entirely free from difficulty, although the revisers' note refers to it as based on the section of the Revised Statutes, above quoted, " without material change." Inasmuch as the only opportunity to apply the doc- trine of presumptive evidence seems to be in the course of a litigation, we construe the effect of this provision to be — First, to make the surrogate's decree granting probate of a will of real property, presumptive evidence of the due execution of the will and of the freedom and competency of the testator, in any action or special proceeding, as follows: (a) As against one who was duly cited to attend the probate, or a person claiming from, through, or under him; at any stage of the proceedings, and in whatever manner a question may arise, upon which the evidence is available to his adversary. (&) As against any other person; upon the former tHal or hearing, where such person seeks to impugn the will in any of the particulars above specified; and 13 Co. Civ. Proc, § 2627, as must be admitted to probate as " a amended 1881, the amendment consist- will valid to pass real property," ing in omitting the words " where it means an instrument duly executed is proved that the real property in which undertakes in terms to convey question has been uninterruptedly that species of property. The court's held, under the will, for at least decision probating a will in those twenty years before the action was terms has not the effect of an adjudi- commeneed or the special proceeding cation as to the validity of the de- instituted," — -which followed the vises in the will. (Matter of Mer- words "concerning the will." riam, 136 N. Y. 58; 48 St. Rep. 897.) 14 Norris v. Norris, 63 How. Pr. 324 ; To the same effect, Corley v. McElmeel, Thorn V. Shell, 15 Abb. Pr. (N. S.) 81. 149 N. Y. 228; 43 N. E. Rep. 628. The record of the will is presumptive Compare Naylor v. Brown, 32 Misc. evidence only to its due execution and 298 ; Baxter v. Baxter, 76 Hun, 98 ; the mental capacity and freedom from 27 N. Y. Supp. 834; Rankin v. Janes, restraint of the testator, not of the 10 App. Div. 400; 41 N. Y. Supp. validity of a devise therein in any 1129; Bowen v. Sweeny, 89 Hun, 359; tribunal where the title to the realty 35 N. Y. Supp. 400; afifd., 154 N. Y. may be in issue. The provision of 780. Co. Civ. Proc, § 2616, that the will §§1072,1073. SuEEOQATEs' Deceees: 876 Secondly, to allow the testimony taken upon the probate to be read in support of the decree, in either case. The policy of the law is measurably obscure; and its resem- blance to the pre-existing regulations is not striking. § 1072. Effect of letters testamentary, etc., as evidence Except as between different letters on the same estate, letters testamen- tary, letters of administration, and letters of guardianship " are conclusive evidence of the authority of the person to whom they are granted, until the decree granting them is reversed upon appeal, or the letters are revoked." ^* Surrogates' Courts have sole and exclusive jurisdiction over the subject of granting letters testamentary, and of administration, and, as a part of that juris- diction, have power to determine, upon suificient evidence, the facts upon which their action must rest.^® § 1073. Conclusive effect of judicial settlement of representatives' accounts. — The Code declares that "a judicial settlement of the account of an executor or administrator, either by the decree of the Surrogate's Court, or upon an appeal therefrom, is conclusive evidence, against all the parties who were duly cited or appeared,^'^ and all persons deriving title from any of them at any time, of the following facts, and no others: (1) That the items allowed to the accounting party, for money paid to creditors, legatees, and next of kin, for necessary expenses, and for his services,^* are cor- rect. (2) That the accounting party has been charged with all the interest of money received by him, and embraced in the account, for which he was legally accountable. (3) That the money charged to the accounting party, as collected, is all that 15 Co. Civ. Proc, § 2591. See tion being that the affidavit was taken Leonard v. Columbia Steam Nav. within the limits of his jurisdiction. Co., 84 N. Y. 48 ; Abbott v. Curran, 98 See bkelton v. Seott, 18 Hun, 375 ; id. 665; Brown v. Landon, 30 Hun, Lowman v. Elmira, etc., K. Co., 85 57; 4 Civ. Proc. Eep. 11; Sullivan v. Hun, 188; 32 N. Y. Supp. 579; More Tioga R. R. Co., 7 St. Eep. 637; 12 v. Finch, 65 Hun, 404; 20 N. Y. Supp. Civ. Proc. Rep. 301. In Crosier v. 164; Czech v. Bean, 35 Misc. 729; 72 Cornell Steamboat Co. (27 Hun, 215), N. Y. Supp. 402. it appeared that a petition for letters 16 Bolton v. Schriever, 135 N. Y. of administration was verified before 65. The subject of impeaching judg- " J. P. C, Notary Public." No sepa- ments, for the court's lack of jurisdic- rate affidavit of verification was ap- tion to grant it, is mentioned on a pended, but a jurat, thus : " Sworn subsequent page. before me," etc. It did not appear 17 As to those not ciied, the repre- whether the notary was for the county sentative remains liable to account, of the surrogate who issued the let- (Matter of Lamb, 10 Misc. 638; 32 ters. Held, that the jurisdiction of N. Y. Supp. 225.) the surrogate to grant the letters on 18 Matter of Prentice, 25 App. Div. such a verified petition could not be 209: 49 N. Y. Supp. 353; affd., 160 impeached collaterally, the presump- N. Y. 568. 877 Theie Effect and Enfokcement. § 1074. -was collectible, at the time of the settlement, on the debts stated in the account. (4) That the allowances made to the accounting party, for the decrease, and the charges against him for the in- crease, in the value of property, were correctly made." ^® § 1074. Application of statute. — In the first place^ observe that the object of the statute was to .make certain facts final after they should be adjudged by the surrogate, as against creditors and others, in favor of the executors or administrators, as such.^ Con- sequently, the decree is not a bar to an action brought for the enforcement of a trust of which the accounting parties become trustees, ex maleficio, where the matter was not embraced in the accounts, and the question was not litigated on the settlement.^^ Otherwise, however, where the matters in dispute were passed 19 Co. Civ. Proc, § 2742. The orig- but assets remained in the hands of inal of this provision (2 R. S. 94, the accounting party which he was § 65) did not cure defects in the juris- directed by the decree to thereafter diction of the subject-matter of the use diligence to colleot, a party to the settlement; the decree being not con- proceeding is not concluded by the de- clusive, even in the resj-ects enumer- cree, in an action brought by him to ated, as to a claim of which the sur- enforce a claim against the decedent, rogate had not jurisdiction. (Tucker It is not necessary for him to show in V. Tucker, 4 Abb. Ct. App. Dec. 428. ) such an action that anything has been See Brown v. Brown, 53 Barb. 217. or might have been since collected, al- 20 Bank of Poughkeepsie v. Has- though this inquiry may become nec- brouek, 6 N. Y. 216. In that case, essary, when an enforcement of the the payee of a note of the intestate judgment is attempted. (Sheldon v. had pledged it, but concealing this Sheldon, 33 St. Rep. 754; 11 N. Y. fact, he claimed payment from the ad- Supp. 477.) So, where the accounting ministrator, representing that it was is by co-representatives, the decree is lost, and the administrator paid him, no bar to an action by one against the and, upon his final accounting, had it other, for a debt due by the latter to allowed to himself, upon the distribu- the estate, and which did not enter tion. Held, that the payee, who had into the accounting. (Wurts v. Jen- not presented the demand, nor ap- kins, 11 Barb. 546.) See Merritt v. peared before the surrogate, was en- Merritt, 33 Misc. 230; 67 N. Y. Supp. titled to proceed against the estate, 188. Where both of two representa- or to recover the money from the ad- tives were cited to account, but one ministrator, as received to his use. of them assumed to act alone, and As to the effect of the decree upon alone accounted and was treated by the right of the executor to recover the court as accounting for the whole an excessive payment on account of a estate; — Held, that this was a final legacy, see Underbill v. Rodwell, 18 settlement of the whole estate, and not App. Div. 361 ; 46 N. Y. Supp. 22. a partial settlement of the accounts of 21 Fulton V. Whitney, 66 N. Y. 548. only one of its representatives. (Peo- I"or a case where the decree was held pie v. Townsend, 37 Barb. 520.) See not to be a bar to an action, by lega- Matter of Valentine, 22 N. Y. Supp. tees who were not parties to the ac- 195. A decree directing executors to counting, to obtain a construction of transfer to themselves as trustees the the decedent's will, and in effect to corpus of the trust estate is conclu- review the determination of the surro- sive as an adjudication of the exist- gate, see Fisher v. Banta. 66 N. Y. ence of the trust. (Matter of Garth, 468. See also Matter of Gall, 42 App. 10 App. Div. 100; 41 N. Y. Supp. Div. 255 ; 59 N. Y. Supp. 254. Where, 1022.) See Brown v. Wheeler, 53 by its terms, the decree was not final, App. Div. 6. § 1074. Stjeeogates' Decrees : 878 upon by the decree.^^ The decree^ and the formal discharge con- tained in it, relate only to his accounts up to that period; other assets may be realized, and new liabilities incurred f^ and where, on the accounting, a creditor does not take his share of the fund, the representative retains it in his capacity as such.^ In the second place, a party to an accounting is bound to exhaust the remedies afforded by that proceeding, and any relief which the court might or ought to have granted^ cannot afterward be obtained, by action, in another court.^^ Thus a claim that an administrator was chargeable upon certain notes made by him and held by the estate at a greater rate of interest than he paid thereon, cannot be raised after a judicial settlement of the account at which the claim could have been raised.^* But a party is not concluded as to a matter which was not properly before the court and not made the basis of any decision, e. g., the construction of a will as to real property, where the accounting deals only with personalty.^'' In the next place, where several successive accountings are had, each based upon the one preceding, the validity of each previous accounting being unchallenged by any objection, the last decree is binding and conclusive as to the validity of those preceding it.^ But the rule of estoppel by a former accounting does not apply beyond the question of the funds distributed, and consequently one set of 22 Shimmel v. Morse, 57 App. Div. A final decree against an administra- 434; distinguishing Fulton v. Whit- tor, adjudging money in his hands to ney, supra. See Rhodes v. Caswell, 41 be due and payable to parties entitled, App. Div. 229; 58 N. Y. Supp. 470. runs against him personally and de 23 Matter of Hoyt, 160 N. Y. 607; honis propriis. (Laney v. Laney, 47 55 N. E. Rep. 282; Matter of Doheny, St. Rep. 99; 19 N. Y. Supp. 518.) So, 70 App. Div. 370; 75 N. Y. Supp. 24. too, an execution upon such decree. The last case dealt with the conclusive (Matter of Waring, 7 Misc. 502; 28 effect of a decree settling the accounts N. Y. Supp. 393 ; Matter of Quacken- of temporary administrators upon bos. 38 Misc. 66. See § 468, write. their subsequent accounting as trus- 25I.aney v. Laney, 47 St. Rep. 99; tees under the will. 19 N. Y. Supp. 518. But see Matter 24Paff V. Kinney, 1 Bradf. 1; Ma- of Whitbeck, 22 Misc. 494; 50 N. Y. honey v. Bernhard, 45 App. Div. 499. Supp. 932. In that case, Barrett, J., said : " It 26 Matter of Gilbert, 104 N. Y. 200. is true that when executors, under a 27 Corse v. Chapman, 153 N. Y. 466 ; surrogate's decree upon their account- Washbon v. Cope, 144 id. 287 ; 63 ing, turn over to themselves, as trus- St. Rep. 716; Trustees of Amherst tees, the balance of the estate found College v. Ritch, 151 N. Y. 282. Com- to be in their hands, it is tantamount pare Matter of Perkins, 75 Hun, 129; to a discharge with respect to the 26 N. Y. Supp. 958 ; Brown v. Wheeler, property so turned over. But the ex- 53 App. Div. 6; 65 N. Y. Supp. 436. ecutorial functions are not absolutely 28 Matter of Tilden, -98 N. Y. 434; terminated thereby; and we cannot at Matter of Douglas, 60 App. Div. 64; all agree to the appellant's proposi- 69 N. Y. Supp. 687 ; Matter of Union tion that thus ' the executors became Trust Co., 65 App. Div. 449. See Mat- non-existent.' They were in legal in- ter of Clapp, 30 Misc. 395; 63 N. Y. tendment discharged pro tanto." Com- Supp. 1096. pare Paff v. Kinney, 5 Sandf. 380. 879 Their Effect and Enpoecement. § 1075. legatees is not precluded by the former decree from seeking an equalization of funds not distributed, so as to correct an error of law made on the former proceeding, although the effect would be to protect the trustee from personal loss.^* § 1075. As to payments to creditors and others The decree es- tablishes not only the fact that the payments were made, but that they were rightfully made. The validity of the debt, and the right of the party to whom it is paid, are adjudged, as well as the fact of payment.^" Hence a judgment creditor, who was a party to the accounting, is barred by the decree from bringing thereafter a creditor's suit to impeach as fraudulent the settlements made by the representative, and embraced in the account. ^^ So, also, a decree settling the accounts of executors and charging them with a certain mortgage which they are declared to hold in trust for certain purposes directed by the will, directing payment of the interest thereon to the beneficiaries imder the trust, estops not only the beneficiaries, who were parties to the proceeding, from subsequently questioning the propriety of the transactions by which the trustees became possessed of such mortgage,^^ but as well the executors, fro'm seeking to evade their liability to ac- count.^^ And the same principle applies to a decree confirming a sale of lands under a power, and directing distribution of the proceeds.^* 29 Bowditch V. Ayrault, 63 Hun, 23 ; presence of items in the account, in 17 N. Y. Supp. 281; 128 N. Y. 222. the distribution of its balance, of 30 Wright V. Meth. Epia. Church, which he is a participant. ( Robinson Hoffm. 202; Altman v. Hofeller, 152 v. Robinson, 2 St. Rep. 666.) A de- N. Y. 498. cree upon an accounting adverse to a 31 Rose V. Lewis, 3 Lans. 320. The claim is a bar to a subsequent action allowance made by a surrogate, for thereon. (Baldwin v. Smith, 91 Hun, the costs and counsel fees on an ac- 230; 36 N. Y. Supp. 159; Sexton v. couliting, is not conclusive in an ao- Sexton, 64 App. Div. 385; 72 N. Y. tion by the attorney, to recover for Supp. 213.) his services and disbursements. (My- 32 Matter of Denton, 103 N. Y. 607; gatt V. Wilcox, 1 Lans. 55; aflfd., 45 Matter of Hawley, 100 id. 206; Ells- N. Y". 306.) Wnere money has been worth v. Hinton, 47 Hun, 625. See paid upon an erroneous decree which Matter of Willets, 112 N. Y. 289. is afterward reversed, the payor may, 33 Kager v. Brenneinan, 47 App. Div. after demand and refusal, maintain 63; 62 N. Y. Supp. 339. an action to recover the amount paid. 3* Biirkard v. Crouch, 169 N. Y. (Scholey v. Halsey, 72 N. Y. 578.) A 399; Shimmel v. Morse, 57 App. Div. decree settling an account, which in- 434 ; Mutual Life Ins. Co. v. Schwaner, eludes a bill only partly paid, protects 36 Hun, 373; aflfd., 101 N. Y. 681; the accounting party only as to that Rhodes v. Caswell, 41 App. Div. 229 ; so paid. (Matter of White, 6 Dem. 58 N. Y. Supp. 470. As to the appli- 375.) An interested party who was cation of the doctrine of equitable cs- present at an accounting, in the ab- toppel to prevent impeachment of de- sence of proof to the contrary, will crees generally, see Matter of Lyman, be presumed to have knowledge of the 14 Misc. 352; 36 N. Y. Supp. 117; §§ 1076, 1077. Subrogates' 'Deceees: 880 § 1076. Sureties concluded — The sureties on the accounting party's bond are not necessary parties to the judicial settlement of their principal's accounts, and are not usually actual parties; but, in the absence of fraud, or collusion^ they are concluded by the decree, for, by the terms of their contract, they are privy to the proceeding.^^ The decree is conclusive as evidence only.^* Sure- ties upon an administration bond, as vi^ell as the principal, are es- topped from questioning the authority of the surrogate to grant the letters, or the liabilities of the sureties for the acts of their principal, in the execution of his duties as administrator, or the order made by the surrogate fixing his liability ;^'^ nor will they be allowed to question the jurisdiction for a defect in the order removing their principal.^^ A decree discharging an adminis- trator and his sureties is assailable by any party aggrieved, either by motion to set it aside or by proceedings on appeal; and in neither case is it necessary that the sureties have notice of the proceedings.^^ § 1077. Direct impeachment of decrees It may be well to re- peat, that the doctrine of estoppel, whether statutory or otherwise, has no application to a proceeding instituted for the express pur- pose of revoking or modifying the decree in the court which granted it, or to appeals therefrom. ■*" One of the incidental powers conferred upon Surrogates' Courts is the power to open, vacate, modify, or set aside their own decrees — a power, however, which can only be exercised " in a like, case and in the same manner as a court of record and of general jurisdiction exercises the same powers." ^^ As a general rule, where an account of an executor Duryea v. Maekey, 151 N. Y. 204; Wil- 38 Harrison v. Clarke, 20 Hun, 404. liama v. Whittell, 69 App. Div. 340; 39Deobold v. Oppermann, 111 N. Y. 74 N. Y. Supp. 820; Boyer v. Decker, 531; 20 St. Rep. 81. 5 App. Div. 623; 40 N. Y. Supp. 469; « Campbell v. Logan, 2 Bradf. 90;, Matter of Irvin, 24 Misc. 353; 53 Kerr v. Kerr, 41 N. Y. 272; Post v. N. Y. Supp. 715. Mason, 26 Hun, 187; affd., 91 N. Y. 35 See § 469, ante. 539. 36 See Hood v. Hayward, 48 Hun, *l Co. Civ. Proc., § 2481, subd. 6; 330; 124 N. Y. 1; Wright v. Fleming. Matter of Richardson, 81 Hun, 425; 12 id. 469; S.tiles v. Burch, 5 Paige, 30 N. Y. Supp. 1008. See §§ 52, 54 132; Altman v. Hoffeller, 152 N. Y. ei seq., ante. The power which a 498; Martin v. Hann, 32 App. Div. surrogate has to set aside a decree 602; 53 N. Y. Supp. 186. which he had no power to make (Vree- 3T Field V. Van Gott, 15 Abb. ( N. S. ) denburg v. Calf, 9 Paige, 128 ), is to be 349; People v. Falconer, 2 Sandf. 81; distinguished from his general power Cadwell v. Colgate, 7 Barb. 253; to grant new trials. (People v. Jus- Thayer v. Clark, 4 Abb. Ct. App. Dec. tices, etc., 1 Johns. Cas. 180.) Sur- 391; Scofield v. Churchill, 72 N. Y. rogates' Courts have always had the 565; Keegan v. Smith, 60 App. Div. power to reopen a decree settling an 168; 70 N. Y. Supp. 260. account to correct a mistake, by 881 Theie Effect and Enfoecement. § 1077. has been judicially settled, it may be presumed that he has ac- counted for all property that came into his hands; and a party who seeks to compel a further accounting should present a clear case before the application will be granted.*^ It is said that the power of a surrogate to open a decree made by him should be cautiously exercised^ and not simply for the purpose of reviewing his decision; and his discretion in respect thereto is reviewable on appeal. Laches, in moving to open the decree, may be the ground of refusing the application.*^ Where the decree has been affirmed amendment, — e. g., to require a fur- ther account, in respect to a sum re- ceived by the accounting party, with which he had charged himself at less than the real amount. (Sipperly v. Baucus, 24 N. Y. 46.) But see Matter of Mount, 27 Misc. 411; 59 N. Y. Supp. 176. The causes for which sur- rogates' decrees may be vacated under section 2481 are analogous to those enumerated in sections 1282 and 1283, and governed by the limitation im- posed therein, except where fraud and collusion are made the ground of the application. In the latter cases, those limitations have no application. ( Mat- ter of Tilden, 98 N. Y. 434; with opinion below, 1 How. Pr. [N. S.] 409; Meleher v. Stevens, 1 Dem. 123; Matter of Henderson, 157 N. Y. 423; Matter of Flynn, 136 id. 287; 49 St. Eep. 388.) A notice to vacate a decree, on the ground that the de- cision does not state the facts and con- clusions separately, cannot be allowed after the expiration of one year from its filing. (Matter of Hesdra, 4 Misc. 37; 23 N. Y. Supp. 846.) Heirs who were not parties to an accounting can- not have the decree opened on the ground that the account may be used against them under section 1848. (Matter of McOunn, 15 St. Eep. 712.) The fact that one of the next of kin of a testator was not cited in pro- ceedings for probate is " sufficient cause " within Co. Civ. Proc, § 2481, for opening the decree of probate as to such next of kin. (Matter of Odell, 1 Misc. 390; 23 N. Y. Supp. 143; Matter of Harlow, 73 Hun, 433; 26 N. Y. Supp. 469.) So, too, as to one who, though cited, was sick and had no knowledge of the hearing. Matter of Traver, 9 Misc. 621; 30 N. Y. Supp. 851.) But otherwise as to one not required to be cited, where the decree refused probate. (Matter of Tilden, 56 App. Div. 277.) A 56 creditor of the estate who has pre- sented his claim, may procure a de- cree opening the final settlement of the account of the administrator, ob- tained without notice to him, and thereupon proceed against the admin- istrator, without making beneficiaries of the estate parties, though they have received their shares. (Matter of Gall, 47 App. Div. 490; 62 N. Y. Supp. 420.) See Matter of Killan, 66 App. Div. 312; 72 N. Y. Supp. 714. The petition and account of an exec- utor are in the nature of pleadings, and, when properly verified, the state- ments contained in the accounts are, unless questioned, to be regarded as true; a decree will not be set aside, therefore, on motion, for failure to prove facts, when they are there suf- ficiently stated. (Matter of Baity, 2 Connoly, 485.) See § 1081, post, notes 59 and 60. A decree upon an account- ing may, however, be vacated because of a false statement by the adminis- trator, in his petition therefor, that he was the husband and sole next of kin, without revoking his letters of admin- istration. (Matter of Patterson, 146 jSr. Y. 327 ; 66 St. Rep. 639. ) *2 Matter of Soutter, 105 N. Y. 514. See Matter of McManus, 35 Misc. 678 ; 72 N. Y. Supp. 409. A decree should not be opened for the purpose of in- cluding in the account disbursements made after it was filed. (Matter of Arkenburgh, 38 App. Div. 473; 56 N. Y. Supp. 523.) 43 Story V. Dayton, 22 Hun, 450'; Strong V. Strong, 3 Eedf. 477 ; Matter of Salisbury, 6 N. Y. Supp. 932; Decker v. Elwood, 3 Sup. Ct. (T. & C.) 48; Yale v. Baker, 5 id. 10. After the lapse of years, — in this case nine, — a surrogate's decree should not be opened for an Eilleged mistake, ex- cept upon clear evidence. (Matter of Deyo, 36 Hun, 512.) S. P., Matter of Waack, 5 N. Y. Supp. 522; Matter of 1078. SUEEOGATES' DeCKEES : 882 upon appeal, and remitted by that court for further proceedings, the surrogate cannot open the decree and grant a rehearing for alleged error in law, but must give effect to the judgmenit of the appellate court.** § 1078. When decree may be impeached collaterally. — The con- clusive effect of a decree necessarily depends upon the power of the court to pronounce it. A decree, which transcended the juris- diction of the court to make, may be attacked in all courts, either Stevens, 6 id. 635. The application to vacate the decree, if based on the infancy of the party applying, or the existence of irregularities in the course of the proceeding, should, if tvfo years have expired from the entry of the decree, be made vifithin one year after the minor arrives at the age of twenty-one years. (Matter of Tilden, 98 N. Y. 434.) The time to appeal from a surrogate's decree having ex- pired, it seems that an error in sub- stance cannot be corrected therein by him, on motion. (Matter of Seaman, 63 App. Div. 49; 67 N. Y. Supp. 376; Matter of Coogan, 27 Misc. 563; 59 N. Y. Supp. 111.) See Matter of Cook, 68 Hun, 280; 22 N. Y. Supp. 969. In Matter of Baker (N. Y. Law J., July 15, 1892), the decree which directed the fund in question to he distributed by the executor was made without notice to the attaching cred- itor. Subsequently, a motion was made by the executor on notice to all the parties in interest to modify said decree by striking out such direction and providing for the deposit of the fund in a, trust company to await the determination of the conflicting claims of the attaching creditor and the other claimant of the fund. This was denied. An applicatio^i^ was then made by the attaching creditor, and the sheriflf holding the attachment, to have their right of claim to the money attached determined, and for leave to intervene for the purpose. Per Ransom, S. : "As the attachment was issued prior to the entry of the decree, I have con- cluded to open the decree for the pur- pose of hearing the parties respecting the disposition of the fund in con- troversy, although I am not at all satisfied that the same relief could not be given without disturbing the decree. ( Russell v. Ruckman, 3 E. D. Smith, 427, 428.) I was previously of the opinion that I did not have the power which I am now exercising, but further consideration of the sub- ject has convinced me that I was in error. (Co. Civ. Proc, § 655, subd. 1; O'Brien v. Glenviile Wool Co., 50 N. Y. 134 ; Russell v. Ruckman, supra; Hall V. Brooks, 89 N. Y. 33; Baker V. Brown, 64 Him, 627; Backus v. Kimball, 27 Abb. N. C. 364, 365.)" See Matter of Piersou, 19 App. Div. 478; 46 N. Y. Supp. 557. A decree settling an executor's account will not be opened and modified, upon the ap- plication of the executor, on the ground that he included in his ac- count a sum which was not assets, where it appears that he had, in fact, received such sum with knowledge of all the facts, and his mistake, if any, was one of law. (Matter of Watts, 2 Connoly, 415.) S. P., Matter of Beach, 3 Misc. 393; 24 N. Y. Supp. 717; Mat- ter of Monteith, 27 Misc. 163; 58 N. Y. Supp. 379. Where executors dis- tributed, in kind, assets consisting of things in action, guaranteeing their collection, and subsequently had a final accounting and distribution of the remainder of the estate, — Held, that the decree on the accounting should not be opened on account of a loss on the things in action, but the parties concerned must resort to the guaranty. (Redmond v. Ely, 2 Bradf. 175.) «Reed v. Reed, 52 N. Y. 651. See Matter of Westerfield, 61 App. Div. 413; 70 K". Y. Supp. 641. After an appeal has been perfected from the decree settling the account, the surro- gate has no power to open the decree and send the issues back to the ref- eree for further testimony. (Matter of May, 6 N. Y. Supp. 357; 24 St. Rep. 888.) But an affirmance of the decree does not deprive persons inter- ested, who were not parties to the appeal, of the right to have the decree set aside for fraud. (Matter of Hodg- man, 82 Hun, 419; 31 N. Y. Supp. 263.) 883 Theie Effect and Enfoecement. § 1079. directly or collaterally, as being void for want of jurisdiction.*^ Before a surrogate can acquire jurisdiction of 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 resi- dence in the county of the surrogate, oe the location of assets in that county. The statute*® provides, that " the Surrogate's Court obtains jurisdiction in every case^ by the existence of the jurisdic- tional facts prescribed by the statute, and by the citation or ap- pearance of the necessary parties." If, by the nonexistence of any jurisdictional fact, the court had not jiirisdiction of the subject- matter, his decree is not merely voidable, subject only to be re- versed on appeal or by a direct proceeding for that purpose, but it is absolutely void, and no rights can be founded: thereon.*^ § 1079. Evidence of jurisdictional facts. — When the authority of a surrogate's decree is attacked in a collateral proceeding^ for want of jurisdiction over the subject-matter, or the parties, alle- gations of the jurisdictional facts in the petition or pleadings upon which the decree or order is based, are evidence of the existence of those facts; and a recital in a decree of the due citation of the necessary parties is presumptive proof thereof.** The rule is stated to be, that " when certain facts are proved to a court or officer, having only special and limited jurisdiction, as a ground for issuing process, and there is a total defect of evidence as to any essential fact, the process will be void; but where the proof has a legal tendency to make out a proper case, in all its parts, for issuing the process, then, although the proof may be slight and inconclusive, the process will be valid until set aside by a direct proceeding for that purpose." *^ In the one case, the court acts without authority; in the other, it only errs in judgment upon a question properly before it for adjudication.^" In granting a 45 See Washbon v. Cope, 144 N. Y. justice's judgment, Mullin, J., writ- 287; 63 St. Rep. 716; Matter of Arm- ing the opinion of the court, said: strong, 72 App. Div. 286. " When in special proceedings in 46 Co. Civ. Proc, § 2474. courts or before ofiScers of limited 47 Dakin v. Demming, 6 Paige, 95 ; jurisdiction, they are required to as- Tueker v. Tucker, 4 Abb. Ct. App. certain a particular fact, or to ap- Dee. 428; Dudley v. Mayhew, 3 N. Y. point persons to act in such proceed- 9; Van Deusen v. Sweet, 51 id. 378; ings,- having peculiar qualifications, or Roderigas v. East River Savings Inst., occupying some peculiar relation to 76 id. 316, and cases infra. the parties or the subject; such acts, 48 Co. Civ. Proc, § 2473. when done, are in the nature of ad- 49 Staples V. Fairchild, 3 N. Y. 41 judications which, if erroneous, must ( per Jewett, Ch. J. ) ; S. P., Potter be corrected by a direct proceeding for V. Ogden, 136 N. Y. 384, 396. that purpose; and, if not corrected, 50 In Potter v. Purdy (29 N. Y. the subsequent proceedings which rest 106), which was an appeal from a upon them are not affected, however § 1079. SUEEOGATES' DeCEEES : 884: citation upon a verified petition which alleges all the necessary jurisdictional facts which the statute requires, in the particular case^ the surrogate acts judicially, and the rule is, therefore, that his jurisdiction thus adjudged by him cannot be impeached col- laterally. It can be attacked only directly in a proceeding for that purpose, or by appeal. In one ease, though by an equally divided court, it was held that, where letters of administration were issued by a surrogate, upon due statutory proof of the death of the person, administration of whose estate was applied for, and it afterward turned out that such person was not dead at the time^ a debtor of the alleged intestate was protected in paying the debt to the administrator so appointed.®^ And so, inasmuch as the surrogate, upon probate proceedings, has jurisdiction and is bound to inquire whether decedent was an inhabitant of his county at the time of his death, his decision that such was the case can- not, in the absence of fraud or collusion, be questioned col- laterally.^^ erroneous such, adjudication may be." And see Bumstead v. Eead, 31 Barb. 661; Bolton v. Brewster, 32 id. 389; Monell V. Denison, 17 Ho-w Pr. 401; Miller v. Brinkerhoflf, 4 Den. 119; People V. Sturtevant, 9 N. Y. 263, and eases infra. " There is no branch of the law more difficult of solution than to define when, and under what cir- cumstances the proceedings of inferior as well as superior courts may be at- tacked, and when they are a protec- tion to persons acting under them. * * * There are some general rules that are well settled; one is that the proceedings of courts, especially of limited jurisdiction, may be attacked collaterally for want of jurisdiction over the subject-matter; another is that if the court or officer has juris- diction of the subject-matter, then the exercise of that jurisdiction, however irregular or erroneous, i? conclusive until reversed." (Per Church, Ch. J., Eoderigas v. East River Savings Inst., 76 N. Y. 316.) See Matter of Parnam, 75 id. 187; Matter of Hood, 90 id. 512; Post V. Mason, 26 Hun, 187; Woodward v. James, 16 Abb. N. C. 246. 51 Eoderigas v. East Eiver Savings Bank, 63 N. Y. 460; revg. 48 How. Pr. 166. This decision has given rise to no little discussion, and the conclu- sions arrived at have not been alto- gether concurred in. But it is to be sustained by the peculiar language of our statute conferring the jurisdiction. Dr. Wharton (Evidence, § 810) ob- serves that the decision assumes that the surrogate had jurisdiction, which, he says, could not be, " unless under a peculiar and local statute," if there was no deceased person to be admin- istered to And this was the ground of the decision. Earl, J., expressly states that " as my conclusion in this case is based upon the construction of the statutes of this State regulating the jurisdiction and proceedings of Surrogates' Courts, decisions of other States, made under statutes not the same, can furnish us little aid." The authorities are uniform that, at com- mon law, the jurisdiction of surrogates is confined to granting administration upon the estates of deceased persons, and if a person is alive, the letters are an absolute nullity. (Jochumsen v. Suffolk Bank, 3 Allen, 87; Allen v. Dundas, 3 T. E. 125; Griffith v. Fra- zier, 8 Cranch, 9.) And see a learned note by Judge Redfield, in Am. Law Reg., April, 1876, p. 212; (mte, § 342. 52 Bolton V. Schriever, 135 N. Y. 65 ; 47 St. Rep. 870. That was an action of ejectment for land in New York city, plaintiffa claiming as heirs-at- law of one under whose will, proved before the surrogate in New York county, in 1841, defendant made title as devisee, plaintiffs maintaining that the testator was not a resident of 885 Their Effect and Enforcement. §§ 1080, 1081. § 1080. The decree must be a judicial act. — It is always com- petent for 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/'^ and that blank letters, signed and sealed, had been stolen, etc.; in fact, any jurisdictional defect, which does not impeach the surro- gate's decision, may be shown, to avoid the force and effect of the decree. It was accordingly held, that where a petition for letters of administration, though alleging all the necessary juris- dictional 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 isstiing 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.^* 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 presented — e. g., where the petition for administration alleged the death, " upon the best of the knowl- edge, information, and belief " of the petitioner — the letters is- sued thereon are void; such an allegation is not "proof" vsdthin the meaning of the statute.*^ § 1081. Burden of proof of jurisdictional facts. — Where, in a collateral proceeding, a surrogate's decree is set up as a ground of right, or, on the other hand, is impeached for want of jurisdiction, the burden of proving jurisdiction on the one hand, or want of jurisdiction on the other, is upon the party so claiming under, or impeaching, the decree.*® The rule has always been, that, prima New York county; that he died in (Per Peckham, J.) See Conant v. Columbia county, and that the surro- Wright, 19 Misc. 321 ; 44 N. Y. Supp. gate of the former county had no ju- 727. risdietion to take proof of the will 53 Wms. on Exrs. 489, and cases or issue letters testamentary thereon; cited. — Held, that it was for the surrogate 54 Eoderigas v. East River Savings to determine the fact of inhabitancy, Inst., 76 N. Y. 316. And see Powell before admitting the will to probate, v. Tuttle, 3 id. 396; Keeler v. Frost, and that his decision could not be at- 22 Barb. 400. tacked collaterally. " We do not in- 55 Roderigas v. East River Savings tend by this decision to attack the Inst., supra. principle or to shake the authority of 66 Welch v. N. Y. Cent. R. R. Co., 53 the first Roderigas case {supra), for N. Y. 610; Belden v. Meeker, 47 id. we simply say it is not necessary to 307; Westervelt v. Westervelt, 46 N. here go so far as that case goes." Y. Super. (J. & S.) 298 j § 1081. SUEEOGATES' DeCEEES : 886 facie, the recitals in the record were evidence of the existence of the necessary jurisdictional facts, and that proof of want of juris- diction, outside the record, was only admissible where there was no record of any proof of such facts having been adduced before the surrogate, or where evidence was offered to show that juris- diction over the parties was not acquired.^^ In other words, if the facts necessary to give the surrogate jurisdiction appear to have been alleged in a duly verified petition or answer used in the proceeding before him, and it also appears that the necessary par- ties were duly cited or appeared, then, " in the absence of fraud or collusion," the jurisdiction is conclusively proved, whenever the question is raised collaterally.^ This rule applies only where the decree is collaterally impeached. It does not, of conrse, apply to a proceeding brought directly for the purpose of revoking or modifying a decree. The surrogate has always had authority to open a decree which he had nO' power tO' make,"* or which was entered by default, in consequence of a mistake or accident de- priving a party of a hearing.*" 57 Substantially the same rule is now declared by statute, -which provides that " where the jurisdiction of a Sur- rogate's Court to make, in » case specified in [section 2472 of the Code] a decree or other determination, is drawn in question collaterally, and the necessary parties were duly cited or appeared, the jurisdiction is pre- sumptively, and, in the absence of fraud or collusion, conclusively, es- tablished, by an allegation of the ju- risdictional facts, contained in a writ- ten petition or answer, duly verified, used in the Surrogate's Court. The fact that the parties were duly cited is presumptively proved, by a recital to that efifect in the decree." (Co. Civ. Proc, § 2473.) As to proof ali- unde the record, see Van Deusen v. Sweet, 51 N. Y. 378; Hard v. Ship- man, 6 Barb. 621, 625. A surrogate should not allow his record proceed- ings before him to be impeached by affidavits. (Matter of Luce, 17 Week. Dig. 35. ) A writ of prohibition should not be granted to restrain a surrogate from taking proof of a will where the petition for proof stated the facts nec- essary to confer jurisdiction, but ob- jection was thereafter made that de- cedent was a resident of another county. The presentation of the peti- tion gave the surrogate jurisdiction of the subject-matter, and the objection raised an issue which the surrogate had power to determine as incident to the subject-matter, and his decision if erroneous could be reviewed on appeal, but not assailed collaterally. (People V. Surrogate of Putnam Co., 36 Hun, 218; 16 Abb. N. C. 241.) Beams v. Gould (77 N. y. 455) was a decision under L. 1870, c. 359, now abrogated. B8 Harrison v. Clark, 87 N. Y. 572 ; Kelly V. West, 80 id. 139; Beams v. Gould, 77 id. 455. For illustrations, see Matter of Harvey, 3 Redf. 214; Sheldon v. Wright, 5 N. Y. 497 ; Far- ley V. McConnell, 52 id. 630; aflFg. 7 Lans. 428 ; Vanderpoel v. Van Valken- burgh, 6 N. Y. 190; Matter of Kellum, 50 id. 298; Colton v. Ross, 2 Paige, 396 ; Beers v. Shannon, 12, Hun, 161 ; Howard v. Moot, 64 N. Y. 262; aflfg. 2 Hun, 475 ; Wetmore v. Parker, 52 N. Y. 450; affg. 7 Lans. 121; Jackson V. Robinson, 4 Wend. 436; Sullivan v. Fosdick, 10 Hun, 173; Johnston v. Smith, 25 id. 171. 59 Vreedenburg v. Calf, 9 Paige, 128; Campbell v. Logan, 2 Bradf. 90; Kerr v. Kerr, 41 N. Y. 272. See Melcher v. Stevens, 1 Dem. 123. «0Co. Civ. Proc., § 2481, subd. 6 Pew V. Hastings, 1 Barb. Ch. 452 Harrison v. McMahon, 1 Bradf. 283 Dobke V. McClaran, 41 Barb. 491. And see ante, § 1077. The power of the surrogate under Co, Civ. Proc, § 2481, 887 Theie Effect and Enfoecement. §§ 108-2, 1083. § 1082. Jurisdiction of parties.^ Though the court had juris- diction of the subject-matter, its decision binds only those who were properly before it^ either actually or constructively, and this ground of objection to the decree may be taken in any proceeding where it is brought in question. The adjudication by the surro- gate is conclusive as to all strangers, and as to all parties in interest who were before the court upon the adjudication ; and citation or appearance of the necessary parties is presumptively proved by a recital to tiiat effect in the decree. But a decree is not absolutely void because all the necessary parties were not cited or did not appear. Thus, where the surrogate had jurisdiction of the sub- ject-matter before him, but subsequently discovered persons in- terested, who were entitled to, but did not have, notice, because their existence was denied by the petition, his decree was held not void, but only inoperative as to the interest of those not served.®' It should be remarked here, however, that while juris- diction of the subject-matter once acquired is retained throughout all the proceedings, from the time letters are issued to the final distribution of the residue, and, in this view, the record is a con- tinuous record; yet^ in respect to the jurisdiction of persons, the rule is, that it must be acquired anew in each particular proceed- ing which is to divest any title or change the character of the title, or ascertain and settle the respective rights of the persons interested. The failure to give the notice required by law, in any such case, to the persons interested is not (as in proceedings at common law where jurisdiction has once been acquired) a mere irregularity which can be corrected on motion. § 1083. Irregularities and omissions not jurisdictional It has always been held that mere irregTilarities in the proceeding could not be urged in a collateral proceeding, and this rule has been de- clared by the Code of Civil Procedure ; which provides, that " an objection to a decree or other determination^ founded upon an omission therein, or in the papers upon which it was founded, of the recital or proof of any fact necessary to ji^risdiction which actually existed, or the failure to take any intermediate proceed- " to open, vacate, modify or set aside, of Cohoes, 74 N. Y. 387 ; Matter of or to enter as of a former time, a Tilden, 98 id. 434.) decree or order," is limited to cases 61 Bailey v. Stewart, 2 Eedf. 212. of " fraud, newly-discovered evidence. And see Brick v. Brick, 66 N. Y. 144. clerical errors, or other sufficient A surrogate's decree having been ad- cause." And the words " other suf- judged void, by the Supreme Court, ficient cause " must be interpreted to it is superfluous for the surrogate to mean causes of like nature with those vacate it. (Matter of Espie, 2 Redf. specifically named. (McGaffin v. City 445.) §1084. Stjeeogates' Decrees: 888 ing required by law to be taken, is available only upon appeal. But, for the better protection of any party, or other person in- terested, the Surrogate's Court may, in its discretion, allow such, a defect to be supplied by amendment." ®^ Thus irregularities in serving the citation,®* or omission to take a bond with two or more sureties,®* or in the proper penalty,®^ are not jurisdictional defects, exposing the proceeding to collateral impeachment. So the manner prescribed by statute of exercising a power is not juris- dictional, except in respect to statutory prescriptions as to the mode of acquiring jurisdiction. As a regulation of practice, when the surrogate has acquired jurisdiction, a statute is modal, and does not affect the power of the officer. '® Neither a literal nor technical construction, inconsistent with the general purpose of the law or well-established principles affecting the administration of estates and the operation and execution of wills, should be given to the statutes which only affect the mode of procedure in the Surrogate's Court. TITLE SECOND. PEOCEBDIIirGtS TO ENFOECE DECEEES UNDEE THE EEVISED STATUTES. § 1084. Remedy by attachment and execution against the person A decree or order may award a sum of money to be paid by a party, into court or to some person, or it may direct the performance of some other act. The methods of enforcement under the present Code differ in these two classes of cases; as they did, also, under the former statutes.®^ To throw light upon the changes made by the scheme adopted in the Code, it will be useful to examine the mode of enforcing decrees and other determinations of Surrogates' Courts under each system. Before the adoption of the Code of Civil Procedure, the surro- gate had power to enforce all lawful orders, process, and decrees of his court, by attachment against the persons of those who neg^ lected or refused to comply with such orders and decrees, or to 62 Co. Civ. Proc, § 2474. This sec- does not render the order void. (Mun- tion is an adoption of L. 1870, c. 359, dorff v. Wangler, 44 N. Y. Super. [J. § 1, which limited the rule, however, & S.] 495.) to the Surrogate's Court of New York 66 Hartnett v. Wandell, 60 N. Y. county. 346; aflFg. Alexander's Will, 16 Ahb. 63 Wetmorev. Parker, 52 N. Y. 450; Pr. (N. S.) 9. Pryer v. Clapp, 1 Dem. 387. 67 The rules established by the Code 64 Bloom V. Burdiek, 1 Hill, 130. apply, by its terms, only to a special 65 Lawrence v. Parsons, 27 How. Pr. proceeding commenced on or after the 26. Mere error in the amount di- 1st day of September, 1880. (Co. Civ. reoted to be paid by an administrator Proc, § 3347, subd. 11.) 889 Theie Effect and Enfokcement. § 1084. execute such process; which attachments were required to be in form similar to that used by the court of chancery in analogous cases.^ 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.^® This power was not derived from the Statute of Contempts applicable to courts of record,^" but existed independently of it. Certain sections of the Statute of Contempts were, it is true, applicable to proceedings in a Surro- gate's Court ;''^ 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 contempt, for mere nonpayment of money adjudged due by a decree, and then com- mit for the nonpayment of the fine.'^^ The power was that of chancery, 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 and 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 person charged, and ke©p him in custody until he paid the money or performed the other acts specified. It was proper that the warrant, as well as the rule or o»der, should show the failure to pay, or do the other act required ; but this was not re- garded as essential, if it appeared by the'other proceedings.''^ It was settled that, on a settlement of accounts, the surrogate had power to adjudge 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.''* This question, whether a person taken under final process, for nonpayment of money adjudged due by a decree, was to be deemed committed for 68 2 E. S. 221, § 6, subd. 4 ; Dun- Tl Watson v. Nelson, supra. ford V. Weaver, 84 N. Y. 445 ; 21 Hun, 72 lb. 349. 73 Seaman v. Dury«a, 10 Barb. 536 ; 69 Seaman v. Duryea, 11 N. Y. 324. affd., 11 N. Y. 324. 70 Matter of Watson, 5 Lans. 466; 74 See Watson v. Nelson, 69 N. Y. s. c. in Ct. App., Watson v. Nelson, 536, 545; Seaman v. Duryea, 11 id. 69 N. Y. 536; Seaman v. Duryea, 10 324. Barb. 532. § 1084. SUKEOGATES' DECREES: 890 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,i left in doubt by the authorities.^' 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 de- pend 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.'^® 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 liberties. And it was, at length, explicitly declared that where the surrogate's decree, rendered against an executor, ad- judged payment by him of a sum of money generally, to a person entitled to a share of the estate, and he failed to pay it, the proper process was an execution against the body, in the form prescribed by the Court of Chancery, upon which the defendant was entitled to the jail liberties." And if the payment of money generally was directed " by an interlocutory order, a precept of commitment, which was equivalent tO' an execution in a civil action," was the appropriate process, and the defendant would be entitled to the jail liberties thereupon.'^^ The remedy, by process in the nature of 75 See Matt^ of Watson, 5 Lans. the latter was authorized to impose 466. upon the former a fine, and commit 76 People V. Cowlcs, 3 Abb. Ct. App. him to close custody for nonpayment Dec. 507 ; which was the case of a, re- thereof ; and, it was held, that an ad- fusal, by a judgment debtor, to obey ministrator might be committed to an order made in supplementary pro- close custody upon an attachment for ceedings, that she apply, to the satis- disobedience to a decree requiring him faction of a judgment, a sum of money to pay over a fund shown to be in his belonging to her, which it was duly possession. In that case, on the re- found that she had in her ppssession. turn of the attachment, the adminis- 77 Watson V. Nelson, 69 N. Y. 536. trator appeared, and, in answer to in- 78 lb. The adjudication, m this terrogatories, alleged that he had the case, was that the appellant had no fund in hand, but had not paid it standing in the Court of Appeals, over pursuant to the decree, because whereupon the appeal was dismissed; there were rival claimants to it. From but the court took occasion to express the language of the opinion of the its opinion upon the merits, as above. Court of Appeals, in Watson v. Nelson In People v. Marshall ,7 Abb. N. C. (supra), it does not clearly appear 380 ) , the rule, indicated by the Court that the aggrieved party was not en- of Appeals, as above stated, was ex- titled to an attachment to bring the plained to be that a mere failure, on delinquent before the court, but it was the part of a representative, to pay a said that a commitment to close cus- deht adjudged due by a surrogate's tody was improper. The court re- decree, was not a contempt for which marked, " We must hold the form of 891 Their Effect and Enfokcement. § 1085. 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. § 1085. Remedy by action on the bond. — On the other hand, orders and decrees for the payment of money might be enforced by execution, and by action upon the official bond of a defaulting representative, as well as by attachment, — the remedy by at- tachment, and that by execution or action on the bond, being dis- tinct.™ Where a party elected to proceed, in the first instance, by ccmmitment to have been unauthor- ized." But, in Matter 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 nonpayment of money adjudged to be paid by a de- cree, saying : " If the petitioner shall be able to show that the executor actu- ally, and not constructively, had suf- ficient funds in hand, applicable to the payment of petitioner's allowance, at the date of decree, then he will have a prima facie case for attachment for cortempt, and only then." TO 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 ad- ministrator's bond, was the refusal of the executor or administrator to make and return an inventory, and his con- sequent removal (2 E. S. 85, § 21); though it was also provided that obe- dience to an order requiring an execu- tor or administrator to render an ac- count might be enforced in the same manner as an order to return an in- ventory, 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 de- fault in rendering an account. With a view, apparently, of remedying the deiect, the Legislature immediately passed an act (L. 1830, c. 320, § 23) providing that, in case of the neglect '^r refusal of an administrator to per- form any decree " for rendering an ac- count, 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. 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 fur- nished, for disobedience to an order for the payment of money, by permit- ting the docketing of such order in the county clerk's office, and the issue of execution thereon, and authorizing, in case of its return unsatisfied, an ac- tion on the bond. (L. 1837, c. 460, § 65; L. 1844, c. 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 ac- count, 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 in- ventory; 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 paymert of money. He might, on proof of the nonpayment as directed by the decree, apply to the surrogate for an order that the bond be prose- cuted as provided by the statute of §§1086,1087. StJBE,OGATEs' Decrees: 892 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 proce;edings 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 prose^- cuted ; and he was required to apply the moneys collected, in satisfaction of the decree, in the same manner as they ought to have been applied by such executor or administrator.*" § 1086. Execution against property — Where the party elected to proceed by execution, in case of nonpayment, before proceeding against the sureties, he might apply to the surrogate for a certifi- cate, stating the amount of the debt and costs directed to be paid by the decree. This certificate, being filed with any county clerk, was entered on the docket of judgments, and was enforceable by execution, as if it were a judgment of the County Court. *^ If the execution was returned unsatisfied, the surrogate might assign the bond to the creditor or applicant, who could bring an action in his own name, as assignee, and recover the amount awarded him by the surrogate's decree.®^ This remedy might be had against guardians.*^ , § 1087. Action on the decree. — 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 be barred by the Statute of Limitations, unless commenced within six years, as the court was not a court of record.** 1830 {supra) ; or he might, under the own name, as assignee of the bond, statutes of 1837 and 1844 {supra), and recovered only what was due to file the decree in the county clerk's him. (Baggott v. Boulger, 2 Duer, office, and issue an execution thereon, 160.) and then, in case of its return unsatis- 8*2 R. S. 116, § 19a, inserted by L. fled, he might apply to the surrogate 1830, u. 320, § 23. to have the bond assigned to him for 81 L. 1837, c. 460, §§ 63, 64. the purpose of being prosecuted. 82 See Baggott v. Boulger, 2 Duer, These remedies were cumulative, and 160; Thayer v. Clark, 4 Abb. Ct. App. it was discretionary with the party Dec. 391. whether he would proceed, in the first 83 2 R. S. 152, § 9. instance, by execution on the decree, 84 PaiT v. Kinney, 1 Bradf. 1, where or immediately by action on the bond, it was held, that the court, not being If the latter course was adopted, the a court of record, although its decree action on the bond was instituted in would form the basis of an action at the name of the people, under the di- law, yet a suit on it, unless brought rection of the surrogate, by whom the within six years, was barred by the moneys collected were to be applied. Statute of Limitations. But see, now, (People v. Townsend, 37 Barb. 520; upon this point, Co. Civ. Proc, §§ 376 People v. Laws, 3 Abb. Pr. 450.) In and 382, subd. 7. the other case, the party sued in his 893 Theik Effect and Enfoecement. §§ 1088-1090. TITLE THIRD. PEOCEEDINGS TO BITFOECE DECEEES UNDEE THE CODE. § 1088. Different kinds of orders — The adjudications made or entered in writing by the surrogate, in proceedings before him, are either intermediate orders, or decrees — also termed final orders. It is essential to their validity that they should be signed by the surrogate f^ and it is required that they be recorded in the proper books.^® The final determination of the rights of the par- ties to a special proceeding in the Surrogate's Court is styled, in- differently, a final order or a decree.*'' A direction of the court, made or entered in writing, and not included in a decree, is styled an order.** § 1089. Enforcement of intermediate or interlocutory orders. — It is provided that any order, other than a final order or decree, may be enforced in like manner as a similar order, made by the Supreme Court in an action; and the costs are the same as upon such an order, and may be collected in like manner.*® The surro- gate has power to punish any person for a contempt of his court, civil or criminal, in any case where a court of record may punish a person for a similar contempt, and in like manner. ®° § 1090. Order for costs.— Motion costs awarded cannot be col- lected by contempt proceedings, but the order awarding them may 85 MoNaughton v. Chave, 5 Abb. N. writ of certiorari, in this case, the C. 225. order was reversed and the prisoner 86 See Co. Civ. Proc, § 2498. was discharged on the ground that the STCo. Civ. Proc, § 2550. For what commitment was defective. (People are orders and what final decrees, see ex rel. Jones v. Davidson, 35 Hun, Matter of McMaster, 16 St. Rep. 240; 471.) The refusal of one of the ac- 14 Civ. Proc. Rep. 195. counting trustees, on the hearing, to 88 Co. Civ. Proc, § 2556. answer questions put to him, in behalf 89 Co. Civ. Proc, § 2556. of a beneficiary, for the purpose of 90 Co. Civ. Proc, § 2481, subd. 7. showing impropriety of an investment, See Matter of Odell, 6 Dem. 344. For as to which no specific objection has the proceedings to inflict such punish- been filed, is not a contempt punish- ment, see Co. Civ. Proc, § 2266 et seq. able as such. (Robert v. Morgan, 4 Thus he has jurisdiction to impose a Dem. 148.) A representative who fine upon a witness committed for con- fails to appear as directed, and show tempt in refusing to testify, not ex- cause why a collateral inheritance tax eeeding the amount of costs and ex- should not be imposed upon the estate, penses, and $250 besides. (Matter of is punishable as for a contempt. Jones, 6 Civ. Proc. Rep. 250.) On (Matter of Pelton, 32 St. Kep. 924.) appeal from the order dismissing a 1091. SUEEOGATES' DeCEEES : 894 be enforced by execution®^ or a stay of proceedings.®^ But pay- ment of costs awarded against a party by final decree, e. g., a de- cree granting probate, may be enforced by attachment.®^ § 1091. Enforcement of decrees or final orders. — As regards the method of enforcement, decrees may be divided into such as di- rect (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 county of the State, and thereupon it becomes a lien upon the real property of the debtor in that county, in like 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, sup- si Matter of Lippincott, 5 Dem. 299. "A person shall not be arrested, etc., for the nonpayment of costs awarded otherwise than by a final judgment or a final order made in a special pro- ceeding instituted by State writ, ex- cept where an attorney, counselor, or other officer of the court, is ordered to pay costs for misconduct as such, or a witness is ordered to pay costs on an attachment for nonattendance." (Co. Civ. Proc, § 15.) Where the leave granted is to issue execution against decedent's real property, the provision of Co. Civ. Proc, § 2552, making " an order permitting a judg- ment creditor to issue an execution," etc., conclusive evidence of assets, is inapplicable; but if the administrator is directed to pay costs, which he omits to do, he is guilty of disobedience to a decree directing the payment of money, — which is conclusive evidence of as- sets, under that section, — and he is amenable to commitment. An admin- istrator, in such a case, by alleging that he has no assets of the estate, shows no cause why he should not be punished for disobedience; for non constat that he has not squandered the same. Co. Civ. Proc, § 15, does not protect him from arrest for nonpay- ment of such costs. (Gillies v. Kreu- der, 1 Dem. 349.) 92 See Co. Civ. Proc, § 779. In Seo- field V. Adriance (2 Dem. 486), the surrogate held that section 779 did not apply to Surrogates' Courts, but the same surrogate held otherwise in the subsequent case of Matter of Lip- pincott (5 Dem. 299). See Co. Civ. Proc, § 2556. 93 In Matter of Dillon (N. Y. Law J., April 1, 1892 ) , it was held, that in the absence of a direction in the de- cree that the executor pay the costs, he could not be punished for contempt. "An order may be presented directing the executor to pay the costs awarded to the special guardian by the decree admitting the will to probate. Should the executor fail to obey this direction, an application may then be made to punish him for contempt, when his liability will be determined. The in- solvency of the estate will be no de- fense to such an application, as the special guardian's claim is preferred as an expense of administration; and if there are available assets, the exec- utor must apply the same to payment thereof." Where an executor is di- rected by a decree admitting a, will to probate, to pay a certain sum therein awarded as stenographer's fees, he may set up the nonexistence of assets as a reason why he should not be punished for contempt in disobeying the decree. (Matter of Davidson, 5 Dem. 224; Matter of Monell, 28 Misc. 308; 59 N. Y. Supp. 981.) Failure to pay an amount allowed a special guardian by and under a decree is punishable. (Matter of Kurtzman, 2 St. Eep. 655".) 895 Theie Effect and Enfoecement. §§ 1091a, 1092. plementary proceedings may be instituted as in an action, or steps may be taken to punish the delinquent for contempt ; and, if he is an executor, administrator, or guardian, the issuing of an execu- tion is not a necessary preliminary to the contempt proceedings. Finally, if the debtor is an official who has given a bond, an ac- tion thereupon may be maintained pari passu with, or in lieu of, any of the foregoing 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 required to obey it,®* and thereafter punishing him for contempt if he " refuses or willfully neglects to oiey it." 3. As to a decree of the third class, the methods of enforcement mentioned under the two foregoing heads are respectively ap- plicable to its different portions. It is proposed to discuss these propositions in detail. § 1091a. -Docketing decree for money — Where a decree directs the payment of money into court or to a person designated, the surrogate or the clerk is required to furnish a transcript, which may be filed in the county clerk's office, and docketed in the ap- propriate docket-book of judgments; and such docketing has the same force and effect, and the lien thereof may be suspended or discharged, and the decree may be assigned or satisfied, in the same manner and with like effect as a judgment.®'^ This provision, as to satisfying decrees, applies to all decrees, whether docketed or not ; they must be satisfied as if they were judgments.®® § 1092. Money decree enforced in first instance by execution — Where the decree directs the payment of money, by a person other than a delinquent representative, guardian, or trustee,®'' the party »4 Sudlow V. Pinckney, 1 Dem. 158. that the satisfaction of such a decree 95 Co. Civ. Proc, § 2553; ante, § 696. is now to be evidenced in like manner Like the corresponding provision of as an ordinary judgment, thus super- the original statute, the section quoted seding the necessity for a surrogate'is is obviously intended to give a means certificate, above mentioned, of securing and enforcing payment of 96 Matter of Wilcox, 1 Misc. 55 ; 21 the decree; and the docketing does not N. Y. Supp. 780. An administrator take from its character as a decree of may maintain an action in equity to the Surrogate's Court, nor interfere have a decree against his estate de- with an appeal therefrom as such elared satisfied, and to recover his ad- (Davies r. Skidmore, 5 Hill, 501. See vances made to the person in whose Co. Civ. Proc, § 2684) ; but the ruling favor the decree was made. In this that the creditor, under the decree, manner he may get the benefit of his may pursue a remedy by execution, counterclaim for matters of which the and by attachment against the person. Surrogate's Court could not take cog- simultaneously (Townsend v. Whitney, nizance. (Barker v. Laney, 7 App. 75 N. Y. 425; aflfg. 15 Hun, 93), seems Div. 352; 40 N. Y. Supp. 66.) to be abrogated. It will be observed 97 Co. Civ. Proc, § 2555, subd. 4. §1093. SuKKOGATEs' Deceees : 896 in wkose favor it is made must proceed, in the first instance, by an execution against the debtor's property, in analogy to the method of enforcing an ordinary money judgment.®^ The Code provides that a decree, directing the payment of money, 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 all other respects, the provisions of the Code, relating to an execution against the prop- erty of a judgment debtor, issued upon a judgment, and the pro- ceedings to collect it, apply to an execution issued from the Surro- gate's Court, and its collection;*^ the decree being for that pur- pose regarded as a judgment, except that the proceedings supple- mentary to an execution, " if founded upon such a decree, must be taken as if the decree M^as a judgment of the County Court, or, in the city of ISTew York, of the Supreme Court. ■* Unless the de- cree has been docketed, the execution is irregular and. will be set aside.^ § 1093. Decrees enforced by proceedings for contempt. — Where a decree directs the performance of an act, other than the payment of money; or where an execution against property on a money decree has proved unavailing, i. e., is returned unsatisfied ; or where the debtor is a representative or guardian, and the surro- gate deems it proper to do so ; the enforcement may be by serving a certified copy on the party required to pay or perform, and 98 Matter of Dlssosway, 91 N. Y. a new date for the starting of the five- 235 ; Union Trust Co. v. Gage, 6 Dem. year limitation on the issuing of an 358; People v. Riley, 25 Hun, 587. execution. 99 In People ex rel. Sackett v. Wood- l Co. Civ. Proc, § 2554, as amended bury (70 App. Div. 416; 75 N. Y. 1895. Execution issues, of course, and Supp. 236), it was held, that a decree leave of the surrogate is not necessary, finally settling an administrator's ac- (Joel v. Eitterman, 2 Dem. 242; Pey- count, and directing him to pay a cer- ser v. Wendt, id. 221.) See Matter tain sum to a distributee, or to the of Dissosway, 91 N. Y. 235. It is only Surrogate's Court, being within the in oases of judgments entered in other cognizance of that court, and a final courts, against the representatives, determination of the rights of the that the surrogate's leave to issue ex- parties, was within the statute, and ecution is necessary. See § 677 et was governed by section 1377, requir- seq., ante. ing that, after the lapse of five years 2 Dissosway v. Hayward, 1 Dem. 175. from the entry of a jvidgment, notice See Co. Civ. Proc, § 1365. An execu- of an application for execution thereon tion issued upon a surrogate's decree, must be served on the adverse party, directing an executor to pay a legacy, and, therefore, mandamus would not is not open to objection because it lie to compel the surrogate to issue runs against the executor personally, execution thereon before the service of (Peyser v. Wendt, 2 Dem. 221; Mat- such notice. It was also held in that ter of Waring, 7 Misc. 502; 28 N". Y. case, that the docketing of the decree Supp. 393; Matter of Quackenbos, 38 with the county clerk did not establish Misc. 66. ) 897 Theie Effect and Enforcement. § 1094. thereafter, in case of refusal or willful neglect to obey it, " by punishing him for a contempt of court." The provision of the Code applies to a portion of, as well as to an entire, decree.^ Where t;he service of a certified copy of the decree is ineffectual, and resort is had to contempt proceedings, they are obviously to be conducted in the manner prescribed in the Code, with respect to " proceedings to punish a contempt of court, other than a crim- inal contempt." * It is not within the scope of this work to give the details of the practice, where such a course is pursued, but it is important to note what provision is made for final process against the person of one against whom a decree has been rendered in a Surrogate's Court. § 1094. Final process against the person — There is no provision in the Code authorizing the issuing of an execution against the person, upon a surrogate's decree. As already noted, " an execu- tion against the property" is allowed upon a duly docketed de- cree for money, and this may be followed by supplementary pro- ceedings; but where the person is proceeded against, the method prescribed is by service of a certified copy of the decree on the person against whom it is rendered, and thereafter, " by punish- ing him for a contempt of court." An execution against property having been returned unsatisfied,^ if the court is satisfied, by afiidavit, that a personal demand has been made, and that pay- ment has been refused or neglected, it may issue, without notice, a warrant to commit the offender to prison, until the sum of money and the costs and expenses of the proceeding are paid, or until he is discharged according to law.^ 3 Co. Civ. Proc, § 2555, subds. 1-4. ville, 154 N. Y. 115; 47 N. E. 1086; The proceeding by attachment, under Matter of Feehan, 36 Misc. 614; 73 the Revised Statutes, was superseded N. Y. Supp. 1126.) by this section, under which a surro- 4 Co. Civ. Proc, § 2266 et seq. gate may by order punish for contempt 5 Except in the case provided for by a refusal or wilful neglect to obey his Co. Civ. Proc, § 2555, subd. 4. While decree; and the section applies to the the surrogate may enforce a, decree case of an executor whose trust was directing the payment of money under created, and whose wrongful acts in subdivision 4, by contempt proceedings, the trust were done before this statute without an execution, it is discretion- went into operation, but who was ary with him whether or not to require called to account thereafter. (Matter an execution to be first issued against of Snyder, 34 Hun, 302; 103 N. Y. the executor's property ; and ordinarily 178.) On this point, see Underbill v. that course should be pursued. (Mat- Nichols, 4 Eedf. 318; Woodhouse v. ter of Kellinger, 2 McCarty, 68.) Woodhouse, 5 id. 131; Joel v. Ritter- « Co. Civ. Proc, § 2268. A demand man, id. 136. Noncompliance with a upon an executor to pay " the balance surrogate's decree directing the pay- due on a decree, and for costs," is in- ment of costs only is not punishable sufficient as a, foundation to punish as a contempt. (Matter of Humfre- the executor as for contempt in failing 57 § 1095. Subrogates' Decrees : 898 § 1095. Order to show cause, etc. — Ordinarily, however, an or- der to show cause, or a warrant of attacliment,'' will be issued as a preliminary, and a hearing will be had.® Thereupon, if the de- cision is adverse to the executor, the court must make a final order, directing that he be " punished by fine or imprisonment," or both, as the nature of the case requires.® The case supposed is within the section of the Code which requires the court to im- pose upon the offender a fine sufficient to indemnify the aggrieved party, ^^ and imprisonment is to follow until the fine is paid.-''' It is not sufficient, to protect the party against proceedings and punishment under this section, to show that an action may, on ' general principles, be maintained for the same cause, but it must be shown to be a case where the law has specially prescribed an action as the means of redress.-'^ And if he shows that an appeal will be taken from the decree, which may result in a reversal, he should not be punished until the time to appeal has expired.-'^ And the delinquent will not be allowed to excuse nonpayment, by to pay such balance. (Matter of Fee- trustee has been adjudged to be guilty ban's Estate, 36 Misc. 614; 73 N. Y. of a contempt, because of a failure to Supp. 1126.) pay over moneys received by him as ^ Co. Civ. Proc, § 2269. trustee, pursuant to an order made 8 Go. Civ. Proc, § 2280. Appearance upon an accounting, the court may im- by an attorney is equivalent to a per- pose as a fine the amount which he has sonal service of the order to show received and failed to pay, and direct cause. (Austen v. Varian, 16 App. him to be imprisoned until he shall Div. 337 ; 44 N. Y. Supp. 599.) An pay the fine. (Matter of Morris, 45 executor cannot be regularly adjudged Hun, 167.) In that case, the order in contempt for failure to make pay- adjudging the trustee guilty of oon- ment as required by a decree settling tempt because of a failure to pay over his accounts, until the time of an ad- moneys, expressly adjudicated that his verse party to appeal from the decree misconduct " was calculated to and has beeUf cut off by the expiration of did defeat, impair,- impede, and preju- thirty days after service of a copy of dice a right or remedy of the peti- the decree and notice of its entry, tioner," and the evidence upon the ref- ( Matter of Kavanagh, 10 N. Y. Supp. erence supported that conclusion; — 899.) Held, suflBcient as an adjudication of 9 Co. Civ. Proc, § 2281. "A war- injury within section 2284. In Mat- rant of commitment must issue accord- ter of Snyder ( 34 Hun, 302 ) , the ex- ingly " ( lb. ) ; except that where the ecutor was adjudged to be in contempt proceeding is by order to show cause, for refusing to pay over moneys as instead of by warrant of attachment, airected by the decree on his aocount- the offender may be committed upon ing, and was fined and committed till a certified copy of the order, without p.,yment, it appearing that before the further process. (Id., § 2283.) Upon accounting he had lost in his private appeal the only question is whether the business the funds of the estate, and court had jurisdiction.' (Matter of had conveyed his real property to his Pye, 18 App. Div. 306; 46 N. Y. Supp. wife to be out of the reach of his 350; affd.. 154 N. Y. 773.) creditors. Followed, Matter of Kurtz- 10 Co. Civ. Proc, § 2284. man, 2 St. Rep. 655. 11 Co. Civ. Proc, § 2285 ; Matter of 12 Matter of Morris, 45 Hun, 167. McMaster, 14 Civ. Proc. Rep. 195; s. c 13 Matter of Arkenburgh, 15 Misc. as Matter of Bernhard, 16 St. Rep. 241; 416; 38 N. Y. Supp. 178. Matter of Prout, 19 id. 318. Where a 899 Their Effect and Enfoecement. 1096. a plea of liis prior fraudulent misappropriation of the whole es- tate or fund, and his consequent inability to pay. His neglect to pay, under such circumstances, is a " willful neglect," and is punishable as a contempt.^* § 1096. Discretion of the court. — The extraordinary power, to enforce decrees for the payment of money by punishing delin- quent parties for contempt, should, however, be exercised in con- formity to the liberal spirit of the legislation on the subject of imprisonment for debt.-'^ When the surrogate is asked to imprison for contempt one who is shown to have disobeyed a decree of his court, he is not bound to grant the application as of course, but should grant or deny it in his sound discretion.-^® Although mere 14 Joel V. Ritterman, 5 Redf. 136, and eases supra. 15 Ferguson v. Cummings, 1 Dem. 433. 18 Matter of Battle, 5 Dem. 447 ; 10 St. Rep. 167; 13 Civ. Proc. Rep. 27. In that case, the surrogate cited and applied Cochrane v. Ingersoll, 73 N. Y. 613; Doran v. Dempsey, 1 Bradf. 490; Parke v. Parke, 18 Hun, 466; Stro- bridge v. Strobridge, 21 id. 288 ; Mat- ter of Snyder, 34 id. 332; aflFd., 103 N. Y. 178 ; Baucus v. Stover, 89 id. 1. In Hosack v. Rogers (11 Paige, 603), the chancellor aflBrmed a refusal of the vice-chancellor to enforce by at- tachment his decree against an execu- tor to pay a debt due from the testa- tor, it appearing that the executor had improvidently invested and lost the fund. " But the case might have been different," said the chancellor, " had it been a mere interlocutor/ order di- recting a trustee, who admitted the trust funds to 6e actually in his pos- session, or under his control, to bring the same into court for safe-keeping." In Seaman v. Duryea (11 N. Y. 328), which ivas an action for false impris- onment under a surrogate's attach- ment against a guardian, for neglect to pay the amount found due to the ward on an accounting, it does not appear whether the guardian had the possession of the fund. The decision in this ease is strongly dissented from in Matter of Bingham (32 Vt. 329 [1859]), which held that the decree was strictly a debt, and nothing more. In Doran v. Dempsey ( i Bradf. 490 [1851]), the surrogate refused an at- tachment against an executor, for nonpayment of a legacy (after execu- tion on the decree had been returned unsatisfied ) , it appearing that the ex- ecutor had no means of paying. " The commitment is one which places the party in close imprisonment, and I have certainly no inclination to exe- cute the law in that way, against a person who does not comply with the decree, because he cannot comply with it. Nor do I see that justice or official duty requires me to exercise that power in a case of sheer inability to pay." (lb.) The surrogate did not decide, however, that he had not the requisite power. In Matter of Frear (15 Abb. Pr. 350 [1863]), a guardian, in answer to a motion for an attach- ment against him, for neglect to pay- to the ward a sum decreed, alleged that, since his appointment, he had met with reverses and was insolvent and unable to pay, and, moreover, that the sureties on his bond had not been prosecuted. The surrogate directed an assignment of the bond, for prosecu- tion against the sureties, " and if this prove unavailing to recover the money, I will then entertain the question of an attachment." In Saltus v. Saltus (2 Lans. 9 [1870]), an attachment was issued, although it did not appear that an execution had been issued on the decree. In Matter of Woodhead (1 Tuck. 92 [1868]), the surrogate, though remarking that the court would not punish an innocent inability to pay, with imprisonment, yet held that where an executor had mingled the assets of the estate with his oWn funds, and had so maladministered them as to commit a fraud upon the creditors, he could not plead such in- nocent inability to pay, and a creditor 5§ 1097, 1098. Sueeogates' Deceees : 900 inability to obey such direction at the time it is sought to enforce it should not sufiB.ee of itself to shield the executor from oommit- ment/^ yet if it appears that the case is one in which if the respond- ent were in actual confinement for disobedience to the decree, his application for discharge would commend itself to the court, the court may deny the original application for imprisonment.^* § 1097. Service of attachment. — A warrant of attachment must be directed to the sheriff of the surrogate's county ; and that officer may execute it in any county of the State, and is required to con- vey the person arrested to the place where it is returnable. -"^^ The liability of a sheriff or other ministerial officer for a default in executing or returning a mandate issued by a surrogate, is governed by general provisions applicable to all courts of record,^" and the special provision of the former statute*'' on that subject has been repealed without any other substitute. § 1098. Coanmitment 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 against was entitled to the remedy by attach- ment. In Matter of Timpson ( 15 Abb. Pr. [N. S.] 230 [1872]), the executor admitted that he had converted to his own use the trust funds since the de- cree was made, and the whole was lost, and he had no power to pay. The surrogate granted an attachment. In Eugg V. Jenks (4 Dem. 105), the ex- ecutor was indebted to the testator at the time of his death, and at the time of his accounting was solvent and able to pay the same, but subsequently be- came insolvent and unable to pay the sum found due by the decree, which had never been docketed ; — Held, he could not be punished for contempt in failing w pay the sum so found due, especially where the legatee who sought to enforce the payment was a co-executor who knew that the claim existed simply in the form of the orig- inal indebtedness at the time of ren- dering the account, and permitted the matter to so stand, taking no steps to enforce the decree or even to docket it a,3 a judgment until after the insol- vency. In Matter of Schweibert (25 Misc. 464; 55 N. Y. Supp. 649), the executor was directed to make pay- ment of the distributive share of a minor legatee to his general guardian to be appointed, but no appointment was made for five years, meanwhile the executor made advances to the per- son appointed, for the benefit of the minor, as he had done prior to the decree. Held, upon a motion to pun- ish the executor for contempt on his refusal to pay over, on the ground he had no funds, that he was entitled to be credited with the sums paid, with interest from the date of the guardian's appointment, and should be ordered to pay the balance, with interest from that date. Where an at- torney for an executor knew that a decree against the executor was un- satisfied in part, and procured it to be satisfied of record, the executor will not be punished for contempt unless he was actually privy to such unau- thorized satisfaction. (Matter of Fee- han, 36 Misc. 614; 73 N. Y. Supp. 1126.) 16 Matter of Davidson, 5 Dem. 224 ; Gillies V. Kreuder, 1 id. 349; Mat- ter of Kurtzman, 2 St. Rep. 655 ; Mat- ter of Waring, 1 App. Div. 29; 36 N. Y. Supp. 529, and cases supra. 18 Matter of Snyder, 103 N. Y. 178; 34 Hun, 302 ; Matter of Battle, 5 Dem. 447 ; Matter of Stei'nert, 29 Hun, 301. 19 Co. Civ. Proc, § 2515. 20 Co. Civ. Proc, §§ 100-107. 21 2 R. S. 223, § 9. 901 Theib Effect and Enfoecement. 1098. tlie person, in tie form prescribed by tbe court of chancery, upon ■which the defendant was entitled to the jail liberties.^ And this rule is followed in proceedings under the Code of Civil Procedure.^ The sheriff has no right to release the person in custody, except on his giving an undertaking as provided in section 2277 of the Code.^* 22 Watson V. Nelson, 69 N. Y. 536. Compare People v. Cowles, 3 Abb. Ct. App. Dec. 507. See § 1084, ante. 23 Baker v. Baker 23 Hun, 356; Meyers v. Becker, 29 id. 567; People V. Riley, 25 id. 587; Matter of Amer- man, 3 St. Rep. 356. 24 In Matter of Callan (N. Y. Law J., Dec. 8, 1891), 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 oflScers had au- thority 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 re- gard to the money must be settled in another tribunal. CHAPTEH XXII. COSTS IN SURROGATES' COURTS. TITLE FIEST. EULES FORMEELY PEEVAILING. § 1099. Before the Code — Before the adoption of the eighteenth chapter of the present Code, the subject of costs in Surrogates' Courts was involved in great confusion. That act has established uniform, brief, and intelligible rules in respect to the matter. The power of Surrogates' Courts to award costs, like that of other courts, is purely statutory.-^ Neither the common-law courts, nor the chancellor, had any power, independently of the statute, to awaxd costs to be paid by one party to another, or out of a fund in court.^ The Revised Statutes were the first legislation on the subject of costs in Surrogates' Courts.^ § 1100. Costs in contested cases — The statute provided that in all cases of contest before a Surrogate's Court, the court might award costs to the party in the judgment of the court entitled thereto, to be paid to either party by the other, personally, or out of the estate which was the subject of the controversy.* The Code of Procedure had no application to this subject,* and costs in these courts (except in ITew York county) were regulated by the Re- vised Statutes until the adoption of the present Code of Civil Procedure. But the Revised Statutes, while authorizing an award of costs, did not fix the rate, and it was only in 183Y® that the 1 Matter of Bailey, 47 Hun, 477 ; Wend. 363 ; Lee v. Lee, 39 Barb. 172 ; Fernbaeher v. Fernbacher, 4 Dem. 227; Devin v. Patchin, 26 N. Y. 441, 449; Walton V. Howard, 1 id. laS ; Du Bois Matter of Gates, 2 Redf . 144 ; Noyes V. Brown, id. 317; Halsey v. Van v. Children's Aid Society, 10 Hun, Amringe, 6 Paige, 12; Shultz v. Pul- 289. An order awarding costs was ver, 3 id. 182; Burtis v. Dodge, 1 Barb, coram non judice, and void. (Reid v. Ch. 77; Lee v. Lee, 39 Barb. 172; Vanderheyden, 5 Cow. 719.) Devin v. Patchin, 26 N. Y. 441 ; Mat- 4 2 R. S. 223, § 10. And see 2 R. S. ter of Gates, 2 Redf. 144; Matter of 63, § 39, as to award of costs in pro- Mace, 4 id. 325. ceedings to revoke probate on allega- 2 Downing v. Marshall, 37 N. Y. lions. 380. And see Seaman v. Whitehead, 5 gee Devin v. Patchin, 26 N. Y. 78 id. 306. 441. 3 Shultz V. Pulver, 3 Paige, 182; 11 «L. 1837, c. 460, § 70. [902] 903 Costs in Sueeogates' Couets. § 1101, Legislature authorized the taxation of costs at the rate then al- lowed for similar services in the Common PleasJ Costs could not be awarded in excess of the rate thus fixed, nor could allowances be made to a party or to counsel, to be paid personally or out of the estate, even upon the consent of the parties to the proceed- ing;® and if the representative paid allowances thus decreed, the amount would not be allowed him as a credit on his accounting.^ Although the statute gave the surrogate power to award costs, to "be paid " by the other party, personally," yet this power was not exercised against a party who had contested in good faith, and on reasonable grounds, although unsuccessfully.^" In matters of accounting, costs were awarded to the accounting party so far as he was free from fault ; and as to inquiries growing out of al- leged breaches of trust, costs were awarded against him, where the objections were sustained." § 1101. Costs in uncontested cases — Under the Revised Stat- utes, costs could be awarded in " cases of contest " only. Under later statutes, power was given to the surrogate to award costs, in certain cases where there was no contest, as in a proceeding to compel the filing of an inventory, or an account, by a representa- tive, etc., where the surrogate might, in his discretion, charge the representative or guardian personally with the costs.-'^ 7 See 2 R. S. 636, § 27, for Common any party, whether successful or not, Pleas fees. This statute, except with and to as many as, in the surro- reference to Surrogates' Courts, be- gate's judgment, were entitled thereto, came obsolete in 1840. (L. 1840, {Noyes v. Children's Aid Society, 70 c. 386, § 40.) See Western v. Eo- N. Y. 481, disapproving, on this point, maine, 1 Bradf. 37 ; Willcox v. Smith, 10 Hun, 289, and overruling Lee v. 26 Barb. 316; Devin v. Patchin, 26 N. Lee, 39 Barb. 172.) Y. 441; Matter of Gat^s, 2 Eedf. 144. 10 2 R. S. 223, § 10. Thus, it was 8 Halsey v. Van Amringe, 6 Paige, held, that one who found a will which 12; Burtis v. Dodge, 1 Barb. Ch. 77; he was interested to establish, and Noyes v. Children's Aid Society, 10 which he propounded for probate, Hun, 289, and cases supra. In Devin should not be personally charged with V. Patchin (supra), a surrogate had costs of the contestants, though a directed certain amounts to be paid to revocation was shown and probate re- counsel representing different parties, fused. (Matter of Griswold, 15 Abb. by way of allowances for their ser- Pr. 299.) In Matter of Gooseberry vices, in the contest before him for (52 How. Pr, 310), it was held, that letters of administration. On appeal, costs of the establishment, by an ap- though these orders were not appealed plieant for letters of administration, from, the Court of Appeals took oeca- of relationship to the decedent, should sion to notice them, and to declare be allowed, if at all, on the final ac- that they were unauthorized and il- counting. legal, and that Surrogates' Courts were n See Ray v. Van Hook, 9 How. Pr, not the almoners of deceased perspns. 427; Griffith v. Beecher, 10 Baib. 432; 9 Matter of Gates, 2 Redf. 144. In Willcox v. Smith, 26 id. 316; Dunford Willcox V. Smith (26 Barb. 316), it v. Wea\-«r, 84 N. Y'. 445. was held, that costs could be awarded 12 L. 1867, G. 722, § 8. The statute to a party only, and not to his eoun- regulating commissions provided for sel. But they might be awarded to allowance of such sum, for counsel fee §§ 1102, 1103. Costs in Sueeogates' Couets. 904 § 1102. Costs in New York county — In 1870, the surrogate of ISTew York county acquired authority to grant allowances, in lieu of costs to counsel, in any proceeding before him, in the same manner as was then prescribed by the Code of Procedure in civil actions.^^ The only effect of this authorization was to fix the maximum amount which could be allowed in any case, and to prescribe the basis for calculating that amount;" otherwise the rules established under the Revised Statutes continued to govern — e. g., that allowance might be made, in a proper case, to an unsuccessful party. TITLE SECOND. COSTS UNDBE THE CODE SUBDIVISIOlSr 1. AWAED OF COSTS. § 1103. General provisions of the Code, inapplicable The gen- eral provisions of the present Code, in respect to the award and enforcement of payment of costs fixing the amount thereof and giving or compelling security therefor,-'* have no application to on the final accounting, as the surro- executor's accounting, the allowance to gate might deem reasonable. (2 R. S. the special guardian, as well as to the 93, § 38, as amended L. 1863, c. 362, attorneys for the general guardian, § 8.) But this allowance was to be should be paid out of the estate, when made to the accounting party himself ; the other allowances are charged to he was allowed to charge the estate the same. (Gunning v. Lockman, for such counsel fee as he had been supra.) Compare, generally, Down v. obliged to pay, limited, however, by McGourkey, 15 Hun, 444; Hurd v. the rate prescribed by the act. (Sea- Warren, 16 id. 622. On an account- man V. Whitehead, 78 N. Y. 306; ing, at the instance of a creditor, the Noyes v. Children's Aid Society, 70 statutory allowance of 5 per cent, was id. 481.) In Matter of Walsh (1 L. to be computed on the amount of the Bui. 63), it was held, that there was creditor's recovery, not on the amount no precedent for an allowance in lieu of the estate. (Browning v. Vandcr- of costs, — and that no such allowance hoven, 4 Abb. N. C. 166; 55 How. Pr. could be made, — ^ where a creditor ap- 97.) plied, upon citation to the next of kin, 15 Co. Civ. Proc, c. 21, tit. 1-3. A for letters of administration upon the Surrogate's Court has no authority,, estate of an intestate, and the party therefore, to require a party to a cited at once appeared and took out special proceeding therein to furnish letters. security for the payment of his ad- 13 L. 1870, c. 359, § 9. versarjr's costs. (Loesche v. Griffin, 3 1* Gunning v. Lockman, 3 Redf. 273; Dera. 358.) The statute in regard to 4 Abb. N. C. 173. Where several at- giving security for costs (2 R. S. 620), torneys represented the interests of which applied only to courts of record, one infant in a proceeding, it was was held not to apply to the Surro- held, that only one allowance should gate's Court in an application by a be granted to all, and that the amount creditor, etc., to compel the executor should be properly apportioned among to pay out of the fund in his hands them. And although an infant party (Westervelt v. Gregg, 1 Barb. Ch. had a general guardian, yet where a 469) ; and such is still the rule. (Co. special guardian was appointed on the Civ. Proc, § 3347, subd. 13.) So, too. 905 Costs in Sueeogates' Couets. § 1104. Surrogates' Courts.^® Those tribunals are governed, in these par- ticulars, by certain sections applicable only to them, and designed to remove the obscurity and doubt heretofore prevailing upon the subject, while conferring upon surrogates, both in respect to the award and amount of costs, a discretion obviously desirable, in view of the complexity of interests of litigants before them, and the multifarious character of questions', which, from time to time, are presented to them for adjudication. The provisions of the present Code supersede all those above recited, although many of the principles enunciated in the decisions cited have, doubtless, a bearing upon the existing statute.'''' § 1104. Award of costs by intermediate order. — The surrogate may award costs either (1) by an intermediate or interlocutory order, or (2) by a final order, otherwise termed a decree. Where the surrogate makes or enters in writing a direction not included in a decree, i. e., " an order," the awarding or denial of costs thereby is the same in case of a similar order made by the Su- preme Court in an action ;^* in other words, costs may be denied, or awarded either absolutely or to abide the event, to any party, in the discretion of the court. ^® Where awarded, such costs may be collected " in like manner " as if awarded in an action in the Supreme Court.^" Whether a matter is to be determined by an order or by a decree, must of course depend upon the character of the proceeding in which it is required to be made. Thus, the denial of an application to open a decree is properly incorporated with reference to that provision of the Alen, 1 How. Pr. 86 ; Goodenow v. Liv- Code (§ 3278) by which an attorney ingston, id. 232; Taylor v. Gardner, 4 for a plaintiff who may be required to id. 67; Holmes v. St. John, id. 66.) file security, is liable for costs. (Mat- It is held, accordingly, that the regu- ter of Rasch, 26 Misc. 459 ; 55 N. Y. lations of the Code of Civil Procedure, Supp. 434.) as to costs in Surrogates' Courts, ap- l«*Co. Civ. Proc, § 3347, subd. 13. ply to proceedings, though commenced 17 The repeal in 1880 of the Act of before September 1, 1880, where the 1870, giving powers to the surrogate decree was not settled until after that of the county of New York, "to grant date. (Matter of Mace, 4 Redf. 325.) allowance in lieu of costs," given by 18 Co. Civ. Proc, § 2556; Matter of the former act, did not affect a pro- Miles, 5 Redf. 110. ceeding pending at the time the re- 19 See Co. Civ. Proc, § 3236 ; Law- pealing act took effect. (Matter of ton v. Green, 64 N. Y. 326; Concklin Weston, 91 N. Y. 502; overruling Mat- v. Taylor, 68 id. 221. But upon an ac- ter of Sexton, 1 Dem. 3.) See Matter counting, if no objections are filed, of Gray, 27 Hun, 461. It is a general and the account is found correct, no principle, however, that the reco^-ery allowance should be made to counsel of costs is controlled as to items and representing legatees or next of kin. rate of compensation, at least, by the (Osborne v. McAlpine, 4 Redf. 1.) See statutes in force at the time the right Matter of Welling, 5l App. Div. 355; to costs accrues, or at the time of 64 N. Y. Saipp. 1025. taxation. ( Supervisors, etc. v. Briggs, 20 See Co. Civ. Proc, § 2556. See 3 Dem. 173 ; Van Valkenburgh v. Van § 1090, ante. §§ 1105, 1106. Costs in Sueeogates' Couets. 906 in an order, and not in a decree; and the maximum allowance of costs thereupon is ten dolla*s and the necessary disbursements.^^ But an application for leave to issue an execution is a special pro- ceeding, and not a motion; and if the application is contested, the petitioner is entitled to seventy dollars costs, and if uncon- tested, to twenty-five dollars. ^^ § 1105. Order dismissing proceedings. — Where the surrogate dismisses a proceeding by a person interested in an estate or fund, to compel an executor, administrator, or other trustee to renew his official bond, upon a compliance with the demand, he is required to make the decree upon such terms as to costs, as justice re- quires. ^^ But it seems there is no statutory authority to award costs on a dismissal of a proceeding, e. g., for a settlement of ac- counts — for want of jurisdiction of the subject-matter.^ § 1106. Costs on decree or final order. — An award of costs in a decree is in the discretion of the surrogate, except in one of the following cases, in which they are of right, to wit: " 1. Where special directions respecting the award of costs, are contained in a judgment or order, made upon an appeal from the surrogate's determination, or upon a motion for a new trial of questions of fact tried by a jury ; in either of which cases costs must be awarded according to those directions. " 2. When a question of fact has been tried by a jury ; in which case, unless it is within the foregoing subdivision, the decree must award costs to the successful party. " 3. When the decree is made upon a contested application for probate or revocation of probate of a will, costs, payable out of the estate or otherwise, shall not be awarded to an unsuccessful contestant of the will, unless he is a special guardian for an in- fant, appointed by the surrogate, or is named as an executor in a paper propounded by him in good faith as the last will of the decedent; but the surrogate may order a copy of stenographer's minutes to be furnished to the contestant's counsel, and charge 21 Pease v. Egan, 3 Dem. 320. decedent's estate directly to the coun- 22 Matter of Taylor, 8 Civ. Proc. sel of parties litigant; and such a de- Eep. 453. feet in the order is not cured by the 23 Co. Civ. Proc, § 2599. But on a fact that it, in form, granted costs to proceeding to determine whether the the parties and not to their attorneys. bond of an administratrix afforded (Walton v. Howard, 1 Dem. 103, and adequate security to the creditors, etc., cases cited. ) of the estate, the surrogate cannot 24 Bunnell v. Eanney, 2 Dem. 327. award costs or allowances out of the 907 Costs is Sueeogates' Couets. § 1107. the expenses thereof to the estate, if he shall be satisfied that the contest is made in good faith." ^^ § 1107. Special direction of appellate court. — The foregoing first subdivision is to be read in connection with section 2589, which provides that the appellate court, on an appeal from a surrogate's order or decree, " may award to the successful party the costs of the appeal; or it may direct that they abide the event of a new trial, or of the subsequent proceedings in the Surrogate's Court. In either case, the costs may be made payable out of the estate or fund, or personally by the unsuccessful party as directed by the appellate court; or, if such a direction is not given, as directed by the surrogate." This does not mean that, if the ap- pellate court fails to award appeal costs, the surrogate may do so ; but it means that if the appellate court does award costs, and gives no direction whether the same shall be paid out of the estate or fund, or by the unsuccessful party, the surrogate may exercise his discretion in the particulars wherein the appellate court has failed to exercise its own.^* The surrogate has no power to award costs in an appeal proceeding, where the appellate court has re- fused to award them,^^ or has made no direction as to costs.^* 25 Co. Ci^. Proc, § 2558. The sur- is to include costa of such court only, rogate has no power to award costa yet if it assumes to deal with the to a party not before him in the pro- whole subject, and reverses the judg- eeeding. (Matter of Gates, 2 Redf. ment appealed from with costs, that 144.) includes all the costs of all the in- 26 Matter of Hatten, 6 Dem. 444; 17 ferior courts. (Murtha v. Ourley, 92 St. Rep. 774. But the fact that the N. Y. 359; Matter of Hood, 30 Hun, Appellate Division, upon an appeal 472.) An executor who takes an un- from a decree, has charged the costs successful appeal to avoid a personal of that appeal upon the contestants liability may be charged personally personally presents no reason why the with the costs. (Pittman v. Johnson, surrogate should change his original 35 Hun, 38; 15 Abb. N. C. 472.) For award of costs and charge them the rules in regard to costs of appeal, against the contestants personally, under the old Code, before 1862, see (Matter of Seagrist, 8 App. Div. 298; Brookway v. Jewett, 16 Barb. 590; 40 N. Y. Supp. 940.) The question Sherman v. Youngs, 6 How. Pr. 318; whether costs of an appeal should be Willcox v. Smith, 26 Barb. 316 ; Whit- charged upon executors personally or beck v. Patterson, 22 id. 83 ; Van Pelt upon the estate, should be determined v. Van Pelt, 16 How. Pr. 299. And upon motion in the Supreme Court those after 1862, see Morgan v. Mor- wnere the action was brought, and not gan, 39 Barb. 20. And those under upon their accounting before the sur- the Revised Statutes, see 2 R. S. 618, rogate. (Harrington v. Strong, 49 § 35, and Stagg v. Jackson, 1 N. Y. App. Div. 39; 63 N. Y. Supp. 257.) 206. 2T Schell V. Hewitt, 1 Dem. 249. As 28 Matter of Bull, 1 Connoly, 395 ; to costs on awarding a jury trial in a 22 St. Rep. 880. In that case, the probate ease, by the General Term, see proponent was not allowed the costs Sutton V. Ray, 72 N. Y. 482. While and disbursements necessary for the it may be assumed that when an ap- preparation of the appeal, such aa pellate court awards costs, the effect printing the case and points, nor sten- §§ 1108-1110. Costs in Sueeogates' Couets. 908 § 1108. Costs on a new trial — On the grant of probate, on a new trial granted by the appellate court, on appeal from a decree refusing probate, no costs of contest will be awarded for services on the second trial. For the purpose of awarding costs and allow- ances, the former decree will be taken as the basis, and such ad- ditional compensation awarded for services on the new trial as the proof may warrant, and, in addition, the per diem allowance for the trial.^^ § 1109. Jury trials — The second subdivision of section 2558 re- fers to a trial by jury of a question of fact ordered by the surrogate in a proceeding for the disposition of real property to pay debts,^" and not to one ordered by the appellate court, on appeal from the probate decree.^^ The costs of the former proceeding are awarded a preference, in payment, from the proceeds of sale.^^ It will be noted that the appeal, in that proceeding, may ie from an order of the Surrogate's Court, since the surrogate may grant the new trial.^^ § 1110. Proponent's costs on contested probate. — The proponent of a paper for probate, if he is named therein as executor, and takes the proceeding in good faith, is entitled, as of right, to costs, whether the paper is or is not admitted to probate. This, it will be noticed, does not give a proponent, other than the executor, a right to costs in case of a refusal of probate.^* Parties, though not proponents, who, having several interests, appear in support of the will by separate attorneys may be awarded costs.^^ An executor who in good faith, but unsuccessfully, opposes an appli- cation to revoke the probate of the will under which he received letters, and to have admitted to probate an alleged later will, is within the equity of the statute and is entitled to costs. ^^ If the ographer's fees, for minutea ordered Eehron, 55 App. Div. 147; 67 N. Y. for preparing the case on appeal. See Supp. 18.) Matter of Baldwin, 30 Misc. 169 ; 63 28 Matter of Darragh, N. Y. Law J., N. Y. Supp. 727. Where the Appellate Jan. 14, 1890. Division reversed an order of the 30 Co. Civ. Proc, § 2549. surrogate " with costs," simply, the 31 Matter of Bull, supra. surrogate has no power to tax dis- 32 Co. Civ. Proc, § 2793, subd. 4. bursements also. Co. Civ. Proc, The costs, when awarded, are the same §§ 3251, 3256, apply to actions and not as the taxable costs in an action. to a;-ders of the surrogate. (Matter (Co. Civ. Proc, § 2560.) of Steencken, 58 App. Div. 85; 68 N. 33 Co. Civ. Proc, § 2548. y. Supp. 4*4.) So, too, after affirm- 34Collyer v. Collyer,.4 Dem. 53; 17 anee of a decree judicially settling the Abb. N. C. 329. See Matter of Folts, accounts of a testamentary trustee, 71 Hun, 492; 24 N. Y. Supp. 1052. the surrogate has no authority to 35 Matter of Lasak, 1 Connoly, 486; make a decree allowing the trustee 7 N. Y. Supp. 2; 23 Abb. N. C. 54. the expenses of the appeal and attor- 36Bertine v. Hubbell, 1 Dem. 335. neys' fees thereon. (Matter of Mc- 909 Costs in Sueeogates' Couets. §§ 1111,1112. executor named in a paper, either prior or subsequent to the one offered for probate, contests the one so offered, and seeks to defeat the probate, by establishing the will in which he is named, he is entitled to costs, if acting in good faith, though he fail. But such contesting executor who acts as his own counsel in the proceed- ings is not entitled to costs as of right.^^ The application for pro- bate must have been " contested." Where the next of kin, after cross-examination of the witnesses offered by the proponent, with- drew their objections and the will was admitted, the case is not one of contest.^^ § 1111. Special guardian's compensation. — An allowance to a special guardian, who is an unsuccessful contestant of a will of- fered for probate, must be fixed by the surrogate, and inserted in the decree ; and cannot be allowed on ex parte application without notice, after the decree has been entered.^* An allowance for the guardian's attendance before the appellate court, on appeal from a decree to which he is a party, cannot be made by the sxirrogate, in the absence of any direction to that effect by the appellate tribunal.*" § 1112. Costs to contestant in probate proceeding. — While the court may, in its discretion, award costs to an unsuccessful contest- ant, if it find that his contest was in good faith, he is not bound to do so.*-* On the other hand, the contestant may, in the discretion 37 Whelpley v. Loder, 1 Dem. 368, penses of dietation, etc., cannot be al- 382; Allen v. Public Adm'r, 1 Bradf. lowed, for the statute does not author- 221; Arthur V. Nelson, 1 Dem. 337, ize them to be charged upon the estate. 348; Matter of Valentine, 9 Abb. N. Such expenses, if payable at all, can C. 313. be charged only against the property 38 So held under 2 R. S. 223, § 10. of the infant. (lb.; Matter of Farm- (Peck V. Peck, 23 Hun, 312.) ers' Loan & Trust Co., 49 App. Div. S9 Matter of Budlong, 33 Hun, 235; 1; 63 N. Y. Supp. 227.) Where the 100 N. Y. 203. See Forster v. Kane, 1 estate of the infant is not taxable Dem. 67; Matter of Robinson, 160 N. under the transfer tax, no allowance Y. 448 ; Matter of Raseh, 26 Misc. 459. can be made to his special guardian. Sections 2558 (subd. 3), 2559, 2561, (Matter of Post, 5 App. Div. 113; 38 3256, Co. Civ. Proc, limit the amount N. Y. Supp. 977.) of costs and disbursements which may *) Schell v. Hewitt, 1 Dem. 249 ; be awarded to a guardian ad litem. Matter of Bull, supra. And see § 112, even though he has in good faith con- ante. On a settlement of an executor's tested the probate, to $70, and $10 for accounts, an allowance to the guardian each additional day more than two is proper, and must be fixed before days occupied in the trial or hearing, entry of decree; it cannot be changed and the disbursements which may be on appeal. (Matter of Marshall, 19 taxed in an action. (Matter of Tracy, St. Rep. 156.) 18 Abb. N. C. 242; Matter of Rup- « Matter of Mondorf, 110 N. Y. paner, 7 App. Div. 11; 39 N. Y. Supp. 450; Matter of Willett, 6 Dem. 435; 763.) Railroad fares, hotel bills, the 17 St. Rep. 776. fees of associate counsel, and the ex- § 1113. Costs in Surrogates' Courts. 910 of the court, be personally charged with proponent's costs.*^ Whether eostsp awarded in a probate proceeding should be charged personally against the unsuccessful contestants or out of the es- tate of the decedent, rests in the sound discretion of the surrogate, and the rule is that a defeated contestant should be charged with costs where his resistance has been wanton or malicious or clearly unfounded, but not where a resistance is based upon what, from his standpoint, may have seemed proper and necessary in the in- terests of justice, and for the due protection of his rights.*^ If the contest is successful, it is usual to award costs to the contestant, though not as a matter of right.** Several parties interested in contesting the probate have a right to employ separate counsel to protect their several interests, and it is discretionary with the surrogate, as in other courts, to grant costs to the several con- testants.*" § 1113. Contested application for, or revocation of, letters On a contest over a grant of letters of administration, the court has discretion to grant or to withhold costs. Where there is a fair justification for the contest, costs out of the estate may be granted to the unsuccessful contestant;*^ or where there is want of good faith he may be charged personally with the costs.*^ So, where 42 Matter of Whelan, 6 Dem. 425; ter of Kivlin's Will, 37 Misc. 187; 74 Matter of Seagrist, 1 App. Div. 615; N. Y. Supp. 937.) 37 N. Y. Supp. 496; Matter of Low- « CoUyer v. Collyer, 4 Dem. 53. man, 1 Misc. 43 ; 22 N. Y. Supp. 1055. See Hauselt v. Vilmar, 76 N. Y'. 630. *3 Matter of Henry, 5 Dem. 272. In The former statute, which authorized Matter of Taoke (1 Connoly, 119), the the surrogate to award costs "to contest of a will was instituted and the party in his judgment entitled carried on without any reasonable thereto," did not prevent him from grounds by the contestant, instigated awarding costs to more than one party by one G., whose son appeared as at- on a side. (Noyes v. Children's Aid torney for the contestant in the pro- Society, 70 N. Y. 481.) The object of ceeding but took no active part therein, the third subdivision of section 2558 is the proceeding being really conducted stated in the commissioner's note to bv G., who was not a lawyer, and had be " to check the vastly increasing great influence over his young and in- number of cases wherein wills are eon- experienced son, the nominal attorney, tested on slight grounds, the conlest- The contestant was charged with the ants relying, if the estate is large, maximum amount of costs and taxable upon procuring allowance for costs disbursements of the contest. which will indemnify them against the 4* Matter of Munter, 19 Misc. 201; expense of the litigation." 44 N. Y. Supp. 605. See Matter of *6 Matter of Page, 107 N. Y. 266, Bogart, 46 App. Div. 240; 61 N. Y. 271. Supp. 671. But where objections were *7 Matter of Clark, 15 N. Y. Supp. filed without any intent to protect any 370. The right of an estate to recover interest of the contestant, but merely costs charged against a contestant of to cause annoyance to the proponent, the right of administration is not lost and the will would have been refused by their payment out of the estate, by probate without any contest, no costs consent of all parties pending an ap- will be allowed the contestant. (Mat- peal, and execution may issue there- 911 Costs in Suekogates' Courts. § 1114. the reckless and careless conduct of a representative has made the institution of a proceeding for his removal imperative, he should be personally charged with the costs of that proceeding.** But an allowance of costs to both parties in such a proceeding is unwarranted.'*® § 1114. Costs of accoTinting proceeding — The granting of costs to an accounting party, where there is a contest, is discretionary both in respect to indemnity to him, and to charging the estate, or the accounting party personally.^" Where a reference was ren- dered necessary by the failure of his attorney to explain to the special guardian, when so requested by him, items of the account- ing, which were afterward found on the reference to be erroneous, and where the reference had been very much prolonged and de- layed through the neglect of himself and his attorney, the entire cost of the proceeding will be charged upon the accounting party personally. ^^ On the other hand, where objections to an account are filed, not in good faith, the court will charge the costs of the accounting to the objectors personally, and the same will be col- lected by deducting the amount from their respective shares.^^ for, after affirmance. (Matter of Bartlett, 18 Week. Dig. 65.) 48 Matter of Stanton, 1 Connoly, 108. *9 Matter of Engelbreeiit, 15 App. Div. 541; 44 N. Y. Supp. 551. 50 Matter of Collamer, 5 St. Eep. 196. Bl Matter of Williams, 1 Connoly, 99. When executor personally charged with costs. See Ferris v. Disbrow, 22 Week. Dig. 330; Buckland v. Gallup, 40 Hun, 61 ; Ketchum v. Ketchum, 4 Cow. 87; Matter of Woodard, 13 St. Rep. 161; Matter of Matthewson, 8 App. Div. 8; 40 N. Y. Supp. 140; Mat- ter of Gabriel, 44 App. Div. 623. Where there is a dispute as to whether a, particular fund is assets, and deci- sion is made in favor of distributees, the costs of the proceedings are charge- able against the administrator indi- vidually. (Matter of Mull, 16 St. Eep. 1381; Matter of Manhardt, 17 App. Div. 1; 44 N. Y. Supp. 836.) An ad- ministrator is not pei^sonally charge- able with costs because he has been charged with interest on moneys held by him, where he has prepared his ac- count in good faith. (Walker v. Dow, 6 Dem. 265. ) On the settlement of an administrator's accounts, the adminis- trators of decedent's wife, of whose estate decedent had been administra- tor, appearing for the purpose of de- fending decedent's bond, are not enti- tled to costs out of decedent's estate (Matter of Reed, 12 St. Rep. 139) ; nor is the representative of a deceased surety entitled to costs upon the set- tlement of the accounts of the admin- istrator of the principal. (Matter of Bailey, 47 Hun, 477.) The allowance of costs in favor of an administratrix, against the sureties on the bond of her co-administrator, whose misapplica- tion of funds the sureties endeavored unsuccessfully to charge her with lia- bility for, — sustained. ( Matter of Adams, 51 App. Div. 619; 64 N. Y. Supp. 591; affd., 166 N. Y. 623.) The costs of an accounting of an ex- ecutor or trustee who has been re- moved or resigns should be borne by him and cannot be charged against the estate. (Matter of Bevier, 17 Misc. 486; 41 N. Y. Supp. 268.) Where an objection to accounts of ex- ecutors of a deceased guardian was justified, the estate of the infant should not be charged with the costs of the proceeding. (Matter of Frank, 1 App. Div. 39 : s«6 mom. Matter of Schneider, 36 N. Y. Supp. 972; suh. nom. Matter of Metzger v. Schneider, 72 St. Eep. 75.) 62 Matter of Selling, 6 Dem. 428. The surrogate has no authority to § 1115 Costs iit Surrogates' Courts. 912 Where a disputed claim against the estate is submitted to the surrogate for determination, under section 1822, the allowance or disallowance of costs to the claimant is in the discretion of the surrogate ; such discretion is to be exercised within the limits, as to amount, of section 2561, and he is to be controlled by the prin- ciples applicable to actions at law against estates.^^ § 1115. Allowing counsel fees and expenses. — In addition to the surrogate's general power to award costs to a party, the Code pro- vides that he "may, in his discretion, allow to an executor, ad- ministrator, guardian, or testamentary trustee, upon a judicial settlement of his account, or on an intermediate accounting re- quired by the surrogate, such a sum as the surrogate deems rea- sonable, for his counsel fees and other expenses, not exceeding ten dollars for each day occupied in the trial, and necessarily occu- pied^* in preparing his account for settlement, and otherwise pre- paring for the trial. °^ Costs and such per diem allowances for legal services as are necessary will be allowed,®^ but only to the accounting party, and can be properly made to such a party only in so far as the labor of preparation was demanded by the best interests of the estate concerned.^^ The authority given to the grant additional allowances to legatees section 3254, see Riggs v. Cragg, 26 or remaindermen who, on the ac- Hun, 89. counting, have not succeeded in sur- M Matter of Halsey, 13 Abb. N. C. charging the account or securing dis- 353. A per diem allowance for time allowance of items. (Matter of Well- occupied in preparing for trial is only ing, 51 App. Div. 355; 64 N. Y. Supp. allowed in accounting proceedings. 1025.) Costs will be charged person- (Matter of Aaron, 5 Dem. 362.) This ally against the administrator of a allowance is not intended to compen- life beneficiary of a trust fund, in sate him for his personal services, but possession thereof, who raised techni- simply to secure legal assistance. cal objections against the claims of the (Matter of Peyser, 5 Dem. 244.) Costs remaindermen. (Matter of Post, 30 on an accounting can only be allowed Misc. 551; 64 N. Y. Supp. 369.) where counsel is employed. Where 53 Matter of Ingraham, 35 Misc. the accounting party prepares his own 577; 72 N. Y. Supp. 62; Matter of account without counsel, although he Coonley, 38 Misc. 219. is himself a lawyer, he is not entitled M Occupied by whom. See Walton to costs. (Valentine's Estate, 9 Abb. V. Howard, 1 Dem. 103. N. C. 313.) An executor removing 55 Co. Civ. Proc, § 2562, as amended from the State without settling his ac- 1881. See § 559, anie. See Brown's counts is not entitled to an allowance Accounting, 16 Abb. Pr. (N. S.) 457; of his expenses upon returning to do Van Nest's Estate, 1 Tuck. 130; Val- so. (Matter of Nockin, 15 St. Eep. entine v. Valentine, 2 Barb. Ch. 430; 731.) Drake v. Price, 5 N. Y. 430; affg. 5T Matter of Weeks, 5 Dem. 194. In 7 Barb. 388; Holley v. S. G., 4 Edw. that case, two co-executors, who dif- 284. As to what is " a judicial settle- fered respecting matters appertaining ment," see Matter of Miles, 5 Redf. to the execution of their trust, which 110. As to how far the court on ap- might have been satisfactorily pre- peal will reverse a decree which grants sented in one proceeding, filed sepa- an allowance exceeding the limit in rate accounts of their transactions, 913 Costs in Sueeogates' Couets. 1116. surrogate to allow counsel fees and expenses upon rendering his decree, in no way limits his authority to allow as a credit in the account, a sum, in excess of the statutory limit, paid by the ac- counting party to his counsel for services in respect to his account- ing, where it appears that services beyond the ordinary preparation of the account, or for trial', were rendered, and were necessary.^^ The allowance of costs, etc., should be to the party, and not to his counsel or attorney.®* A per diem allowance for time occupied in preparing for trial is permissible only in accounting proceed- ings.^" Such allowance is not intended to compensate the account- ing party for his personal services in such preparation, but is to enable him to secure legal assistance and advice when needed for putting the account into proper form.^' §1116. Costs of decree, how and by whom payable. — "Except where special provision is otherwise made by law, costs, awarded by a decree, may be made payable by the party personally, ^^ or out of the estate, or fund, as justice requires ; but costs, other than actual expenses, cannot be awarded to be paid out of an estate or fund which is less than one thousand dollars in amount or each of which was contested and re- ferred, with substantially the same re- sults that would have been accom- plished had the controversy arisen in respect of the account first filed; — Held, that neither executor nor any of the other parties could recover costs or counsel fees out of the estate in both proceedings. Where an executor has kept his accounts in such an ir- regular and disorderly manner that very many days are required in the preparation of his accounts for judi- cial settlement, in the hearing there- upon the surrogate will only allow him for his expenses in preparing such account upon the basis of the time which would have been required if his accounts had been kept in the proper manner. (Matter of Wilcox, 11 Civ. Proc. Eep. 115, 136.) To same effect, O'Reilly v. Meyer, 4 Dem. 161. 58 Matter of Smith, 26 Abb. N. C. 56; 33 St. Rep. 929; 19 Civ. Proc. Rep. 302; 12 N. Y. Supp. 88. In Mat- ter of Young {N. Y. Law J., Apr. 25, 1891), it appeared from the accounts, supported by vouchers, that the ad- ministrators had credited themselves with $350, or $175 in each case, for general services, including preparation 58 of the accounts. The surrogate al- lowed their disbursements on the ac- counting proceeding, but refused costs. 59 Walton V. Howard, 1 Dem. 103; s. c. as Matter of Withers, 2 Civ. Proc. Eep. 162; McMahon v. Smith, 20 Misc. 305; 45 N. Y. Supp. 663; revd., on other points, 24 App. Div. 25 ; Matter of Crane, 68 id. 355; 74 N. Y. Supp. 88; Matter of Welling, 51 App. Div. 355; 64 N. Y. Supp. 1025. The costs of an accounting by an executor, etc., have no place in the account filed in that proceeding, as they must first be fixed by the decree. Charges for counsel fees, paid on the accounting, should be separately stated and ac- companied with an affidavit showing conformity to Co. Civ. Proc, § 2562. (Hayward v. Hewlett, 5 Redf. 330.) 60 Matter of Aaron, 5 Dem. 362. «l Matter of Peyser, 5 Dem. 244. 62 In Matter of Curry (47 St. Rep. 307; 19 N. Y. Supp. 728), the execu- tor refused to pay costs out of the es- tate, as directed by a decree, admit- ting the will to probate; — Held, that the surrogate was justified in direct- ing him to pay such costs out of the estate, together with costs of the mo- tion, personally. §§ 1117, 1118. Costs in Sueeogates' Couets. 914 value." ^^ The amount or value of an estate is not the balance left after payment of funeral expenses, debts, and expenses of admin- istration, but the gross amount thereof, at the time of the owner's death, with any increase up to the time of accounting.^* The sur- rogate has no power to direct a temporary administrator to pay costs, out of the estate, of a special proceeding for the probate of an alleged will.^^ The decree in such case should award costs and provide for their payment by the person to whom letters should thereafter be granted.^* SUBDIVISION 2. AMOUNT OF COSTS. § 1117. Amount of costs of intermediate order. — The amount of costs, where awarded by an intermediate order, are the same as upon a similar order made by the Supreme Court in an action f i. e., in general, a sum fixed by the court, not exceeding ten dol- lars, besides necessary disbursements for printing and referee's fees, to each party to whom costs are awarded;^* although it is provided that " upon a motion for a new trial, upon a case," in the Supreme Court, etc., in an action, the sums allowable are same as wpon an appeal to the Appellate Division.®^ § 1118. Costs and disbursements awarded by decree In all cases, except where a question of fact has been tried by a jury, and except costs of appeal, " the surrogate, upon rendering a de- cree, may, in his discretion, fix such a sum, to be allowed as costs, in addition to the disbursements, as he deems reasonable, not ex- ceeding, where there has not been a contest,™ twenty-five dollars, or where there has been a contest, seventy dollars; and, in «3Co. Civ. Proc, § 2557. See Mat- him (Matter of Parish, 29 Barb. 627), ter of Van Kleeck, 2 Connoly, 14; 20 yet such consent would not justify N. Y. Supp. 85. such an order. (Matter of Badger, 3 6*Chalker v. Chalker, 5 Redf. 480. L. Bui. 71, and cases cited.) 65 Matter of Aaron, 5 Dem. 362; 6T Co. Civ. Proc, § 2556. McGovern v. MoGovern, 50 N. Y. 68 See Co. Civ. Proc, § 3251, subd. Super. (J. & S.) 390. See Duryea v. 3, paragraph ninth. Mackey, 151 N. Y. 204. 69 See Co. Civ. Proc, § 3251, subd. 68 The surrogate cannot order a tem- 3, paragraph eighth, and subd. 4. porary administrator to pay the costs See also Co. Civ. Proc, § 2481, subd. allowed to the several parties by a 6, and §§ 2548, 2588. But see id., decree awarding letters of administra- § 2561. tion. S'Uch costs are not debts due to TO See Matter of Rylance, 25 Misc. the creditors of decedent, nor expenses 283 ; 55 N. Y. Supp. 433, as to what of the temporary administrator's trust, is a " contest." See Matter of Ho- and while the offer and consent of all garty, 62 App. Div. 79 ; 70 N. Y. Supp. the parties, by their attorneys, to the 839. payment thereof by him might protect 915 Costs in Sueeogates' C'oukts. 1118. addition thereto, where a trial or hearing upon the merits before the surrogate necessarily occupies more than two days, ten dol- lars for each additional day; and where a motion for a new trial is made before the surrogate, if it is granted, seventy dollars ; if it is denied, forty dollars." " Costs, when awarded by a decree, include all disbursements of the party to whom they are awarded, which might be taxed in the Supreme Court.'^^ The sum allowed for costs mvist be fixed by the surrogate, and inserted in the de- cree. TlCo. Civ. Proc, § 2561. See Mat- ter of Miles, 5 Redf. 110. Section 2561 is equally applicable to a hearing before a referee appointed by the sur- rogate as to a hearing before the sur- rogate in person; but the section does not contemplate or empower any al- lowance for days on which an adjourn- ment occurs without any actual hear- ing. (Matter of Clark, 21 Week. Dig. 563.) See Matter of CoUamer, 5 St. Rep. 196. No greater sums than those specified in the statute can be allowed. (Matter of Hitchler, 25 Misc. 369; 55 N. Y. Supp. 642.) 72 Matter of Bender, 86 Hun, 570; 33 N. Y. Supp. 907 ; Matter of Hitch- ler, 25 Misc. 369; 55 N. Y. Supp. 642. For the taxable disbursements in the Supreme Court, see Co. Civ. Proc, § 3256. In Matter of Hamer (N. Y. Law J., June 10, 1891), the surrogate allowed the proponent $1.50 for each party served with citation within the county of New York, it appearing from his affidavit that the maximum sum allowed by law to the sheriff would be reasonable. He also allowed for each party served outside of the county of New York and within the State of New York, the sum of $1, and mileage from the courthouse of the county wherein the citation was served, as provided by section 3307 of the Code. As to taxing stenogra- pher's fees by consent, see Matter of Willett, 6 Dem. 435; 17 St. Rep. 776, 780 ; Matter of Maritch, 29 Misc. 270 ; Matter of Engelbrecht, 15 App. Div. 541; 44 N. Y. Supp. 551. As to ref- eree's fees, see Matter of Hurd, 6 Misc: 171; 26 N. Y. Supp. 893; Matter of Santos, 31 Misc. 76 (termination of reference Under §§ 1019, 2546). 73 Co. Civ. Proc., § 2559. The amount involved is to be considered in allowances, and counsel accepting re- tainers in litigations of small estates will be limited in their fees. (Matter of Jones, 28 Misc. 599 ; 59 N. Y. Supp. 1020.) Where there has been a con- test before the surrogate it is in his discretion to fix such a sum, not ex- ceeding $70, as he deems reasonable to be allowed as costs in addition to disbursements, and he may further al- low the sum of $10 for each day in excess of two spent on the trial, and the surrogate's order is conclusive on the question. (Matter of Niles, 34 St. Rep. 720; 12 N. Y. Supp. 157.) In New York county, the following rules are in force : " Whenever a party to a decree shall deem himself entitled to costs, the same will be considered and determined by the surrogate on two days' notice of adjustment, to be served upon the opposing party, with the items of costs and disbursements to which the party may deem himself entitled at the time of the settlement of the decree, which disbursements shall be duly verified, both as to their amount and necessity; and at the same time and on like notice, the sur- rogate will pass upon any additional allowance to be made to an executor, administrator, guardian, or testamen- tary trustee, upon a judicial settlement of his account; which notice of adjust- ment and allowance shall be accom- panied by an affidavit setting forth the number of days necessarily occupied in the trial or hearing, the number of days necessarily occupied in prepar- ing an account for the settlement and in the preparation for trial, the time occupied on each day in the rendition of services, and their nature and ex- tent in detail. In case such trial shall have been had before a referee, the time necessarily occupied in such trial before him may be shown by a certifi- cate of such referee. The affidavit of disbursements, time engaged in trial and in preparing the account, and for trial, may be controverted by affi- davit." (Rule XXII, Mar. 16, 1888.) § 1119. Costs in Sueeogates' Couets. 916 § 1119. Costs of appeal. — The Code contains the following clause : " The costs of an appeal, where they are awarded in a Surrogate's Court, are the same as if they were awarded in the Supreme Court." ^* Although this provision is not altogether clear, yet, since the rule seems plainly to be that costs of an appeal are always awarded, if at all, by the appellate court, we construe the clause quoted as in effect declaring that where costs of an ap- peal from a decree or order, made in a special proceeding insti- tuted in a Surrogate's Court, are awarded, the amount thereof is the same as if the special proceeding were one instituted in the Supreme Court. This construction is made clear by an amend- ment (1881) of section 3240, by which it is provided that costs in a special proceeding, instituted in a court of record, or upon an appeal in a special proceeding, taken to a court of record, where the costs thereof are not specially regulated in this act, may be awarded to any party, in the discretion of the court, at the rates allowed for similar services, in an action brought in the same court, or an appeal from a judgment taken to the same court, and in like manner. '^^ " Wherever any person shall appear T4 Co. Civ. Proc, § 2560. in support of the will propounded un- T5 See Matter of Simpson, 26 Hun, der section 2617 of the Code, such per- 439; Cole v. Terpenning, 27 id. Ill; son shall not thereby become entitled Sehell v. Hewitt, 1 Dem. 249. Infant to recover any costs on the probate of respondents on an appeal, appearing said will, unless it shall appear to the by an attorney other than that of the satisfaction of the surrogate that the adult respondents, are entitled, on interest of said parties was not suffi- an affirmance, to a separate bill of ciently represented and prosecuted by costs. (Savage v. Gould, 60 How. Pr. the executor named in the will, and his 255. ) counsel." (Rule VT, Mar. 16, 1888.) CHAPTER XXIII, PROBATE AND REVOCATION OF PROBATE OF HEIRSHIP. TITLE riEST. PEOBATE OF HEIRSHIP. § 1120. In general — The difficulty which may attend the ju- dicial determination of questions of heirship, including the ascer- taining of who are entitled to succeed to an intestate's real estate, gave occasion to a statute^ which provided means, by a proceeding before the surrogate, for obtaining presumptive evidence of the facts, as to the persons who constitute the heirs-at-law of a deceased person. The act has been revised in the Code, and amended in various particulars, chiefly by prohibiting a continuance of the proceedings, in case a contest arises, and by providing for a revo- cation or modification of the decree of probate. We are not aware that this mild remedy has been availed of, or received judicial construction. § 1121. Of what estates heirship provable — The special proceed- ing may be instituted^ with respect to the estate of a person, seized in fee of real property within the State, who dies intestate, or without having devised his real property to specific persons.^ " The word, ' intestate,' signifies a person who died without leav- ing a valid will; but where it is used with respect to particular property, it signifies a person who died without effectually dis- posing of that property by will, whether he left a will or not." * § 1122. Who may proceed, and before what court. — The heirs of the decedent or any of them, or any person deriving title from or through such heirs or any of them, may apply to the Surrogate's IL. 1873, 0. 552; amended L. 1874, the heirs of testator. 8ed qu., if it c. 127. should be to any other class, by its 2 Co. Civ. Proc, § 2654. generic appellation. 3 As where a devise is, in terms, to i Co. Civ. Proc, § 2514, subd. 1. [917] § 1123 Peobate of Heieship. 918 Court who has acquired jurisdiction of the estate f or, if no Sur- rogate's Court has acquired such jurisdiction, then to the Surro- gate's Court of the county where the real property, or any part thereof, is situated.® The application must be made by " a writ- ten petition, duly verified; describing the real property; setting forth the facts upon which the jurisdiction of the court depends; and the interest or share of the petitioner, and of each other heir of the deceased, 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 attend the probate of that right." ^ The citation must set forth the name of the decedent and of the petitioner; the interest or share which the petitioner claims; and a brief description of the real property.^ Anj heir of the dece- dent, who has not been cited, may, nevertheless, appear at the hear- ing; and thereby make himself a party to the special proceed- ing. But this provision does not affect a right or interest of such a person, unless he becomes a party. ^^ §1123. Hearing; dismissal; evidence — "Upon the return of the citation, the surrogate must hear the allegations and proofs of the parties. If it appears that there is a contest, respecting the heirship of a party, or respecting the share to which a party is entitled, as an heir of the decedent, "the surrogate must dismiss the proceedings. If there is no such contest, he must inquire into the facts and circumstances of the case. The petitioner must es- tablish, by satisfactory evidence,*^ the fact of the decedent's death ; the place of his residence at the time of his death ; his intestacy, either generally, or as to the real property in question; the num- ber of heirs entitled to inherit the property in question ; the name, age, residence, and relationship to the decedent, of each; and the interest or share of each in the property." ^^ " The surrogate, where these facts are established, must make a decree, describing the property, and declaring that the right of inheritance thereto has been established to his satisfaction, in accordance with the facts, which must be recited in the decree." '^ 5 Probably by a grant of letters, or 8 Co. Civ. Proc, § 2654. bv the institution of an application 9 Co. Civ. Proc, §§ 2654, 2655. therefor. See Co. Civ. Proc, §§ 2475- 10 Co. Civ. Proc, § 2655. 2477. "Compare Co. Civ. Proc, § 2661, 6 Co. Civ. Proc, § 2654, as amended and §§ 185, 342, ante. 1892. 12 Co. Civ. Proc, § 2656. TSee Co. Civ. Proc, § 2518; § 75 13 Co. Civ. Proc, § 2656. et seq., ante. 919 Peobate of Heieship. §§ 1124-1126. §1124. Effect of decree; recording of copy. — An exemplified copy of the decree of probate, " and of the proofs taken there- uporij^* may be recorded in the office of the clerk, or of the register, as the case requires, of each county in which the real property is situated, as prescribed by law for recording a deed, and, from the time when the exemplifications are so recorded, the decree, or the record thereof, is presumptive evidence of the facts so declared to be established thereby." ^^ TITLE SECOND. EEVOCATION OF PEOBATE OF HEIESHIP. § 1125. Who may apply and when. — In addition to the general provision, that a surrogate may open, vacate, modify, or set aside, or enter, as of a former time, a decree or order of his court; or grant a new trial or a new hearing for fraud, newly-discovered evidence, clerical error, or other sufficient cause, which powers are exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers,^^ the Code contains special regulations as to setting aside, in whole or in part, a decree made in this proceeding. Any person other than a party to the special proceeding for probate, or the heir, devisee, or assignee of such a party, may make an application for the revocation or modification of the decree.-'^ The application for revocation, etc., may be made at any time within ten years after a decree establishing the right of inheritance is made, " to the court ;" i. e., the court which rendered the decree.^^ The ap- plication must be made by a written petition, duly verified, show- ing that the petitioner " has a right, title, or interest in the real property, or a part thereof, which is injuriously affected by the decree ; stating that the decree is erroneous in some material par- ticular, specified therein, and praying that the decree may be set aside or modified in that particular, and that all the persons, whose heirship was established by the decree, may be cited to show cause why the prayer of the petition should not be granted." ^* § 1126. Requisites of petition, where heir has died or aliened. — " If an heir has since died, or has conveyed the share or interest so established, by a deed duly recorded in the county, the petition 14 That is, upon the hearing. IT Co. Civ. Proc., § 2658. 15 Co. Civ. Proc, § 2657. 18 Co. Civ. Proc, § 2658. laCo. Civ. Proc, § 2481, subd. 6. "Co. Civ. Proc, § 2658. § 1127. Peobate of Heikship, 920 must state that fact; and must pray that the persons, who have succeeded to his interest, may be also cited." ^" § 1127. Decree of revocation, etc.— Where such a petition is presented, and it appears, upon the hearing, that, if the petitioner, or his ancestor, testator, or grantor, had been a party to the special proceeding for probate, the decree, or a part thereof, could not have been legally made, the surrogate must vacate or modify the decree accordingly. "An exemplified copy of the decree or order, so vacating or modifying the original decree, may be recorded in the office of any clerk or register, where a copy of the original decree was recorded." ^^ 20 Co. Civ. ProB., § 2658. 2i Co. Civ. Proc, § 2659. There is no provision as to the effect of this decree, as evidence. CHAPTER XXIY. APPEALS. TITLE FIRST. APPEALS TO THE SUPKEME COUET. § 1128. Changes in practice effected by the Code The commis- sioners who framed the Code left Surrogates' Courts in the cate- gory of courts not of record, and revised the laws, embodied in that act, on this theory ; but the Legislature, in 1877, made these tribunals courts of records, leaving, however, most of the other pertinent provisions of the Code unchanged. Thus the General Rules of Practice are declared by the Code to be binding upon all courts of record, except the Court for the Trial of Impeachments and the Court of Appeals. Accordingly, the rules which took effect March 1, 1884, except so far as such a result would be in- consistent with statutes, govern these courts; and surrogates are expressly mentioned. The general chapter of the Code, concern- ing appeals, was originally declared* not to apply to appeals from a Surrogate's Court; and though that provision has been repealed,^ it is believed that the principle still remains, inasmuch as a com- plete schelne for appeals, in the first instance, is contained in the eighteenth chapter of the Code;' in which, however, certain sec- tions of the first-mentioned chapter are made applicable by refer- ence.* §1129. Appealable decree and orders — An appeal to the Su- preme Court lies from: (1) Every decree^ of a Surrogate's Court, i. e., every " final determination of the rights of the parties, to a special proceeding" in that court;® and (2) every order affecting IL. 1876, c. 449, § o, subd. 9. subd. 11. See also Matter of Gates, 2L. 1880, 0. 245, § 1, subd. 52. See 26 Hun, 179; Mills v. Hoffman, 92 N. Co. Civ. Proc, § 3347, subd. 9. Y. 181; Matter of Sayre, 20 St. Eep. 3 Tit. 2, art. 4. 682. * Co. Civ. Proc, § 2575. As to prac- 6 Otherwise termed a " final order." tiee on appeals from surrogates' de- (Co. Civ. Proc, § 2550.) erees entered on or after September 1, 6 Co. Civ. Proc, §§ 2550, 2570. The 1880, in proceedings commenced before docketing of a surrogate's decree does that day, see Co. Civ. Proc, § 3347, not make it a judgment of the Su- [921] § 1130. Appeals. 922 a substantial right, made, before or after tbe decree in a special proceeding, by the surrogate, or by the Surrogate's Court ;^ un- less the decree or order was rendered or made upon the appellant's default.* There can be no appeal from the mere decision of the surrogate upon "which no formal order has been entered.® An appeal taken from a decree brings up for review each intermedi- ate order which is specified in the notice of apj>eal, which neces- sarily affected the decree, and which has not already been reviewed by the appellate court, upon a separate appeal taken from that order." § 1130. Orders affecting a substajitial right. — The Eevised Stat- utes gave a right of appeal to the Supreme Court " from the orders, decrees, and sentences of surrogates in all cases ;" ^' yet this language was, by judicial construction, subjected to certain limitations, which, it is believed, are, in the main, applicable to the provisions of the present Code, the design of which was, obvi- ously, not to create any radical change in the rules governing the appealability of these determinations. The clause, " which affects a substantial right," introduced by the present Code, is conformable to the construction placed upon the former statute, under which it was held, notwithstanding the comprehensive lan- guage of the section cited, that it did not embrace orders not affecting a substantial right, or merely formal orders, or those de- pending on mere questions of discretion.*^ The same principle preme Court, and it is still a subject 139 N. Y. 51. See Potter v. Ogden, of appeal, as a surrogate's decree. 136 id. 384, 401. (Davies v. Skidmore, 5 Hill, 501.) lOCo. Civ. Proc, § 2571. The Court Though a decree be unauthorized, and, of Appeals cannot review a judgment therefore, erroneous, yet, if it purport of the General Term (Appellate Divi- to be final, it is a final decree for the sion) reversing upon the facts a deoree purposes of appeal. (Smith v. Van of the surrogate admitting a will to Kuren, 2 Barb. Ch. 473.) A decree probate, and directing a new trial, be- settling accounts which determines the fore a jury, of questions of fact, nor principles upon which the account is does an appeal from a, subsequent adjusted is final, although it gives the judgment, after such new trial, bring representative leave to further account up such order for review, under Co. as to certain expenses incurred by Civ. Proc, §§ 1316, 1317, as it is not, him. (Matter of Van Houten, 18 App. within the meaning of these sections, Div. 301; 46 N. Y. Supp. 190.) either an interlocutory judgment or 7 Co. Civ. Proc, § 2570. an intermediate order necessarily af- 8 Co. Civ. Proc, § 2568. There can fecting the final judgment. (Matter be no appeal from an ex parte order of Budlong, 126 N. Y. 423; 38 St. on the ground of its irregularity. Rep. 436.) (Skidmore v. Davies, JO Paige, 316.) "2 R. S. 609, § 104. The aggrieved party should move, on 12 Under the Revised Statutes, such notice, to vacate an ex parte order, orders as the following were held not and appeal from the order of refusal, appealable, as not affecting a substan- ( Matter of Johnson, 27 Hun, 538.) tial right, or as being purely discre- 9 Matter of Callahan, 66 Hun, 118; tionary: a refusal to entertain an 923 Appeals. § 1130. governs under the present Code. On the other hand, an order directing an administrator to render an account of the proceeds of sales of property claimed by him, individually, affects a sub- stantial right, and is appealable ;^^ and so is a refusal to dismiss a proceeding for the examination of a person alleged to have prop- erty of the decedent's estate, where there was a defect of parties.^* An apj)eal now lies from the surrogate's finding of a sufficiency of assets to pay a judgment.-'^ Appeals to the Supreme Court, from orders resting in the sur- rogate's discretion, do not stand on the same footing as similar appeals from Special Term orders of the Supreme Court ; except that in certain cases, where a matter is Avithin the discretion of the surrogate, his action will be reviewed only to ascertain whether there has been an abuse of discretion or a violation of justice.-"' Thus, whether a general guardian shall be appointed for an infant, application for the appointment of a collector [special administrator] though a mandamus might lie to com- pel the surrogate to hear and deter- mine the allegation on the merits (McGreagor v. Buel, 24 N. Y. 169) ; an order merely directing that a peti- tion for the removal of a guardian should be inquired into (Skidmore v. Shaw, 3 Ch. Sent. 54) ; a denial of an application for an order directing an executor to institute proceedings for the recovery of assets in a foreign jurisdiction, was held, under the cir- cumstances of the case, discretionary, and not reviewable by the Court of Appeals, on an appeal from the judg- ment of the General Term affirming a decree of the surrogate settling the executor's account. (Sherman v. Page, 85 N. Y. 123.) The discretion con- ferred upon the surrogate, by 2 R. S. 67, § 62, to require payment, to an appellant succeeding in impeaching the validity or execution of a will, by the adverse party, of the costs and ex- penses of the proceedings (reserving the question whether the payment should be made personally, or out of the estate), was held not reviewable in any other court. (Marvin v. Mar- vin, No. 1, 11 Abb. Pr. [N. S.] 97.) But, as to costs in a final order, see Lain v. Lain, 10 Paige, 191; Willcox V. Smith, 26 Barb. 316. An objection that the surrogate had no power, under the statute, to make an arbitrary al- lowance to counsel (Devin v. Patchin, 26 N. Y. 441; Seaman v. Whitehead, 78 id. 306 ) , or to an unsuccessful party (Noyes v. Children's Aid So- ciety, 10 Hun, 289; affd., 7u N. Y. 481), may be taken by appeal. The Court of Appeals will not review a General Term decision, that the sur- rogate's award of costs was discre- tionary, (lb.) The General Term can- not review the discretionary order of the surrogate charging the executor personally with costs. (Matter of Selleck, 111 N. Y. 284.) Compare Matter of Vandervoort, 33 St. Rep. 944; 19 Civ. Proc. Rep. 355. iSFiester v. Shepard, 26 Hun, 183; affd., 92 N. Y. 251 ; Matter of Gilbert, 39 Hun, 61 ; affd., 104 N. Y. 200. As to whether an order of a surrogate re- quiring an administrator to render an intermediate account is appealable, see Matter of Hurlburt, 43 Hun, 311. 14 Matter of Slingerland, 36 Hun, 575. 15 Co. Civ. Proc, § 2552. 16 Matter of Adler, 60 Hun, 481; 39 St. Rep. 462; Matter of Hyde, 47 St. Rep. 208; 19 N. Y. Supp. 742. While the opening of a decree, for fraud or newly-discovered evidence, is discre- tionary, the exercise of that discretion is reviewable. (Matter of Tilden, 56 App. Div. 277; 67 N. Y. Supp. 879.) But not an order denying a motion to vacate an order punishing an execu- tor, removed for contempt in failing to obey the final order removing him. (Matter of Pye, 23 App. Div. 206; 48 N. Y. Supp. 865.) § 1130. Appeals. 924 and whether he shall be selected out of the relatives of the infant, being matter of discretion, committed to the surrogate, is not re- viewable.-" An order denying a motion for the simultaneous trial of different issues joined in a special proceeding, does not " affect a substantial right," and is not appealable; and an attempted ap- peal therefrom does not operate to stay the trial of such issue. ^^ A decree denying a motion to dismiss proceedings to revoke the probate of a will, which imposes no costs, is not appealable ;^^ nor is an order refusing leave to a person, having no interest in the estate, to intervene in a proceeding to compel the executor to pay a legacy f nor an order appointing a referee to take evidence and report the same to the court ;^^ nor an order referring back an accounting to the referee, with directions to proceed according 17 Matter of Vandewater, 115 N. Y. 669; 26 St. Rep. 207; Matter of Welch, 74 N. Y. 299. 18 Henry v. Henry, 4 Dem. 253; s. c. in part as Matter of Henry, 3 How. Pr. (N. S.) 386; 9 Civ. Proe. Rep. 100. Ah order denying a motion for the is- suance of a commission is appealable, but as the appeal is from an order denying an application, it has no prac- tical operation as a stay and will not prevent a trial of the issues to which the desired testimony related. (lb.) An order allowing contestant, on an accounting, to amplify his answer, specifying debts for which the execu- tor is to be held liable, is not review- able. (Matter of Burnett, 15 St. Rep. 116.) 18 Matter of Soule, 46 Hun, 661. An order denying a motion to dismiss a petition is not a final adjudication and is not appealable. (Matter of Phalen, 51 Hun, 208; 21 St. Rep. 34.) But an order amending the petition and di- recting the issuance of a supplemental citation is appealable, if the effect of the order was to deprive the person brought in of a Statute of Limitations which had run in his favor. (lb.) An order dismissing, conditionally, proceedings for the probate of a will, affects a substantial right and is ap- pealable. (Matter of Buckley, 2 St. Rep. 673.) But an order dismissing a motion to set aside a citation requir- ing administrators to show cause why the letters of administration issued to them should not be revoked, made be- fore the citation was served, does not affect a substantial right, and is, there- fore, not appealable. (Matter of Westurn, 5 App. Div. 595; 39 N. Y. Supp. 429. ) So, too, an order refusing to strike out of the record the name of a person. (Matter of Nottingham, 88 Hun, 443; 34 N. Y. Supp.~404.) Like- wise, an order refusing to resettle a former order. (Matter of Sondheim, 69 App. Div. 5; 74 N. Y. Supp. 510.) In the Nottingham case (supra) it was said that where a surrogate im- properly refuses to proceed and de- cree distribution, the remedy is by mandamus, and not by appeal. 20 Matter of Halsey, 93 N. Y. 48. But an order granting the application of one claiming to be a legatee, for an accounting by the executor, who con- tested his interest, affects a substan- tial right, and is appealable. ( Fiester v. Shepard, 26 Hun, 183.) 21 Matter of Pearsall, 21 St. Rep. 305. Compare Moffatt v. Moffatt, 3 How. Pr. (N. S.) 156. An order di- recting examination of witness, not- withstanding allegation that witness is mentally unsound, is not appealable (Matter of Hutchings, 40 St. Rep. 916; 16 N. Y. Supp. 36) ; nor is an order directing an attorney, having custody of estate's funds, to deposit same, pending adjustment of his claim against the estate. (Matter of De Or- aindi, 31 St. Rep. 744; 9 N. Y. Supp. 873.) An order directing executors to account, and to deposit bonds with a, trust company named, or show cause why such deposii should not be made, is, as to the latter clause, merely an order to show cause and not appeal- able. (Matter of Kreischer, 30 App. Div. 313; 51 N. Y. Supp. 802.) 925 Appeals. § 1131. to the original order of reference, and making no final disposition of tlie matter.^^ § 1131. Who may appeal. — Any party aggrieved may appeal, in the first instance, to the Supreme Court,^^ from a decree or an order, except where the decree or order of which he complains was rendered or made upon his default,^* or where he has com- plied with some condition imposed upon him thereby.^^ The requirement that appellant must be an aggrieved party, super- sedes a ruling, under the former statute, that any of the parties to a proceeding for the probate of a will and codicils, who, though 22 Matter of Jost, 46 St. Rep. 129 ; decree as affected only other parties to 19 N. Y. Supp. 48. " When the ref- the proceeding, he being in no way ag- eree has reported under this direction grieved thereby. It was held, even and his report has been confirmed or under the Revised Statutes, that a per- set aside and a final order made son who had no interest in the estate, thereon, there will be a proper subject or whose interest had ceased on the of review; the matter at present is birth of a posthumous child who is simply under investigation." ( lb. ) entitled to the estate, could not prose- An order granting a commission to cute an appeal (Reid v. Vanderhey- take testimony, will not be interfered den, 5 Cow. 719) ; nor could a hus- with on appeal, except where it ap- band, by virtue of his wife being the pears to have been illegal or arbitrary, next of kin, appeal, in his own name (Matter of Plumb, 64 Hun, 317; 46 alone, from a decree affirming the pro- St. Rep. 362; 135 N. Y. 661.) An bate of a will. (Foster v. Foster, 7 appeal lies from an order adjudging Paige, 48.) Where an executor, com- an applicant for letters of adminis- mitted to jail by a surrogate for dis- tration incompetent, by reason of im- obedience of a, final decree directing providence (McMahon v. Harrison, 6 him to make certain payments to dif- N. Y. 443) ; from a decision in pro- ferent parties named, was discharged ceedings for the sale of real estate from imprisonment on habeas corpus, for debts, adjudging certain claims and the General Term, on a writ of to be valid and subsisting demands certiorari, affirmed the discharge; — against the deceased and his estate Held, that one of the parties named in (Owens V. Bloomer, 14 Hun, 296) ; the surrogate's order, as entitled to a and from an order in such proceed- certain payment, but who was not the ings, vacating the sale on the ground relator in the writ of certiorari, could that the price obtained was insuf- not appeal to the Court of Appeals ficient, and ordering a resale (Del- from the General Term order. (Wat- aplaine v. Lawrence, 10 Paige, 602) ; son v. Nelson, 69 N. Y. 536.) For- though it has been doubted whether merly, appeals in probate cases, in- the appellate court, in such a case, eluding proceedings to revoke probate would review the weight of evidence on allegations, and proceedings for as to the insufficiency of price. (Del- construction of wills, could be main- aplaine v. Lawrence, 3 N. Y. 301.) tained only by a devisee or legatee 23 Co. Civ. Proc, § 2570. An attor- named in the will, or by an heir-at- ney, asserting a lien for services, can- law of, or next of kin to, the testator, not appeal, as he is not a party in in- (2 R. S. 66, § 55; L. 1870, c. 359, terest. (Matter of Evans, 33 Misc. § 11.) See Alston v. Jones, 10 Paige, 671; 68 N. Y. Supp. 937.) 98; Mason v. Jones, 2 Bradf. 325. 24 Co. Civ. Proc, § 2568. In Matter But compare Williams v. Fitch, 15 of Hodgman (69 Hun, 484; affd., 140 Barb. 654. N. Y. 421), it was held, that on a 25 Thus, where executors give a bond legatee's appeal from a decree, on a ju- pursuant to a decree revoking their dicial settlement, which disallowed his letters unless they do so, they cannot claim for interest, he was not entitled appeal. (Matter of O'Brien, 145 N". to a review of such provisions of the Y. 379; 64 St. Rep. 829.) § 1132. Appeals. 926 the will were established, would take nothing by the codicils, and whose interests were, therefore, unaffected, whether the decision of the surrogate in reference to the codicils were affirmed or re- jected, might, nevertheless, appeal from the decision admitting the codicils to probate,^® or even from a decree admitting a will to probate, notwithstanding he may have been the petitioner for probate. ^^ Under the present statute, only persons who have an interest in the controversy^ which has been injuriously affected by the decision below, may appeal therefrom.^* A special guard- ian does not become functus officio by the rendition of the decree, and may, therefore, prosecute an appeal.^® But where a represen- tative, upon an accounting, has brought in all persons interested, he has no further duty in their behalf and may not appeal from the decree, save so much thereof as affects his own rights.^** § 1132. Appeals by a person not a party — It was always tlae rule that, in probate cases at least, the right of appeal did not depend upon the appellant having been a party to the proceeding in the Surrogate's Court. The fact of his being named in the will entitled him to appeal from a decree refusing probate. ^^ This principle has been incorporated in the Code, applicable to all classes of appealable decrees and orders, which provides that any " creditor of, or person interested in, the estate or fund affected by the decree or order, who was not a party to the special proceed- ing, but was entitled by law to be heard therein, upon his appli- cation ; or who has acquired, since the decree or order, was made, a right or interest which would have entitled him to be heard, if it had been previously acquired ; may intervene and appeal." ^^ 26Delafield v. Parish, 42 Barb. 274; 30 Matter of Hodgman, 140 N. Y. 25 N. y. 9; 1 Redf. 1. An executor 421; Matter of Coe, 55 App. Div. 270; may appeal from a judgment of the 66 N. Y. Supp. 784; Matter of Rich- surrogate refusing probate to a eodi- mond, 63 App. Div. 488; 71 N. Y. cil. (Matter of Stapleton, 71 App. Supp. 795. Div. 1; 75 N. Y. Supp. 657.) 31 Lewis v. Jones, 50 Barb. 645. 2TVandemark v. Vandemark, 26 32 Co. Civ. Proc, § 2569. "The Barb. 416. facts, which entitle such person to ap- 28 Bryant v. Thompson, 128 N. Y. peal, must be shown by an affidavit, 426. One to whom an executor has which must be filed, and a copy thereof assigned his cotamissions, before they served with the notice of appeal." were ascertained and liquidated, has (lb.) See Delaplaine v. Lawrence, 10 no interest which will entitle him to Paige, 602; Reid v. Vanderheyden, 5 mov« to vacate a decree refusing com- Cow. 719; Sherman's Appeal, 16 Abb. missions to such executor, or to appeal Pr. 397, note; Lewis v. Jones, 50 Barb, from an order denying such motion. 645 ; Pruyn v. Brinkerhoff , 7 Abb. Pr. (Matter of Worthington, 141 N. Y. (N. S.) 400; Marvin v. Marvin, 11 id. 9; 35 N. E. 929.) 97; Oilman v. Oilman, 1 Redf. 354; 29 Matter of Stewart, 23 App. Div. 35 Barb. 591. Under the old practice, 17 ; 48 N. Y. Supp. 999. it was improper for separate appeals 927 Appeals. ^§ 1133, 1134. § 1133. Necessary and proper parties to appeal. — " Each party to the special proceeding in the Surrogate's Court, and each person not a party, who has, or claims to have, in the subject-matter of the decree or order, a right or interest, which is directly affected thereby, and which appears upon the face of the papers presented in the Surrogate's Court, or has become manifest in the course of the proceedings taken therein, must be made a party to the ap- peal.^* A person not a party, but who is a necessary party, may be brought in by an order of the appellate court, made after the appeal is taken ; or the appeal may be dismissed on account of his absence ; and the appellate court may prescribe the mode of bring- ing in such a person, by publication, by personal service, or other- wise.^* § 1134. Infants as parties. — Formerly, where an infant or other incompetent was a party to an appeal, it was necessary to procure the appointment of a guardian ad litem by the appellate court, notwithstanding the surrogate had appointed a special guardian for the infant in the proceeding below; but under the present system, such new appointment is not necessary, and the special to be taken by several parties in in- terest whose rights are identical. But one appeal, in which all the interested parties are named, was allowed. (Brockway v. Jewett, 16 Barb. 590.) If, however, one of the respondents wishes to raise a question between himself and a co-respondent, he should appeal separately. (Ross v. Ross, 6 Hun, 80.) An interested person may apply to be made a party respondent to the appeal, although his time to appeal has expired. ( Cox v. Schermer- horn, 12 Hun, 411.) 33 Co. Civ. Proc, § 2573. 34 Co. Civ. Proc, § 2573. " But this section does not require a person in- terested, but not a party, to be brought in, if he was legally represented, or was duly cited in the court below." (lb.) The surrogate cannot make an order for the intervention of new par- ties, pending an appeal. (Matter of Dunn, 1 Dem. 294.) Oh an appeal from an order denying an application to revoke probate, the administrator is a necessary party; although he was ■not notified to attend and oppose the application before the surrogate. (Matter of Thompson, 11 Paige, 453.) An aflSrmance or reversal of a decree can only be made upon a duly certi- fied record, and probably upon a com- pliance with section 2573, as to the proper parties on the appeal. Hence, an appeal arranged between counsel, and not containing the certified record, will be dismissed. (Matter of Hall, 27 St. Rep. 133.) Under the old prac- tice, the counsel who, under an order of the surrogate, was to receive money from a decedent's estate to be applied to a specific purpose, was held to be a proper party to an appeal from such order. (Gilman v. Gilman, 3 Hun, 22.) For the former practice in re- gard to dismissing appeal for a defect of parties, see Gardner v. Gardner, 5 Paige, 170; Poster v. Tyler, 7 id. 48; Gilchrist v. Rea, 9 id. 66 ; jauncey v. Rutherford, id. 272; Oilman v. Gil- man, 1 Redf. 354; Willcox v. Smith, 26 Barb. 316; Brown, v. Evans, 34 id. 594; Suffern v. Lawrence, 4 How. Pr. 129 ; Patterson v. Hamilton, 26 Hun, 665. Where the surrogate had made allowances to the counsel of parties contesting the probate of a will, it was held, that they might be made parties to an appeal from the order, as their interest in the allow- ance was personal, and could not be discharged by payment to their clients. (Peck V. Peck, 23 Hun, 312.) §§ 1135, 1136. Appeals. 928 guardian appointed by the surrogate may be made a party to the appeal, instead of the infant. If no special guardian was ap- pointed below, application should be made for the appointment of a guardian by the appellate court.^^ § 1135. Designation of the parties and the proceeding The party or person appealing is designated the appellant, and the ad- verse party the respondent.^* After the appeal is taken, the name of the appellate court must be substituted for that of the court below, in the title of the special proceeding, and the name of the county may be omitted ; otherwise, the title is not to be changed, in consequence of the appeal.^'' § 1136. Abatement and revivor of appeal Where the adverse party has died since the making of the determination appealed from, or where such determination was made after his death (if permitted by law), an appeal may be taken, as if he were living; but it cannot be heard, until the heir, devisee, executor, or ad- ministrator, as the case requires, has been substituted as the re- spondent.^* Where either party to an appeal dies before the appeal is heard, if an order, substituting another person in his place, is not made, within three months after his death, the appellate court may, in its discretion, make an order requiring all persons inter- ested in the decedent's estate, to show cause before it, why the de- termination appealed from should not be reversed or aifirmed, or the appeal dismissed, as the case requires.^® The order must specify a day, when cause is to be shown, which must be not less than six months after making the order, and must designate the mode of giving notice to the person interested ; and upon the re- turn day of the order, or at a subsequent day, appointed by the court, if the proper person has not been substituted, the court, upon proof, by affidavit, that notice has been given, as required by the order, may reverse or affirm the determination appealed 3BAs to appeal, by an infant, from execution of the determination ap- an order appointing his guardian, see pealed from, must recite the fact of Underhill v. Dennis, 9 Paige, 203; the adverse party's death; and the Kellinger v. Roe, 7 id. 362. The rela- undertaking inures, after substitution, tives of the infant, who opposed the to the benefit of the person substi- appointment, are not necessary par- tuted. (lb.) ties. (Chaffee v. Baptist Miss. Con., 39 Co. Civ. Proc, §§ 1298, 2575. 10 Paige, 85.) The former section also contains a 36 Co. Civ. Proc, §§ 1295, 2575. retrospective clause, relating to deaths 37 Co. Civ. Proc, § 1295. occurring before its passage ; as to 38 Co. Civ. Proc, §§ 1297, 2575. In which the section should itself be con- such a case, an undertaking required suited. to perfect the appeal, or to stay the 929 Appeals. §§ 1137, 1138. from, or dismiss tlie appeal, or make such further order in the premises as justice requires.** § 1137. Limitation of time to appeal. — The Code abrogates the former varied rules*^ respecting the time for taking an appeal from the different adjudications in a Surrogate's Court by pro- viding that an appeal by a party must be taken within thirty days after the service, upon the appellant, or upon the attorney, if any, who appeared for him in the Surrogate's Court, of a copy of the decree or order from which the appeal is taken, and a written notice of the entry thereof. An appeal by a person who was not a party must be taken within three months after the entry of the decree or order, unless the appellant's title was acquired by means of an assignment or conveyance from a party ; in which case, the appeal must be taken within the time limited for appeals by the assignor or grantor.*^ An omission to take an appeal in time is fatal ; no court or judge can grant relief.*^ The proceedings, in such a case, will be dismissed upon motion, which must be made to the appellate court,** and the party cannot obtain relief indi- rectly, by a motion.*^ § 1138. Enlarging time, curing defects, etc Formerly, the court had not power to cure any defect in the proceeding, such as allowing a bond for costs to be filed nunc pro tunc;*^ but it is now provided that where the appellant has, seasonably, and in good faith, served his notice of appeal, either upon the clerk or *0Co. Civ. Proc, §§ 1298, 2575. An vised Statutes, the time was: 1. Six application for an order of substitu- months after entry, to appeal from an tion must be made to the appellate order appointing, removing, or refus- court; and where personal service of ing to remove a guardian. (2 R. S. notice of application for an order has 153, § 18.) 2. Three months after been made, within the State, upon the entry, to appeal from a decree grant- proper representative of the decedent, ing or refusing probate (2 R. S. 66, an order of substitution may be made § 55) ; from a decree revoking or con- upon the application of the surviving firming probate on allegations filed (2 party. (Co. Civ. Proc, §§ 1299, R. S. 62, § 35) ; from a decree finally 2575.) settling the accounts of executors, etc. *iThe time was computed from the (2 R. S. 610, § 105; id. 95, § 67; id. entry, and not the service of the order 152, § 113; L. 1866, c. 115; Bronson (Bay V. Van Rensselaer, 1 Paige, 422; v. Ward, 3 Paige, 189; Guild v. Peck, Robertson v. McGeoch, 11 id. 640) ; 11 id. 475.) 3. Thirty days after en- and the court had not power to en- try of the order or decree in all other large the time. (Bronson v. Ward, 3 cases. Paige, 189; Stone v. Morgan, 10 id. « Co. Civ. Proc, § 784; Stone v. 615.) Morgan, 10 Paige, 615. *2Co. Civ. Proc, § 2572; Matter of M Hynes v. McCreery, 2 Dem. 158. Kavanagh, 29 St. Rep. 215; 10 N. Y. 45 Marsh v. Av«ry, 81 N. Y. 29; La- Supp. 899; Matter of Dingman, 66 velle v. Skelly, 24 Hun, 642. App. Div. 228; 72 N. Y. Supp. 694 46 Spotts v. Dumesnil, 12 Abb. Pr. (appeal by State comptroller in trans- (N. S.) 117, note; Marvin v. Marvin, fer tax proceeding). Under the Re- 11 id. 97. 59 §§ 1139, 1140. Appeals. 930 upon the adverse party, or his attorney, but has omitted, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal, or to stay the execution of the determination appealed from, the ap- pellate court may, upon proof, by affidavit, of the facts, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires.*^ Not only " the appellate court," but the Surrogate's Court, has jurisdiction to allow an appellant, who has seasonably served notice of appeal, to file and serve an undertaking on appeal, when he has, through mistake or inadvertence, omitted to do so within the proper time.** § 1139. Notice of appeal and its service. — The appeal is effected by a notice of appeal served within the State upon each party to the special proceeding who is made a respondent, and also upon the surrogate or clerk of the Surrogate's Court. When the re- spondent appeared in the proceeding below by attorney, the notice may be served either upon the attorney or upon the party person- ally.** If he appeared below in person, it must be served upon him personally. If he did not appear below, though cited, it must also be served upon him personally, if, with due diligence, he can be found within the county; otherwise it may be served by deposit- ing it, indorsed with a direction to the party, with the surrogate, or the clerk of the Surrogate's Court. Where a person to be served cannot, with due diligence, be found, to make personal service upon him, the surrogate, or a justice of the Supreme Court, may, by order, prescribe such mode of service as he thinks proper ; and service in that mode has the same effect as personal service.^" § 1140. Security on appeal. — The appeal is perfected by the ser- vice of the notice of appeal, and (except as hereinafter men- ■tTCo. Civ. Proc, §§ 1303, 2575. See notice of appeal and the undertaking Ellsworth V. Fulton, 24 How. Pr. 20; on appeal were filed December 8th, Morris v. Morange, 26 id. 247. See but neither was served upon the pro- General Rule 32, as to power of surro- ponent or the executor named in the gate to enlarge time, etc. will until December 12th, and in the 4S Matter of Darragh, 1 Connoly, meantime letters testamentary were 170; 19 St. Hep. 207; Matter of Wit- issued to both executors,— Held, that mark, 15 id. 745; Matter of Cluff, 11 the mere filing with the court of the Civ. Proc. Eep. 338; 7 St. Rep. 753. notice, and the undertaking necessary 49 Where a motion to compel accept- to effectuate the appeal, did not stay anec of a, notice of appeal, claimed to the proceedings and prevent the issu- have been served too late, is granted, ance of the letters. Application for re-service by mail is sufficient. (Mat- the appointment of a temporary ad- ter of Williams, 6 Misc. 512; 27 N. ministrator was, therefore, denied. T. Supp. 433.) (Matter of Coles, N. Y. Law J., Feb. 50 Co. Civ. Proc, § 2574. Where the 23, 1893.) 931 Appeals. § 1141. tioned) tke filing of a proper undertaking in the surrogate's ofiice (approved by the surrogate, or a judge of the appellate court), with at least two sureties, to the effect that the appellant will pay costs and damages which may be awarded against him upon the appeal, not exceeding two hundred and fifty dollars.''^ § 1141. Security to effect a stay. — Certain decrees are desig- nated in the statute, appeals from which do not stay the execution thereof, unless the appellant gives extraordinary security. Thus, to effect the stay of the execution of a decree directing an execu- tor, administrator, testamentary trustee, guardian, or other per- son, to pay or distribute money, or to deposit money in a bank or trust company, or to deliver property, the appellant must give an undertaking, with at least two sureties, in not less than twice the sum directed to be paid, deposited or distributed, " to the effect that, if the decree or order, or any part thereof, is aflSrmed, or the appeal is dismissed, the appellant will pay all costs and dam- ages which may be awarded against him upon the appeal, and will pay the sum so directed to be paid or collected, or, as the case requires, will deposit or distribute the money, or deliver the property, so directed to be deposited, distributed, or delivered, or the part thereof as to which the decree or order is affirmed." '^ An executor or administrator must give the same kind of under- - taking in order to stay the operation of an order granting leave to issue an execution against him, pursuant to section 1825 of the Code.®^ And in order to effect, by appeal, a stay of the exe- 51 Co. Civ. Proc, § 2577. An under- county, either to perfect an appeal by taking, which the appellant is re- him, or to stay execution thereon. (L. quired to give, or any other act which 1898, c. 230, § 24, subd. 15.) he is required to do, for the security 62 Co. Civ. Proc, §§ 2578, 2580. For of the respondent, may be waived by the former requirement, see 2 K. S. the written consent of the latter. 116, § 21; Mount v. Mitchell, 31 N. Y. (Co. Civ. Proc, §§ 1305, 2575.) See 356; Davies v. Skidmore, 5 Hill, 501; id., §§ 810-816, for general regula- Matter of Espie, 3 Redf. 270. tions, as to the form, etc., of under- 53 Co. Civ. Proc, §§ 2578, 2580. There takings. After the filing and service is a difference of opinion whether, on of a sufficient notice of appeal, and of appeals under section 2578, more than an undertaking to render the appeal one undertaking ia necessary for any effectual, the matter is removed from purpose, that is, whether the under- the jurisdiction of the Surrogate's taking designated in the section is Court, and proceedings predicated sufficient both to perfect the appeal upon the insufficiency of an undertak- and also to efl'ect a stay. Judge Eum- ing filed by the appellant must be ini- sey, in his Practice (vol. 2, p. 754), tiated by the respondent in the appel- expresses the opinion that " no secu- late court. Du Bois v. Brown, 1 Dem. rity need be given to perfect the appeal 317.) As to justification of sureties, in the cases mentioned by section 2578, in New York county, see Rule XVI. because such appeals are specially ex- No undertaking is required by the cepted from the operation of section public administrator of New York 2577." Rollins, S., in Fernbacher v. § 1142. Appeals. 932 cution of 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 re- quired according to law, the appellant must give an undertaking with at least two sureties, in a sum therein specified, to the effect 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 the affirmance, or dismissal, surrender himself, in obedience to the decree or order, to the custody of the sheriff of the county, wherein he was directed to be committed.^* § 1142. Proceedings in other cases, when stayed. — Except in the cases above mentioned, a perfected appeal has the effect to stay all proceedings to enforce the decree or order appealed from, which a perfected appeal from a judgment in an action has, as prescribed in section 1310 of the Code.^^ But it is expressly pro- Fernbacher (4 Dem. 227, 247), made Newberger, 15 Week. Dig. 133; Matter the remark (obiter) that in cases pro- of Arkenburgh, li App. Div. 44. It Tided for in sections 2578, 2579, the seems, that, where an executor appeals appeal is perfected by giving the individually from the decree, declar- special security, and thereupon pro- ing void a legacy attempted to be given ceedings are stayed by the operation to him in the will of his testator, and of section 2584. In New York county, directing him to distribute the amount the surrogate has held, that to perfect among the next of kin, an undertaking an appeal in any case, including ap- filed by him in the sum of $250, is suf- peals from orders and decrees men- ficient, and an additional undertaking tioned in section 2578, an undertaking under sections 2578, 2580, is not re- fer costs and damages must be given quired to stay execution. (Du Bois v. as required by section 2577. (Matter Brown, 1 Dem. 317.) Where one ap- of CluflF, 7 St. Eep. 753; 11 Civ. Proc. peals from a decree, adjudging him Rep. 338; Matter of Witmark, 15 St. entitled to a certain sum, on the Rep. 745.) ground that he is entitled to more, B4 Co. Civ. Proc, § 2579. Upon a and excepts from the notice of appeal subsequent appeal to the Court of Ap- so much of the decree as is in his peals, an undertaking, under section favor, the execution of the decree is 1326, is all that is necessary. (Mat- not stayed, as respects the excepted ter of Pye, 21 App. Div. 266.) The portion. (Matter of BuUard, 4 Civ. Appellate Division may itself grant Proc. Eep. 284.) In Matter of Kav- the stay. (lb.) As to actions on anagh (29 St. Rep. 215), pending an undertaking, see §§ 1309, 2579, 2581. appeal by one of the legatees from a The rules of procedure in ordinary ap- decree declaring several legacies to be peals, with reference to requiring a void, a decree for distribution was new undertaking, where the sureties made, from which the appealing lega- beeome insolvent, etc., and permitting tee also appealed, and gave an under- a deposit in lieu of an undertaking, taking for ".5250. Held, on a motion govern appeals from surrogates' de- by one of the next of kin to enforce erees. See Co. Civ. Proc, §§ 1306, payment of his share, that the stay 1308, 2575. secured by the filing of this undertak- 55 Co. Civ. Proc, § 2584. See Sud- ing was intended only to prevent ac- low V. Pinckney, 1 Dem. 158; Stern v. tion by the executors, so far aa may 933 Appeals. § 1142. vided that an appeal from a decree of the surrogate, admitting a will to probate, or granting letters testamentary, or of adminis- tration, or from an order or judgment of the Appellate Division of the Supreme Court affirming such decree, does not stay the issu- ing of letters, " where, in the opinion of the surrogate, manifested by an order, the preservation of the estate requires that the letters should issue. Letters so issued confer upon the person named therein all the powers and authority, and subject him to all the duties and liabilities of an executor or administrator in an ordi- nary case, except that they do not confer power to sell real property by virtue of a provision in the will, or to pay or satisfy a legacy, or to distribute the unbequeathed property of the decedent, until after the final determination of the appeal." ^* , It seems to be plain enough, from this language, that an appeal from a decree granting letters will stay the issue of letters, unless, in the surro- gate's opinion, the preservation of the estate requires the issue of letters.^^ In a proper case, therefore, he may make an order, reciting the necessity there is for an immediate grant of letters, and vacate the stay effected by the appeal. There is no similar provision in respect to an appeal from a decree revoking probate, or revoking letters testamentary, of administration, or of guard- ianship ; or from a decree or an order, suspending an executor, administrator, or guardian, or removing or suspending a testa- mentary trustee, or a freeholder appointed to execute a decree for the sale of real property, or appointing a temporary administrator, or an appraiser of personal property; such an appeal does not stay the execution of the decree or order appealed from.®^ be necessary for the protection of the pended by an appeal from the decree interests of the appellant. The execu- granting his letters, and so remains tors should set aside and retain a sum unless the surrogate by order confers sufficient to provide for a possible re- upon him the limited powers in that versal on appeal, and then proceed to section specified. (Matter of Place, 5 carry out the directions of the decree, Dem. 228.) so far as the same will not be affected 57 Application for the issue of let- by the success of the appellant. ters to executors under a will con- 56 Co. Civ. Proc, § 2582, as amended tested but admitted to probate, pend- 1900. And in case letters shall have ing an appeal from the decree, — de- been issued before such appeal, the nied, when the temporary adminis- executor or administrator, on a like trator had given ample security, the order of the surrogate, may exercise securities of the estate were invested the powers and authority, subject to in permanent form, and there was no the duties, liabilities, and exceptions present requirement of a sale of any above provided. (lb.) See Thomson of them. (Matter of Gihon, 27 Misc. v. Tracy, 60 N. Y. 174; Matter of 626; 59 N. Y. Supp. 494.) Gihon, 48 App. Div. 598; Newhouse 58 Co. Civ. Proc, § 2583; Stout v. V. Gale, 1 Redf. 217. The authority Betts, 74 Hun, 266; 26 N. Y. Supp. of an administrator with the will of 809. An order directing an executor a decedent annexed is ipso facto sus- to file an official bond within twenty 1143. Appeals. 934 § 1143. Making and settling a case and exceptions. — We have already pointed out that, if a party wishes to appeal from a sur- rogate's decree, on the trial of an issue of fact, he must procure from the court such findings or refusals to find, as will present, through appropriate exceptions, the questions he desires to have reviewed.^^ In the absence of exceptions, the appellate court is powerless to reverse.^" The appeal may be taken upon questions of law, or upon the facts, or upon both;®^ as under the former practice.®^ If the appeal is from a decree rendered upon a trial of an issue of fact, it must be heard on a case made and settled by the surrogate, as upon an appeal in an action.^' This provi- sion is merely declaratory of the power of the appellate court to review both the facts and the law on appeal from surrogate's decrees. It does not, even by inference, require an appellant de- siring a review upon the facts to so specifically state in his notice of appeal.^* The rule that in an action tried by a jury, a motion for a new trial is necessary to enable the appellate division to days after service of a copy of the order, provided, in case of his failure so to do, as follows : " It is hereby ordered that the letters testamentary be revoked and annulled." The ex- ecutor perfected an appeal from the order within the time specified; after the expiration of which, an applica- tion was made for an absolute decree of revocation. Held, that the applica- tion must be denied, on the ground that, either the order in question was itself a decree revoking letters, in which case a further decree was un- necessary, — or it was not such a de- cree, in which event it was not within section 2583, and the appeal operated as a stay. ( Halsey v. Halsey, 3 Dem. 196.) 59 In the absence of findings, sepa- rately stated, there is nothing to re- view. (Matter of Widmayer, 52 App. Div. 301; 65 N. Y. Supp. 83; Matter of Damon, 47 App. Div. 315; 61 N. Y. Supp. 997.) But where the referee- states separately his findings, the sur- rogate who confirms the report need not do so. (Matter of Bettman, 65 App. Div. 229.) 60 See § 114, anie, as to having find- ings found by surrogate or referee. As to the necessity of findings and excep- tions, see, in addition to the cases there cited. Matter of Sprague, 125 N. Y. 732; s. c. more fully, 35 St. Rep. 450 ; Matter of Peck, 39 St. Rep. 234; 21 Civ. Proc. Rep. 85. Excep- tions to a referee's report are a suffi- cient basis for an appeal, though none are filed to the surrogate's decision thereon. (Matter of McAleenan, 53 App. Div. 193; 65 N. Y. Supp. 907; affd., 165 N. Y. 645; Matter of Yetter, 44 App. Div. 404; 61 N. Y. Supp. 175 ; affd., 162 N. Y. 615.) An order based on affidavits, may be reviewed without exceptions. (Matter of Scott, 49 App. Div. 130; 62 N. Y. Supp. 1059.) 61 Co. Civ. Proc, § 2576. 62 Howland v. Taylor, 53 N. Y. 627. 63 Co. Civ. Proc, § 2576. As to the necessity of a ease made, see Matter of Walrath, 69 Hun, 403, and cases cited. 64 Matter of Stewart, 135 N. Y. 413. A notice that the appeal is " from the decree and each and every part thereof " is sufficient to authorize a review upon the facts. (lb.) In Burger v. Burger (111 N. Y. 523; 20 St. Rep. 105), it was held, that if a notice of appeal from a decree admit- ting a will to probate, recites that it is upon the facts, as well as the law, it is sufficient to give the appellate court jurisdiction to review the facts; an exception to the surrogate's find- ings of fact is neither necessary nor proper. But where the appeal is also upon the law, only such questions of law can be considered as have been properly raised by objection. 935 Appeals. §114^ review tlie facts, is based on reasons wholly inapplicable to the case of a trial before a surrogate: consequently no exceptions are necessary for the proper presentation of the question whether there should be a new trial before a jury.*^ Either party may, upon the settlement of a case, request a finding upon any question of fact, or a ruling upon any question of law, and an exception may be taken to such a finding or ruling, or to a refusal to find or rule.®" The General Eules of Practice 32 and 33 requires a case to be made and served within thirty days after service of a copy of the decree or order appealed from, but permit the surrogate to allow further time. Where the right of an appellant to serve a notice of appeal has expired by limitation, his time to make and serve a ease on appeal will not be extended f and the surrogate has no power to extend the time to serve a case on appeal, after the period within which such service must be made, binder the General Kules of Prac- tice, has expired.®* On the other hand, if the time for perfecting the appeal by filing security has not expired, the surrogate may enlarge the time for making and serving a case.®* The case is to 66 Burger v. Burger, supra; Matter of Stewart, 135 N. Y. 413; Matter of Patterson, 40 St. Eep. 919; 16 N. Y. Supp. 146. 66 Co. Civ. Proc, § 2545. In Burger V. Burger ( supra ) , it was held that section 2545 has no relation to findings on controverted facts, or refusals to find facts not conclusively established. The court said : " The rule under the Code is, that an appeal on the facts from the decree of a surrogate admit- ting, or refusing to admit, a will to probate brings up for review in the Supreme Court the question of the suf- ficiency, weight, or preponderance of evidence, and the general merits of the decision; and that it is not necessary that any exception should have been taken to the findings of fact, or that there should have been any request for findings in order to give the General Term jurisdiction to review the facts, and reverse or aflBrm the decision of the surrogate thereon." Until settle- ment of a case, the surrogate cannot be required by the parties to a probate proceeding to pass upon proposed find- ings of fact and conclusions of law. (Matter of Hoyt, 5 Dem. 284.) When the case and exceptions are settled and filed, the clerk is required to certify them to the appellate court, together with the other papers and proceedings prescribed by sections 1344, 1353, 2585. He should include all papers recited in the decree appealed from. (Matter of Mullen, N. Y. Law J., Feb. 7, 1890.) The clerk will not be required by man- damus to certify and return to the county clerk as part of the papers, on appeal from an order of the surrogate, a paper which the surrogate has stated was never brought to his attention until the ease was presented for settle- ment, although such paper was upon file. (Matter of Studwell, 8 Civ. Proc. Rep. 414.) 67 Matter of Cluff, 11 Civ. Proc. Rep. 338. 68 De Lamater v. Havens, 5 Dem. 53. 69 Matter of Williams, 6 Misc. 512; 27 N. Y. Supp. 433; Tilby v. Tilby, 3 Dem. 258 ; where it was held, that the provisions of section 2572, limiting the time for taking an appeal from a Sur- rogate's Court to thirty days from the time of service of a copy of the decree or order complained of, and of section 2577 declaring that, to render an ap- peal effectual for any purpose, the appellant must give an undertaking to the effect specified; and General Rules of Practice 32 and 33. requiring a case to be made and served within a speci- fied period after service of a copy of the decree or order, but permitting the surrogate to allow further time, etc., are to be construed independently of each other. § 1144. Appeals. 936 be "settled by tbe surrogate as prescribed by law" (§ 2576); that is, where the trial is by a referee, e. g., on a judicial settle- ment of accounts, the case is to be settled by the referee.'"' The correct practice on appeal from a decree or order, in which it is unnecessary to prepare and settle a case, is, for the parties to submit to the clerk of the court such a return as they deem them- selves entitled to, whereupon the clerk will determine what papers he should certify to the appellate court. ^^ § 1144. Principles of determination of surrogate appeals It has always been understood that appeals from surrogates' decrees were to be determined, not on the principles governing the deter- mination of a common-law writ of error, but on those governing appeals under the old chancery practice.''^ The distinguishing feature of an appeal in equity, as contrasted with a writ of error at law, was that the appeal was substantially a rehearing, on which the appellate court examined the whole case as fully as if it were brought before it in the first instance, and determined all the questions involved, whether of law or fact, without being in any way concluded by the decision of the court below. It fol- lowed that the appellate court would not reverse a decree merely because improper evidence was admitted by the surrogate,''^ or proper evidence was rejected by him,'^* if it appeared, on the one hand, that there was competent evidence sufficient to sustain it, or, on the other, that, after considering the rejected evidence, the decree was still sustainable on the facts shown. In other words, the appellate court might treat the appeal as if it were an origi- nal hearing, and must make such a decree as in its judgment ought to have been made in the first instance.'® It is expressly 70S«e § 118, mte. If it is desired 75 Burger v. Burger, 111 N. Y. 523; to amend or modify the testimony, 20 St. Rep. 105. Only those questions it should be done before the report is in which the appellant has an interest confirmed. (Matter of Dietzel, 36 will be considered. (Matter of Allen, App. Div. 300; 55 N. Y. Supp. 323.) 81 Hun, 91; 30 N. Y. Supp. 683; affd., n Matter of Kavanagh, N. Y. Law 151 N. Y. 243.) The court will not J., Mar. 10, 1890. Upon what papers determine, for the first time, a ques- an appeal from an order, setting aside tion of fact which was not examined a report as to claim against decedent's and determined below, but was as- estate, is to be heard, see Foote v. sumed for the purpose of the decision Valentine, 48 Hun, 475. of other points; but if such question 72 See Clapp v. Fullerton, 34 N. Y. is material to the other questions 190. raised on the appeal, the court may 73 Schenck v. Dart, 22 N. Y. 420 ; examine it, for the purpose of seeing Clapp V. Fullerton, 34 id. i90; Robin- what probability there is of the ap- son V. Raynor, 28 id. 494; Matter of pellant's sustaining the point on a Paige, 62 Barb. 476; Brick v. Brick, retrial. (Christy v. Clarke, 45 Barb. 66 N. Y. 144. 529.) Compare Lee v. Lee, 39 id. 74 Horn V. Pullman, 72 N. Y. 269. 172; Dobke v. McClaran, 41 id. 491; 937 Appeals. § 1145. provided that a decree or order shall not be reversed for an error in admitting or rejecting evidence, unless it appears to the appel- late court that the exceptant was necessarily prejudiced thereby.^* To justify a reversal under this provision, it must appear that, if competent evidence, which was rejected, had been received, the appellant's case would not have failed, or that, without improper evidence, which was received, the respondent's case was deficient." Where the evidence is not returned, the facts found by the court or referee must be assumed to be justified by the proof. ^* An ap- peal from a decree or an order brings up for review, by each court to which the appeal is carried, each decision to which an exception was duly taken by the appellant.'* § 1145. Powers of Appellate Court — Under the former practice, however, there was a distinction, as to the powers of the appellate court, between appeals in probate cases and other appeals. On appeals in probate cases, the General Term had only the powers of the Circuit judge when such appeals were taken to him,^" that is, to aiErm or reverse-the surrogate's decree. It could not make such other decree as it thought the surrogate should have made. This distinction no longer exists ; — the rule established by the Code being that which governs equity appeals generally. It is, therefore, provided, that " where an appeal is taken upon the facts, the appellate court^^ has the same power to decide the ques- Smith V. Remington, 42 id. 75; Moore Smith, 96 N. Y. 661; Harper v. Harper, V. Moore, 21 How. Pr. 211. 1 Sup. Ct. (T. & C.) 351. Where the 76 Co. Civ. Proc, § 2545 ; Matter of evidence, on a trial of an issue of fact Torkingtou, 79 Hun, 128; 61 St. Eep. by the surrogate, is so evenly balanced 426 ; Matter of Degen, 89 Hun, 143 ; that a determination either way would 34 N. Y. Supp. 1137; Matter of Sea- not be reversed on appeal, it may not grist, 1 App. Div. 615; 37 N. Y. Supp. be said that the losing party is not 496; Matter of Miner, 146 N. Y. 121; prejudiced by admission of incompe- 66 St. Kep. 265. An error in receiving tent testimony, and the admission in evidence declarations of the decedent thereof is error requiring a reversal, in behalf of his estate, upon the trial (Matter of Eysaman, 113 N. Y. 62.) of a claim against the estate, must ^8 Wheelwright v. Rhoades, 28 Hun, have been necessarily prejudicial to 57. the claimant, and will justify a re- 79 Co. Civ. Proc, § 2545, fifth sen- versal of the decree. (Matter of Bron- tence. This provision was not eon- son, 67 Hun, 237; 22 N. Y. Supp. 96.) tained in the revision commissioners' See also Matter of Bedlow, 67 Hun, original draft of this section. How it 408; 22 N. Y. Supp. 290; Matter of is to be reconciled with Co. Civ. Proc, Mellen, 56 Hun, 553; 31 St. Rep. 770; § 1337, as construed in Matter of Ross 9 N. Y. Supp. 929; Matter of Wil- 87 N. Y. 514, query? Hams, 46 St. Rep. 791; 19 N. Y. Supp. 80 2 R. S. 608, § 95. 778; Matter of Chamberlain, 46 St. 81 This means the Supreme Court Rep. 841; 19 N. Y. Supp. 1010; Matter only. (Matter of Ross, 87 N. Y. 514.) of Potter, 161 N. Y. 84. And see Davis v. Clark, id. 623. llie 77 Snyder v. Sherman, 88 N. Y. 656 ; rule laid down in Hewlett v. Elmer affg. 23 Hun, 139. See Matter of (103 N. Y. 156), that the Supreme § 1145. Appeals. 936 tions of fact which the surrogate had ; and it may, in its discretion, receive further testimony or documentary evidence, and appoint a referee." *^ So, upon an appeal from a surrogate's decree open- ing, vacating, modifying, or setting aside a decree or order of his court, or granting a new trial for fraud, etc., the appellate court must review the determination as if an original applica- tion was made to it.®^ It is also provided that " the appellate court may reverse, afBrm, 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 necessary or proper, grant a new trial or hearing." ^* Court has the power and it is its duty " to decide the questions of fact which were before the surrogate," was fol- lowed upon appeal, on the facts and on questions of law, from a decree upon an executor's accounting in Matter of McGraw, 45 Hun, 354. See also Matter of Drake, 45 App. Div. 206; 60 N. Y. Supp. 1020; Matter of Brunor, 21 App. Div. 259; Matter of Laudy, 148 >J. Y. 403; Matter of Pike, 83 Hun, 327; 31 N. Y. Supp. 689; Matter of Hamilton, 76 Hun, 200; 27 N. Y. Supp. 813; Matter of Warner, 53 App. Div. 565; 65 N. Y. Supp. 1022; Matter of Welling, 51 App. Div. 355; 64 N. Y. Supp. 1025; Matter of Rogers, 10 App. Div. 593; 42 N. Y. Supp. 133. 82 Co. Civ. Proc, § 2586. The power conferred upon an appellate court to receive, in its discretion, further testi- mony or documentary evidence, and to appoint a referee, should be cautiously used. (Matter of Hannah, 45 Hun, 561.) Before the Revised Statutes, the Court of Chancery proceeded on appeals from the decrees of surrogates, according to the course of the civil law, and might hear new testimony and call to its aid the verdict of a jury upon disputed questions of fact (Vanderheyden v. Reid, 1 Hopk. Ch. 408; Van Wvck v. Alley, id. 552; Scribner v. Williams, 1 Paige, 550 ) , and the same rule seems to have been in force under the Revised Statutes, and until the reorganization of the courts under the Constitution of 1846, and the adoption of the Code of Pro- cedure. (Williamson v. Williamson, 6 Paige, 298; Case v. Towle, 8 id. 479.) It was then held, that the determina- tion of the appeal must be made upon the proofs contained in the surrogate's return; and the appellate court could not receive further evidence. (Devin V. Patehin, 26 N. Y. 441; Abbey v. Christy, 49 Barb. 276; White v. Story, 2 Hill, 543.) It mignt reverse either on the law or the facts. (Marvin v. Marvin, 3 Abb. Ct. App. Dee. 192; Johnson v. Hicks, 1 Lans. 150.) 83 Co. Civ. Proc, § 2481, subd. 6. The power of the court is limited to the grounds stated. (Matter of Haw- ley, 100 N. Y. 206.) The inherent power of a court over its records to modify, amend, and vacate them, in- dependent of special statutory author- ity, cannot be exercised by an appel- late court. ( lb. ) See Howell v. How- ell, 30 Hun, 625 ; Booth v. Kitchen, 7 id. 255, 260. A decree on a judicial settlement, which followed a decision of the General Term in an action to construe the will, which held the widow entitled to have a mortgage on lands devised to her paid by the ex- ecutors, which last decision was after- ward reversed by the Court of Appeals, should be modified accordingly. ( Mat- ter of Cahen, 26 St. Rep. 860; s. c. without opinion, 117 N. Y. 626.) 81 Co. Civ. Proc, § 2587. Where an executor appeals from a decree ren- dered upon the settlement of his ac- count, which is objected to, each of the parties to the accounting, the respond- ents, though not appealing therefrom, are still at liberty, under this section, to specify any item in the account which they deem erroneous against them. (Freeman V. Coit, 27 Hun, 447.) See Matter of Lawson, 42 App. Div. 377; 59 N. Y. Supp. 152; Matter of Mayer, 84 Hun, 539; 32 N. Y. Supp. 850. See §§ 1293-1323 for the general 939 Appeals. § 1145. Where probate of a. will is contested on the grounds of want of execution, and of undue influence, evidence being adduced to sus- tain the latter ground, and the surrogate rejects the instrument on the former without passing on the latter, the court, on appeal, cannot reverse the decree and direct the surrogate to admit the will: it should remit the proceedings to the surrogate, to be heard on the question of undue influence.^^ But in a ease where the only issue presented by the record is as to the due execution of the will, on the testimony of the subscribing witnesses, between whom there was no contradiction, the question is simply one of legal inferences, and the appellate court may, on reversing a decree re- fusing probate, order the probate, without sending the case back to the surrogate.** In other than prohate cases, the appellate court may now, as heretofore, upon a reversal or modification of the decree appealed from, remit the proceedings to the surrogate, with instructions to him to enter a decree, upon the principles settled by the decision on the appeal, or to take such further proceedings as may be necessary.*^ It may be stated, as a general rule, that the appellate court will not usually disturb the surrogate's decision as to the facts, where the evidence is evenly balanced and directly contra- dictory, and the question is merely one of credibility.** ITo par- provisions relating to appeals and tions to proceed in an accounting, award of restitution. upon the basis of facta established 85 Dack V. Dack, 84 N. Y. 663. by that adjudication, the surrogate 8« Matter of Wilcox, 131 N. Y. 610; should deem the adjudication final and 43 St. Kep. 191. It appearing, how- conclusive as to those facts, even ever, that there was an issue concern- against one who was not made a party ing an alleged alteration, — Held, that to the appeal. ( Clayton v. Wardell, the General Term should have re- 2 Bradf. 1.) Upon affirmance of an mitted the proceedings to the surro- order granting leave to issue ex- gate for the trial of that issue. (lb.) ecution upon a judgment after the 8T Matter of Kellogg, 104 N. Y. 648 ; death of the judgment debtor, the Gardner v. Gardner, 7 Paige, 112; successful party is entitled to enter Halsey v. Van Amringe, 6 id. 12; Mat- and docket with the clerk of the sur- ter of Forman, 1 Tuck. 205. If a por- rogate's county a judgment of affirm- tion of a decree be appealed from and ance, establishing the surrogate's de- reversed, the remainder stands, except cree and awarding costs as for similar so far as it is necessarily aflfected by services in an action. Wadley v. Da- the reversal. In such case, upon final vis, 38 Hun, 186. ) Where an order re- accounting, the whole accounting is moving an executor upon one ground, not opened, but the accounts, as settled is erroneous, but other sufficient by the surrogate, will be altered only grounds may exist, the order may be pro tanto, to the extent necessary to reversed without prejudice to the right carry out the decree of the surrogate, to renew the application. (Matter of as modified by the decree above. (Mor- Pye, 18 App. Div. 309; 45 N. Y. Supp. gan v. Andariese, 1 Bradf. 133.) 836.) Where, however, the appellate court 88 Robinson v. Smith, 13 Abb. proceeds, as it has power, beyond an Pr. 359 ; Crolius v. Stark, 64 Barb, affirmance or reversal, and adjudicates 112; Matter of Hunt, 110 N. 1". the cause, remitting it with direc- 278; Matter of Clark, 82 Hun, § 1146. Appeals. 940 ticular rule can be laid down as to how great a preponderance of evidence on the part of the appellant is necessary to secure a re- versal on a question of fact, but it is said that the court will more readily reverse the decree of a surrogate on conflicting evidence, than it will set aside the verdict of a jury.*® The court should consider only legal evidence in determining whether a decree should be reversed or affirmed.®* § 1146. Awarding a jury trial. — There are two classes of cases, in which a trial by jury may be had, of a question of fact arising in the course of a surrogate's proceedings, dependent upon two separate provisions of the Code. One class comprises jury trials, in the first instance, as a substitute for a hearing and decision by the surrogate alone; and the other includes jury trials occurring during the progress of an appeal from certain of his decrees, and after the appellate court has decided upon a reversal. The first provision of the Code, referred to, is that the surrogate may, in his discretion, make an order for such a trial of any controverted question of fact, arising in a special proceeding for the application of a decedent's real property to the payment of his debts.®' Such a trial can be reviewed, in the first instance, only upon a motion for a new trial ; which may be granted by the surrogate, or the court in which the trial took place, or, if it took place at a trial term of the Supreme Court, by the Supreme Court, in a case where a new trial of specific questions of fact, tried by a jury, pur- suant to an order for such a trial, made in an action, would be granted.®^ An appeal which will lie to the Supreme Court, may be taken from an order, made upon the motion for a new trial, as if the order had been made in an action, and with like effect.®^ The other provision of the Code is to the effect that " where the reversal or modification of a decree by the appellate court is founded upon a question of fact, the appellate court must, if the appeal was taken from a decree made upon a petition to admit a will to probate, or, to revoke the probate of a will, make an order, directing a trial, by a jury, of the material questions of .341; 31 N. Y. Supp. 476; Coale v. be against the appellant. (Wallace Coale, 63 App. Div. 32; 71 N. Y. Supp. v. Storry, 4 Hun, 791.) 214. 90 Matter of Kelemen, 57 Hun, 165 ; 89 Lake v. Ranney, 33 Barb. 49 ; 32 St. Rep. 937. Rollwagen v. Rollwagen, 3 Hun, 121 ; 91 Co. Civ. Proc., § 2547. And see See Eobinson v. Raynor, 28 N. Y. 494; ante, § 863. Kyle V. Kyle, 67 id. 400, 409; Oilman 92 Co. Civ. Proc., § 2548, as amended V. Gilman, 3 Hun, 22. Where the will 1895. See id., § 999; Matter of Gan- was not returned to the appellate non, 2 Misc. 329; 21 N. Y. Supp. 960. court, every presumption was held to 93 Co. Civ. Proc, § 2549. 941 Appeals. § 1146. fact, arising upon the issues between the parties." ^* The order- ing of a jury trial, in case of a reversal, is a peremptory require- ment, unless the case is one in which the court can properly take the facts from the jury and determine the question as one of law.^® Where, however, there is no conflict in the facts and the matter is one of conclusions from the facts, a jury trial Avill not be awarded.^* If there was no evidence below in behalf of the contestants, which, standing alone, was sufficient to defeat the probate, such failure of evidence is to be regarded as raising a question of law only, and on reversal of a decree revoking pro- bate, the court will not send the case to a jury, but will confirm the original decree admitting the will.®^ So, the provision that " after the trial, a new trial may be granted as prescribed in section 2548 " (supra), refers to cases in which a new trial may be granted, and not to the court before which an application therefor may be made. It gives no authority to the surrogate to grant a new trial.®® 94 Co. Civ. Proc, § 2588. It may be 97 Matter of Eapplee, 66 Hun, 5.58 ; doubted whether, since the enactment affd., 141 N. Y. 553; Matter of Mar- of section 2653a, an appeal in a pro- tin, 98 id. 193. On a reversal, bate case, except upon questions of on the facts, of a decree granting law, is the advisable course to pursue, or refusing probate, the court could Such appeals are not to be encouraged, not formerly direct the surrogate (Matter of Beck, 6 App. Div. 211; 39 to enter a, decree of probate, but N. Y. Supp. 810; affd., 154 N. Y. 750; was required to couple the order of Matter of Austin, ,35 App. Div. 27S ; reversal with a direction for a jury 55 N. Y. Supp. 52.) trial. See 2 E. S. 66, § 57; id. 609 95 Matter of Laudy, 148 N. Y. 403 ; § 98 ; Sutton v. Ray, 72 N. Y. 482 42 N. E. 1061; modifying 78 Hun, 479. Tyler v. Gardiner, 35 N. Y. 559, 596 98 Matter of Hunt, 110 N. Y. 278; Howland v. Taylor, 53 id. 627. In the explaining Matter of Martin, 98 id. last-mentioned ease, where the probate 193; Sutton v. Ray, 72 id. 482. See was contested on the question of the Matter of Smith, 96 id. 661; Matter genuineness of the will, the Court of of Wilcox, 131 id. 610; Thompson v. Appeals directed a jury trial. See Stevens, 62 id. 634. For recent cases, also Kingsley v. Blanchard, 66 Barb, in which the appellate court awarded 317. See Matter of Laudy, 148 N. Y. a jury trial, see Matter of Perego, 65 403. Hun, '478; 20 N". Y. Supp. 394; Van 98 Matter of Patterson, 63 Hun, 529 ; Orman v. Van Orman, 34 St. Eep. 44 St. Rep. 842. Where the issues of 824; 11 N. Y. Supp. 931; Matter of a contested probate have been tried in Mahoney, 38 St. Rep. 344; 14 N. Y. the Supreme Court and a verdict ren- Supp. 335; Matter of Drake, 45 App. dered, the Special Term has no power Div. 206; 60 N. Y. Supp. 1020; Mat- to direct entry of judgment thereon, ter of Tompkins, 69 App. Div. 474; but the papers must be transmitted to 74 N. Y. Supp. 1002; Matter of Van the Surrogate's Court. (Matter of Houten, 11 App. Div. 208; 42 N. Y. Laudy, 35 App. Div. 542; 53 N. Y. Supp. 919; Matter of Brunor, 21 App. Supp. 98; Matter of Campbell, 48 Div. 259; Matter of Wells, 45 id. 626; Hun, 417.) Compare Matter of Bud- 60 N. Y. Supp. 1100; Matter of Dixon, long, 54 id. 131; 26 St. Rep. 863. 42 App. Div. 481; 59 N. Y. Supp. 421; See generally as to Bew trials, after Matter of Gallup, 43 App. Div. 437; a verdict, Marvin v. Marvin, 3 4bb 60 N. Y. Supp. 137. Ct. App. Dec. 192; McKinley v. Lambi § 1147. Appeals. 942 TITLE SECOND. APPEALS TO THE COUET OF APPEALS. § 1147. When an appeal lies. — An appeal, in surrogate causes, from the Supreme Court is to the Court of Appeals. The pro- vision of section 2585 of the Code, requiring that on " appeal from a decree or an order of a Surrogate's Court, * * * the judgment or an order made thereupon must be entered," does not require the entry of a judgment before an appeal can be taken to the Court of Appeals from the decision of the Appellate Division ; but an appeal from its order is proper.^* The order appealed from must be a final one. Thus an order reversing a probate decree and directing a jury trial is not a final order which is appeal- able ;* though a reversal for error of law remitting the proceedings back to the surrogate, or the granting of a new trial or a new hear- ing before the surrogate, is appealable to the Court of Appeals.^ So an order reversing an order refusing an accounting, and re- mitting the proceedings to the surrogate for an accounting as pe- titioned for, is not a final order, and is not reviewable.* But a decision of the Appellate Division, on appeal from a surrogate's decree settling the accounts of an executor, is appealable, not- withstanding the remission of the cause to' the Surrogate's Court that he might conform the decree to their judgment.* So, the appellate court's reversal of a surrogate's order denying a motion to vacate certain decrees made upon an accounting, and vacating such decrees, is the necessary termination of the proceeding and is reviewable in the Court of Appeals, in a case where the Ap- pellate Division had no power to make the order by reason of the bar of the Statute of Limitations.^ But an affirmance of such an order is not reviewable® as it is not one " finally determining " the proceeding.^ 64 Barb. 199; Matter of Laudy, 14 v. Hoguet, 66 id. 358. Compare Mes- App. Div. 160. The surrogate cannot serve v. Sutton, 3 id. 546. make any order or decree other than 4 Stimson v. Vroman, 99 N. Y. 74 ; that directed by the appellate court. Matter of Prentice, 160 id. 568. (Matter of De Haas, 24 Misc. 258; 53 5 Matter of Tilden, 98 N. Y. 434; N. Y. Supp. ) 565.) s. c. with opinion below, 1 How. Pr. 99Libbey v. Mason, 112 N. Y. 525. (N. S.) 409. A surrogate's order va- 1 Talbot V. Talbot, 23 N. Y. 17; eating satisfaction of a decree is final. Marvin v. Marvin, 3 Abb. Ct. App. (Matter of Regan, 167 N". Y. 338.) Dee. 192; Sutton v. Ray, 72 id. 482, 6 Matter of Small, 158 N. Y. 128; and cases infra. 29 Civ. Proc. Rep. 57. 2 Talbot V. Talbot, supra. 7Ib. ; Van Arsdale v. King, 155 N. 8 Matter of Latz, 110 N. Y. 661; Y. 325; City of Johnstown v. Wade, Roe V. Boyle, 81 id. 305; Whittlesey 157 id. 50. 943 Appeals. § 1148. § 1148. What questions reviewable. — The jurisdiction of the Court of Appeals is limited to a review of (juestions of law only; hence where the Appellate Division has unanimously decided that there is evidence supporting, or tending to sustain, a iinding of fact, there can be no review.^ So, too, a reversal of the surro- gate's decree, where it is on the facts, and directing a jury trial, is not reviewable in the Court of Appeals.® A reversal by the ap- pellate court for error in the admission of evidence, iS' a reversal for error of law, and not for error of fact; hence, in such a case, a jury trial, in a probate matter, cannot be ordered, even if such trial can be ordered in any ease by the Court of Appeals, as to which there is doubt.-'** As the court's jurisdiction is limited to the review of questions of law, it will not entertain an appeal from an order denying a motion for a new trial, and to set aside the verdict of a jury in a probate case sent by the surrogate to a jury, for the purpose of determining whether the verdict was against the weight of evidence.-'^ A question of fact depending upon conflicting testimony will not be entertained by the court,^^ but a finding of fact, unsupported by any evidence, is an error of law and may be reviewed. ^^ The provision of the Code (§ 2586) that, where an appeal is taken upon the facts, the appellate court has the same power to decide the questions of fact which the sur- rogate had, applies only to the Supreme Court.-** The evidence may be looked into only for the purpose of seeing whether there is competent evidence to support the conclusions of fact found by the surrogate ; if such evidence is found, the court is concluded by the finding.'^ Mere matters of discretion are not reviewable. 8 Co. Civ. Proc, § 191, as amended subd. 11, by providing that appeals to 1895. See id., § 1337; Matter of the Court of Appeals from an order Rogers, 153 N. Y. 316 ; Matter of Hall, or judgment affirming, reversing, or 164 id. 196. For the rule prior to the modifying an order, etc., of a Surro- amendment of section 191, see Matter gate's Court, should be heard and de- of Ross, 87 N. Y. 514; Marx v. Mc- cided in conformity with the laws and Glynn, 88 id. 357; Matter of Darrow, practice regulating such appeals and 95 id. 668; Matter of Higgins, 94 id. the hearing and decision thereof in 554; Davis v. Clark, 87 id. 623; force on April 30, 1877,— did not have Kingsland v. Murray, 133 id. 170; 44 the effect of giving the Court of Ap- St. Rep. 515; Ackerman v. Aekerman, peals jurisdiction to review a question 26 id. 666; Matter of Flynn, 49 id. of fact, depending upon conflicting 388; Matter of Bolton, 141 N. Y. 554. evidence, upon appeal from a judg- 9 Burger v. Burger, 111 N. Y. 523; ment of the Supreme Court affirming flatter of Thorne, 162 id. 238; 56 a decree of a surrogate. N. E. 625. 13 Matter of Rogers, 153 N. Y. 316. 10 Matter of Smith, 96 N. Y. 661. l* Davis v. Clark, 87 N. Y. 623. See See Howland v. Taylor, 53 id. 627. § 1145, ante. 11 Matter of Bull, 111 N. Y. 624. 15 Matter of Rogers, 153 N. Y. 316; 12 Hewlett V. Elmer, 103 N. Y. 156. Matter of Valentine, 100 id. 607; Mat- In that case, it was held, that L. 1883, ter of Cottrell, 95 id. 329. Where the c. 229, amending Co. Civ. Proc, § 3347, court entertains a reasonable doubt § 1149. Appeals. 944 Thus, the court -will not review a decision of the Appellate Division affirming a decision of a surrogate punishing an executor for con- tempt in refusing to pay over a sum found due, upon the settle- ment of his accounts, vs^here the only defense interposed con- sisted of allegations of insolvency and inability to pay, vs^hich rested upon conflicting evidence and were addressed to the discre- tion of the court below.^® So, too, an order of the surrogate re- quiring a life tenant to give security,^^ or vacating a stay on pro- hate ;^^ but an order denying a motion to vacate an order fixing appraiser's fees, affects a substantial right and is appealable. ■*■* § 1149. Proceedings after determination of appeal Where the proceedings are remitted to the surrogate by the Appellate Di- vision, a certified copy of its order should be filed in the surro- gate's office.^" Where they are remitted by the Court of Appeals, judgment should be first entered on the remittitur in the Supreme Court, and a certified copy of the latter judgment filed in the surrogate's office.^^ Under the Revised Statutes, when a decree in a probate case was affirmed or reversed on a question of law, the affirmance or reversal waS' required to be certified to the surrogate whose decision was appealed from, and the copies of papers were to be returned to him,^^ and the surrogate was thereupon to direct the administration of the estate according to the will, if the court affirmed his decree admitting it to probate, or if otherwise, he was to annul and revoke the probate. If his decree refusing pro- bate was affirmed, no further proceedings could be taken before him; but if it was reversed, he proceeded to take proof of the as to the correctness of the surrogate's rogate's decree directing a sale. (Mat- deeree, where incompetent evidence has ter of Lamberson, 63 Barb. 297 ; Mat- been received, a case is presented where ter of Laird, 42 Hun, 136.) A ques- the party excepting is necessarily tion as to referee's fees is not properly prejudiced, and the error requires a brought before the Court of Appeals reversal of the judgment. (Matter of on an appeal from a determination of Smith, 95 N. Y. S16.) See Brick v. the General Term affirming a decree of Brick, 66 id. 144; Schenck v. Dart, the surrogate, rendered in proceedings 22 id. 420. On an appeal from an in which a reference was had. (Kear- order reversing the decree of a surro- ney v. McKeon, 85 N. Y. 136.) See gate, it will be assumed that the re- Fredenburgh v. Biddlecom, 85 id. 196; versal was for errors of law where the Matter of Denton, 137 id. 428 ; Matter order does not certify that it was of O'Brien, 145 id. 379. based upon errors of fact. (Matter of 17 Hitchcock v. Peaslee, 145 N. Y. Haxtun, 102 N. Y. 157; Matter of 547 ; 65 St. Rep. 504. Keefe, 164 id. 352.) 18 Matter of Baldwin, 158 N. Y. 713. 16 Matter of Snyder, 103 N. Y. 178; 19 Matter of Harriot, 145 N. Y. 540; Cochrane v. Ingersoll, 73 id. 613. The 65 St. Rep. 528. question of the allowance of coats of 20 Co. Civ. Proc, § 2585. proceedings for the sale of a decedent's 21 Co. Civ. Proc, § 194; Wright v. lands for debts is not brought up for Wright, 3 Redf. 325. review upon an appeal from the sur- 22 2 R. S. 609, §§ 97, 98. 945 Appeals. § 1149. will. In case the decree was reversed on a question of fact, and a jury trial had, as before mentioned, the final determination thereon was to be certified to the surrogate, and if the determina- tion was in favor of the validity of the will, or of the sufficiency of the proof thereof, the surrogate was required to record the will, or admit it to probate, as the case might be.^* If the de- termination was against the validity of the will, or against the competency of the proof thereof, the surrogate was required to annul and revoke the record of probate thereof, if any had been made. Although these provisions are included in the General Repealing Act of 1880, the practice prescribed is not out of har- mony with the present system of procedure, and should be fol- lowed. Where, on affirmance of the decree, the proceedings are remitted to the surrogate, he has no power to open the decree, and grant a rehearing for alleged error of law.^ 23 2 R. S. 67, §§ 59, 60. N. Y. Supp. 565; § 1146, note 98, 24 Reed v. Reed, 52 IS. Y. 651. See ante. Matter of De Haas, 24 Misc. 258; 53 60 FORMS. No. I. [Ante, i 11.] Certificate of Disqualification of Surrogate. [Title of the proceeding .J I, 0. T. C, hereby certify, that I am the surrogate of county, N. Y., and that I am related by affinity [or, consanguinity] to one of the executors named in the will of the above-named deceased, and who is also one of the petitioners named in the within petition [here specify facts of relationship'] ; and, for the reason aforesaid, I have no jurisdiction in this matter. Wherefore, pursuant to section 2485 of the Code of Civil Procedure, I hereby designate Hon. E. W., the surrogate of the adjoining county of , to act in my place in the said matter. [Date.l [Signature.] No. 2. [Ante, § 14.] Establishing Authority of Another Officer to Act as Surrogate. I. Petition. To the [Supreme] Court of the State of New York: The petition of R. Y. B., of the [town] of , in the county of and State of New York, shows: I. That C. H., late of the town of , in the county of , and State of New York, died on the day of , , leaving his last will and testament, by which your petitioner was appointed the executor thereof. II. That your petitioner has presented a petition to the surrogate's court of the county of , asking that said will be proved and letters testa- mentary granted thereon. Your petitioner is informed and advised, that 0. T. C, the surrogate of said county, cannot act as surrogate in the matter, for the reason, as appears by the certificate of said surrogate liereto annexed, that [here state cause hriefly.] Wheeepoke, your petitioner prays, that an order may be made by this court establishing these facts, and establishing the authority of the {naming officer mentioned in Code, § 2484], to act in the place of said surrogate, and declaring that he is empowered * to discharge the duties of the office of surrogate of said county [in relation to the matter of — naming the pro- ceeding, for instance, thus : — the proving of the last will of C. H., of , deceased, and the granting of letters testamentary thereon, and in all things relating thereto, and in all things relating to the accounting and settlement [947] i^o. 2. FoEMs. 948 of said estate — and if required, add, — • upon his giving security by a bond — describing it and directing the filing. [Date.'] [Signature.^ [Verification.] II. Order Establishing Authority of another Officer or Court to act as Surrogate. [Title.'] On reading and filing the annexed l petition duly verified the day of , ; and the certificate of 0. T. C, surrogate of the county of , dated the day of , ; by which it appears to the satisfaction of this court that a proceeding has been instituted in said surrogate's court of the county of , for the probate of the will of C. H., deceased; that said 0. T. C, surrogate, cannot act as surrogate in said matter for the reason that [state cause briefly], and on motion of H. L. D., attorney for the petitioner, it is ordered that [naming officer mentioned in § 2484 of Code, or in New Yorh county, say, the supreme court in and for the county of New York], be and he [or it] is authorized and empowered to act in place of said surrogate and to discharge the duties of the ofiiee of the surrogate of said county of , in the matter of proving the last will and testament of C. H., deceased, and the granting of letters testamentary thereon, and all matters relating to the accounting and settlement of said estate — [and if required, add, — upon his giving a bond — describing it and directing the filing]. [Signature.'] III. Order Transferring a Probate Proceeding to Supreme Court. [Ante, § 11.] [Title.] By virtue of the authority vested in this court and in the surrogate of this county, by § 2547 of the Code of Civil Procedure, it is hereby ordered that the above-entitled proceeding now pending in this court, being a special proceeding for the probate of a, will, be and the same is hereby transferred to the supreme court in and for the eoimty of New York. [Signature'], Surrogate. IV. 'Notice of Removal of Proceeding. [Title.] You are hereby notified that by virtue of the authority vested in the sur- rogate's court of this county, by § 2547 of Code of Civil Procedure, the surrogate, by an order filed on the day of , , has transferred the above-entitled proceeding now pending in this court to the supreme court in and for the county of New York. Yours, etc., [Signature], Calendar Clerk. v. Order Remitting Proceedings to Surrogate's Court. [Title.] 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 , , for the reason that [state reason briefly], and it appearing to me that the reason for the exercise of the powers and jurisdiction of said surrogate's court has ceased to operate, now, pursuant to § 2491 of the Code of Civil Procedure, it is ordered that this proceeding be and the same is hereby transmitted back to the surrogate's court of the county of , for final disposition by him. [Signature."] 1 In New York county, the filing of the certificate is not necessary. 94-9 Forms. Xos. 3-5. No. 3. [Ante, § 72.] Petition for Citation; General Form. [Title.] To the Surrogate's Court of the county of New York: The petition of E. G., residing at street, respectfully shows: That your petitioner is [stating in what relation the petitioner stood to the decedent, as thus:] a legatee named in the last will and testament of A. M.. deceased, and as such is interested in the above-entitled proceeding. That letters testamentary [or, of administration^ on the estate of said deceased were granted by the surrogate of the county of New York to P. 6. on the day of , That more than has elapsed since his appointment, and the said P. G. has not [for instance, filed any account of his proceedings as such executor]. Your petitioner therefore prays that a citation may be issued requiring the said P. G. to appear in this court, and show cause why [stating relief sought, as thus:] he should not file and judicially settle his account as executor of A. M., deceased. [Signature] , Petitioner. [Verification.'] No. 4. [Ante, § 73.] Order for Citation. At a Surrogate's Court [etc.]. [Title.] On reading and filing the petition of E. G. [stating nature of the petition, as thus:] praying for a judicial settlement of the accounts of A. M., or executor, etc., of said deceased, it is ordered, that a citation issue to all persons interested in the estate of the said deceased, as creditors, legatees, next of kin, or otherwise [or, if the proceeding he for probate, say:], to the widow, devisees, legatees, heirs and next of kin of said deceased, mentioned in said petition, returnable the day of , , at o'clock in the forenoon, and also that said citation contain a, notice to said parties who are infants, to then and there show cause why a special guardian should not be appointed by the surrogate to appear for them and protect their interests in the above entitled proceeding. , Surrogate. No. 5- [Ante, § 74.] Citation. I. General Form. The People of the State of New York, To John Doe and James Jackson [or, on accounting, to all persons inter- ested in the estate of A. B., late of , deceased, as creditors, legatees, next of kin, or otherwise], send greeting: You and each of you are hereby cited and required personallj to be and appear before our surrogate of the county of New York, at the surrogate's court of said county, held at the county courthouse in the city of New York, on the day of , [not more than four months after date], at half-past ten o'clock in the forenoon of that day, then and there [here state briefly the object for which the person is cited, e. g., to show cause why the letters of administration granted to you on the day of No. 6. Forms. 950 , , as administrators of the estate of A. B., deceased, should not be revoked — - or, to attend the judicial settlement of the account of , as executor of the last will, etc., of A. B., deceased]. [Where infants are cited add: and such of you as are under the age of twenty-one years, are required to appear by your guardian, if you have one, or if you have none to appear and apply for one to be appointed or in the event of your neglect or failure to do so a guardian will be appointed .by the surrogate to represent and act for you in the proceeding.] In Testimony Whereof we have caused the seal of our said surrogate's court to be hereunto affixed. Witness, Hon. , surrogate of said county, at the city of New York, the day of , in ISeal.J the year of our Lord, one thousand nine hundred and , Surrogate. [or, Clerk to the Surrogate's Court]. II. Citation to Attend ProhateA The People of the State op New Yobk, To A. B., C. D., and E. F., the widow, heirs, and next of kin of G. H., deceased, send greeting: Whereas, H. W., of the city of New York, has lately applied to our surro- gate's court of the county of New York, to have a certain instrument, in writing, relating to both real and personal estate, duly proved as the last will and testament of G. H., late of the city of New York, deceased. Therefore, you, and each of you, are hereby cited to appear before our said surrogate, at the county courthouse, in the city of New York, on the day of , , at half-past ten o'clock in the forenoon of that day, then and there to attend the probate of the said last will and testament. In Testimony Whereof [etc., as aiove]. No. 6. [Ante, § 77.] Additional Service of Citation on Infant or Incompetent. I. Affidavit. \Title and Venue.~\ A. B., being duly sworn, says: I. That he is [here state his relation to the infant, or to the cause, and what, if anything, has heen done as to service upon him]. II. That the above-named party, Y. Z., is an infant of the age of [upwards of] fourteen years, residing with his mother, in the of [or, is an habit- ual drunkard, mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs — or, is an infant under the age of fourteen years — or, is judicially declared to be incompetent to manage his affairs, by reason of idiocy — and tnat affiant believes that the in- terest of , the person to whom a copy of the citation in the above- entitled special proceeding was delivered, in behalf of said Y. Z., is adverse to that of the said Y. Z. — or state other unfitness, giving reasons]. III. That no previous application for an order directing service of said cita- tion on some third person in behalf of said infant [or, incompetent] has been made herein, to the best of affiant's knowledge, information, and belief. [Jurat.] [Signature.] II. Order on Foregoing. {Title.} An application having been made by A. B., of , to the surrogate of county [here state ohject, e. g., to have a certain paper writing proved as the will of M. N., late of — or, the account of his proceedings as ex- 1 See § 157, ante, as to persons to be cited. 951 EoEMS. ISTo. 7. ecutor of the will of M. N., late of , deceased, judicially settled], and it appearing by the petition [or, afadavit] of said A. B., upon which said applica- tion is based,* that Y. Z., one of the persons to be cited, is an infant of the age of fourteen years [or, and the said surrogate having, in his opinion, reasonable grounds to believe that Y. Z., one of the persons to be cited, is an habitual drunkard — or, mentally incapable adequately to protect his rights although not judicially declared to be suchl : Now, on motion of L. M., attorney for said A. B. [omit this, if on surrogate's motion}, It is OEDEEEDjt that a copy of the citation issued on said application, be also delivered personally, in behalf of said Y. Z., to, and left with, N. 0., resid- ing in the city and county of New York [at least eight days before the return day of said citation], and that the service of said citation shall not be deemed complete until such delivery. [Where the infant is under fourteen, or the incompetent person has a com- mittee, continue from the asterisk above. That Y. Z., one of the persons to be cited, is an infant under the age of fourteen years, — or, has been judicially declared to be incompetent to manage his affairs by reason of lunacy — or, idiocy — or, habitual drunkenness, — and it appearing, by the affidavit of A. B., that a copy of the citation, issued on said application, has been duly served on S. Z., the — mother — of said infant, with whom he resides, — or, the committee of said lunatic — • or, idiot — or, habitual drunkard, — and the said surrogate, having reasonable ground to believe that the interest of said S. Z. is adverse to that of said Y. Z. — or, to believe that said S. Z. is not a fit person to protect the rights of said Y. Z., — for the reason that — indicating it briefly]. It is ordered, — [continue as above from j to the end; then there may be added:] — And It is fuethee okdeeed, that the said N. 0. be and he hereby is appointed special guardian, to conduct the proceeding in behalf of said Y. Z., to the exclusion of the said committee, S. Z., and with the same powers, and subject to the same liabilities, as a committee of the property. No. 7. [Ante, § 81.] Order for Service of Citation out of State, or by Publication. [Title.'\ A duly verified petitionl having been presented to and filed in the surrogate's court in the county of New York, by A. B., the person designated as sole ex- ecutor, in the will of M. N., late of the city of New York, deceased, praying for the probate of said will, and for the issuing of a citation to attend such pro- bate, and for such further or other order in relation to the proof of said will or the service of said citation, as should be just and proper, and a citation hav- ing been issued thereon directed to the [husband], legatees, heirs and next of kin of the said decedent,* [here state ground of order for publication, for in- stance, thus in case of absentee:'] and it being proved by said petition, to the satisfaction of the surrogate, that Y. Z., the father of said M. N., deceased, is an adult, and a resident of this State, but is temporarily absent in Europe [where his post-oiEce address is care of O. P. & Co., Paris, France] ; and that personal service of the citation herein cannot with due diligence be made upon him within this State. [Where the residence of a party cannot be ascertained'] And it appearing by said petition [or, affidavit], that the residence of W. Z. [formerly W. K.], wife of A. Z., who is one of the heirs and next of kin of said decedent M. N., and one of the parties to whom the said citation is directed, cannot, after diligent inquiry, be ascertained by the petitioner: 2 1 Separate petition for an order of publication is usually not necessary; but if the facts required by Code, §S 2632 or 8523, do not appear in the petition for probate, they should be set forth in a further affidavit. 2 It seems to be immaterial whether the party sought to be served without the State, upon this ground, is a resident of this State or not. See Co. Civ. Proc, § 8533, subd. 1. JSJ'o. 8. Forms. 952 [Where there are unhnoten heirs or next of kin] And it being proved, to the satisfaction of the surrogate, that tliere are other heirs and next of kin of said deceased, whose names and places of residence are unknown, and cannot with due diligence be ascertained: Now, on motion of N. R., attorney for said petitioner A. B., it is hereby ORDERED, That service of the above-mentioned citation, upon the said [naming parties'] , be made by publication thereof in two newspapers, to wit: in thel both published in the city of New York, once a week for six successive weeks ; or, at the option of the petitioner, by delivering a copy of the citation to the person so cited, in person, without the State [and — where the person to he called is an infant under fourteen years — a copy thereof to the person with whom the said (the infant) is sojourning,2 and in the case of a corporation — a copy thereof to naming some officer specified m §§ 431, 432 of the Code]. 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 city of New York, a copy of the citation and of this order, contained in a securely-closed post- paid wrapper, directed to the said Y. Z. at [or, if several are to te served, to the following persons, respectively, at the places designated below: — giving addresses in full]. [Where residence is unknown'] And it is further ordered that service of the citation in the above-entitled matter upon [naming parties], whose places of residence are unknown, and cannot with due diligence be ascertained, be made by publication thereof in two newspapers, to wit: [naming them, as above], once a week for six successive weeks, which is the time the surrogate deems reasonable, or, at the option of the petitioner, by service of the citation and a copy of this order upon the persons so cited without the State. [Where mailing is impracticable, add] And the said surrogate, being satisfied by said petition [or, affidavit], that the above-mentioned petitioner A. B. can- not, with reasonable diligence, ascertain a place or places where the said W. Z. would probably receive matter transmitted through the post-office, hereby dis- penses with the deposit of any papers therein. [Where gratuitous additional publication, in case estate is not over $2,000, is desired, add] And it affirmatively appearing from said petition, that the prop- erty of the decedent M. N. does not exceed two thousand dollars in value, it is hereby further Ordered, that the publication of said citation, hereby required to be made in the , be made gratuitously, and the publishers of said are hereby ordered and directed to make such publication without charge. , Surrogate. No. 8. Same; Shorter Form. [Title.] A citation having been duly issued in the above-entitled matter, and it ap- pearing to my satisfaction by the verified petition of E. G., that [naming par- ties to be cited] are heirs-at-law and next of kin of said A. B., deceased, or are interested as legatees, etc., under his said will, and to be cited upon the probate of said last will and testament of said deceased, and are nonresidents of this State, residing as follows, to wit : I do hereby order and direct that the service of citation herein upon said [naming parties] be made by publication thereof in two newspapers, to wit: , being two newspapers printed and published in the county of , once in each of six successive weeks, which is the time I deem reason- able; or, at the option of the said petitioner, by delivering a copy of the said citation, without the State, to the said [naming them] in person. And I do 1 The newspapers in which Ihe above service is to be published are in the discretion of the surrogate, but should be those only as are published in the county where the persons sought to be served reside, unless there ip only one paper in the county, when publication may be made in such paper in another county as the surrogate designates. 2 The surrogate may designate a person to be served in behalf of Infants and incompetents in certain cases. See Co. Civ. Proc, § 2527, and form 6, ante. 953 FoEMs. Nos. 9, 10. further order and direct, that on or before the day of the first puhlieation, the petitioner herein deposit in the post-office, in the city of , [four] sets of copies of the said citation and of this order, each set contained in a securely-closed, post-paid wrapper, and directed as follows: [giving addresses in fullj. [Date.] , Surrogate. No. 9. [Ante, § 85.] Proof of Service of Citation.i [Title and Venue.} P. B., being duly sworn, says that he is years of age, and that on the day of , 18 , at No. 14 Wall street, in che city of New York, he served the annexed citation on W. B., one of the persons named in said cita- tion, by delivering to and leaving with him, personally, a true copy thereof [or, where the party served is a lunatic, by delivering to the said W. B., a lunatic, personally, a copy of the annexed citation, and by also delivering a copy thereof to and leaving the same with E. F., personally, who has been duly appointed the committee of the person and estate -of said W. B., heretofore judicially declared to be of unsound mind — or where the party served is an infant, by delivering a copy of the same to the said infant personally, and by also delivering a copy thereof to E. F., the father of the said infant, person- ally, and leaving the same with them]. [Where admission of service is indorsed on the citation, attach an affidavit, as follows:'} J. M., of the town of Goshen, in the county of Orange, being duly sworn, says, that he is well acquainted with C. S., of the said town of Goshen, and with his manner and style of handwriting, having frequently seen him write; that he was present and saw the said C. S. sign the said waiver; and the signature purporting to be the signature of the said C. S., subscribed to the admission of service of the annexed citation, is the true and genuine signa- ture of the said C. S. [Where citation was published.] 2 That on the day of , 18 , the first day of the publication of the citation herein, he deposited in the [general] post-ofSee in the city [or, town] of [New York,] a copy of the citation issued herein, and of the order directing the publication thereof, entered the 20th day of June, 18 , copies of which are hereto annexed, contained in a securely-closed and duly post-paid wrapper, directed to each of the persons hereinafter named, at the places and addresses below stated, to wit: [setting forth names of persons contained in the order of publication.'] s [Jurat.] [Signature.] No. ID. [Ante, p. 85.] Appearance by Attorney or General Guardian. [Title.] Take notice that I am retained by and appear for A. B., one of the next of kin and heirs-at-law of the said C. D., deceased [or, for E. P., general guardian of A. B., an infant named in the citation herein], and demand that all notices and papers herein be served on me at my address given below. [Date.'i [Signature and Address.] To [name of], Surrogate, and E. F., Attorney for C. D., proponent of the will. 1 In New York county, the orisinal citation must be returned to the clerk of the court before one o'clock, p. M., on th« day preceding the return day, with sworn proof of service, or admission of service, duly acknowledged. 2 Where service bv publication has been ordpred, personal service of nonresident within this State is void. ^Matter of Porter, 1 Delehanty, 489.) 3 To the afftdavit of mailing, should be annexed the proofs of publication. No. 11. FoEMS. 954 II. Waiver of Service of Citation. [Title.} We, the undersigned, widow, heirs, and next of kin and legatees, etc., of M. N., deceased, do hereby appear in person and waive the issue and service of a citation in the matter of proving the last will and testament of the said M. N., deceased, and we do hereby consent that the same be admitted to pro- bate forthwith. [Signatures.] [Authentication as of a deed.} III. Admission of Service of Citation. [Title.} I, E. G., named in the annexed citation, being of full age, do hereby admit due and timely service of a copy of the said citation upon me in person on this day of , at , in the State of ; and I do hereby ap- pear in person in the matter of proving the last will and testament of said deceased, and consent that the same may proceed to a decree without notice to me of any further proceedings therein. [Authentication as of a deed.} No. II. [Ante, § 109.] Appointment of Special Guardian.^ I. Petition. [Title.} To the Surrogate of the county of : The petition of A. B. [etc.,} shows: I. That your petitioner is an infant over fourteen years of age, and resides with his [father] in the city of , county of , and State of [state age and residence of each other infant joining in the petition}, and that your petitioner has not [or, neither of your petitioners has] any general guardian in the State of New York [or, if there is a guardian, state the facts]. II. That your petitioner is a legatee named in the will of M. N., deceased [or, is one of the next of kin to M. N., deceased]. That the will of said M. N. has been duly admitted to probate by a decree of the surrogate's court of New York county, but a petition has been presented to obtain a revocation of the said probate of said will, and a copy of the citation issued thereon has been duly served upon your petitioner. III. That, to protect and preserve the rights and interests of your petitioners under the said will, it is necessary that some proper person should be duly appointed the special guardian of your petitioners in the said proceedings. Wheeefohe, your petitioners pray that N. R., counselor-at-law, of the [city of New York], may be appointed such special guardian, to protect the rights and interests of your petitioners. [Date.} [Signatures.] [ Verification.} [Indorse or attach consent as follows:] I, N. R. of , counselor-at-law, hereby consent to become the special guardian of A. B., an infant [heir, etc.] of M. N., deceased, for the sole pur- pose of appearing for him and protecting his interests in the matter of [the probate, or, revocation of probate of] the will of M. N., deceased [and I hereby state that I have no interest in the proceedings adverse to the said infant]. [Date.] [Signature.} [Authentication as of a deed.} i If the infant is under the age of fourteen years the petition should be ma|le by his parent or a person with whom he resides, or in a proper case, by any of the parties to the proceeding. 955 FoEMs. No. 12. II. Affidavit of Special Guardian. [Title.'l N. R., being duly sworn, says that he resides at , in the city of New York. That he is perfectly able and competent to protect the rights and in- terests of , infant, in this proceeding; that he has no interests ad- verse to that of said infant, and is not connected in business with the attorneys or counsel for the proponent. That he is of sufficient ability to answer to said infant for any damage which may be sustained by reason of his negligence or misconduct in this proceeding and is worth over [five hundred dollars] over and above all hi.s debts and liabilities and besides property exempt by law from levy and sale under an execution. That his property consists of \_stating if]. [Jurat.] [Signature.'] III. Affidavit of Person with whom Infant Resides.^ [Title.] C. F. B., being duly sworn, says that he is the father [or state what relation the affiant occupies with respect to the infant] of A. B-, infant; that said in- fant resides with deponent at , in the city of New York; that deponent has knowledge of the application of said infant for the appointment of N. R. as his special guardian and approves of the same ; that deponent has no in- terests adverse to that of said infant, and has not influenced him in his selec- tion of said special guardian. [Jurat.] [Signature.] IV. Order Appointing Special Guardian. [Title.] It appearing to my satisfaction by the verified petition nerein [or, the affi- davit of J. K.], that A. B., one of the heirs and next of kin of the said de- ceased, is an infant having no general guardian [or, having a general guard- ian, but that the interests of said guardian are adverse to those of said in- fant] ; now on reading and filing the consent of N. R., counselor-at-law of , to become special guardian for the said infant, for the sole purpose of taking care of his interests in this matter: Ordered, that the said N. R. be, and he hereby is, appointed the special guardian for the said A. B., to appear and protect his interests in this matter. [Or, where the appointment is made on the surrogate's motion, omit the recital, and say, after title:'] It is ordered, that N. R. be, and he is hereby, appointed the special guardian of A. B., an infant, for the sole purpose of appearing for and taking care of his [or, her — or, their] interest in the matter of proving the will of said deoeased.2 [Signature of]. Surrogate. No. 12. [Ante, § 52.] Subpcena from Surrogate's Court. The People of the State of New York, To [names of witnesses'], greeting: We command you, that, all and singular business and excuses being laid aside, you and each . of you appear and attend before the surrogate of the county of [New York], at a surrogate's court to be held in and for the county of [New York], at the county courthouse in [the city of New York], on the day of , , at o'clock in the noon, to testify and give evidence in a certain special proceeding now pending in said court, entitled. In the Matter of [insert title]. 1 This affidavit is made necpssary to the appointment ot a special guardian on the infant's application in the countv of New York by the rules of the surrogate's court in that county. Eule 10, and see ante, % 109, n. 2 Where 'he iniirdian is appointed on the surrogate's motion, the consent of the guardian is indorsed on the order. No. 13. FoKMS. 956 [If prockiction of a booh or paper is desired, add: And you are hereby required to bring with you, and then and therp produce — here describe book or jjaper.] And for a failure to attend you will be deemed guilty of a contempt of court, and liable to pay all damages sustained thereby by the party aggrieved, and forfeit fifty dollars in addition thereto. Witness, Hon. , surrogate of our said county, at the [city of New York], the day of , one thousand nine hundred and [Signature of], Clerk to the Surrogate's Court. No. 13. [Ante, § 125.] Obtaining Examination of Infirm Witness. I. Affidavit. [Title and Venue.'] A. T., being duly sworn, says, that he is the attorney for the proponent [or otherwise] herein [or describe any other proceeding] ; that C. D. is one of the subscribing witnesses [or, is a material and necessary witness in support — or, in opposition to — the petition herein] ; that said C. D. is past seventy years of age, and is confined to his house. No. , street, in the city of , by age and infirmity [or, sickness], and is unable to attend before the surrogate, to be examined in this matter. [Jurat.] [Signature.] II. Order for Examination. [Title.] It appearing to the satisfaction of the surrogate, and the surrogate having good reason to believe, that the testimony of C. D., of No. , street, in the city of , is material and necessary to prove the due execution of said will, and that said C. D. is aged and infirm, and that the witness cannot attend before the surrogate within a reasonable time: Now, on motion of A. T., the attorney for A. B., the proponent of said will. It is ordered] that the said C. D. be examined before * me [or, N. R., Esq., counselor-at-law, who is hereby appointed referee for that purpose] at the residence of said C. D., No. , street, in the city of New York, on the day of , , or on an adjourned day to be fixed by me. [Where witness resides in another county, continue frorn * above,] the Hon. , surrogate of the county of , on the day of , , or on an adjourned day to be fixed by him; and that a certified copy of this order be delivered to said surrogate, on or before the day of , It is further ordered, that a copy of this order, duly certified under the seal of this court, together with the original will of said , be delivered to , the proponent of said will, to be by him transmitted to the surrogate of county, for use upon such examination. [In any case add:] That five days' vpritten notice be given personally to the attorney of [adverse and other interested parties] of such examination. That all proceedings herein stand adjourned till the day of , , at o'clock, M. III. Notice of Examination of Infirm Witness. [Title.] Please take notice, that the surrogate of county will . take, in this matter, the examination of C. D. [one of the subscribing witnesses to the will of M. N., late of , deceased], at the residence of said C. D., No. , street, in the city of , county of , on the day of , , at o'clock in the noon. [Signature.] To [wowfS of those to whom notice is required]. Attorney [etc.]. 957 Forms. No. 14. IV. Record of Examination. [Title.'i Examination of C. D., a witness sworn and examined in the above-entitled special proceeding, before Hon. , surrogate of the county of , pursuant to an order of the surrogate of the county of , made on the day of , [Venue.] The said C. D., being duly sworn and examined by , says [state substance, or set forth question and answer]. [Signature.] V. Certificate of Surrogate to Examination. I, , surrogate of the county of , hereby certify, that pursuant to the annexed order by Hon. , surrogate of the county of , directing that C. D., an aged and infirm witness, be examined before me on the day of , ,1 attended on said day, at No. , street, in the [cityj of , the residence of said C. D. [here state any adjournment or other proceeding], and there took the foregoing examination of said witness,, and that I reduced the examination to writing, as above, and the same was subscribed by said witness in my presence [or state other authentication]. In Testimony Whereof, I have hereunto set my hand, and have affixed the seal of my court, the day of , , in attestation thereof. [SEAL.] , Surrogate. No. 14. [Ante, § 124.] Interrogatories under Commission to Take Testimony of Foreign Wit= ness, on Probate.i [Title of Proceeding.] Interrogatories to be administered respectively to W. W. and 0. P., of Paris, France, who are witnesses to be examined under the annexed commis- sion, in support of the will in the above-entitled proceeding: First interrogatory. — What is your name, age, and occupation, and where do you reside? Second interrogatory. — Were you acquainted with M. N., late of the city of New York, deceased? State for how long a time prior to her decease you had known the above- named M. N., now deceased? Third interrogatory. — Look at the instrument in writing, bearing date the day of , purporting to be, and offered for probate as, the last will and testament of the said M. N., deceased, and say whether or not you were present as a witness at the time of the execution of the same? Did you see the said M. N. subscribe her name to the said instrument, or did she make such subscription in your presence, or did she acknowledge or declare to you that the signature " M. N.," at the foot of said instrument, was her signature ? Fourth interrogatory. — Did the said M. N., at any time, declare the said instrximent so subscribed by her to be her last will and testament? if so, state when she so declared it to be her last will and testament, and, to the best of your recollection, what words were used by her in making such declaration; also state at what place said instrument was executed? Fifth interrogatory. — State if you were requested by said M. N., at the time of the above-mentioned subscription or declaration, to sign said instru- ment as subscribing witness, and if you did thereupon sign as such witness, and if either of the signatures of the witnesses to said instrument is your signature; and, if so, specify which one? 1 The commission is in the form and tested as commissions in an action. The affidavit may be adapted from Form 13, ante, mutatis mutandis. JSTo. 15. FoKMs. 958 Sixth interrogatory. — Who was present when the said instrument was declared by M. N. to be her last will and testament, and to whom was such last declaration made, in whose presence was it signed by her, and in whose presence were you requested to sign, and in whose presence did you sign, as witness ? Seventh interrogatory. — Did you see the other subscribing witness to the said instrument sign his name; and, if so, state his name, and if he signed the same in the presence of said M. N. and yourself; and if he signed the same, as witness, at the request of the said M. N., and if she declared to him that said instrument was her last will and testament ? Eighth interrogatory. — Was the said M. N. over [twenty-one] years of age at the time of executing such instrument; was the said M. N. of sound mind, memory, and understanding at the time of executing such instrument; was she, at such time, under any restraint whatsoever; and was she, in any respect, incompetent to [devise] real estate? Ninth interrogatory. — Do you know of any other matter or thing relative to the execution of the said instrument by the said M. N., or to the condition of the mind of the said M. N., at the time of such execution? answer fully and particularly. [Signature and address of attorney.'] Waiver of Cross-Interrogatories. 1. S. G., the special guardian of the infant H. I., interested in the probate of the last will and testament of M. N., deceased, do hereby approve of the foregoing interrogatories, and waive my right to send out cross-interrogatories. [Signature of Special Guardian.'] The foregoing interrogatories are allowed. [Date.] [Signature of], Surrogate. No. IS. [Ante, § 117.] Order of Reference of Questions of Fact, etc.^ At a Surrogate's Court, etc. [Title.] The petition of A. B., a surety in the official bond of C. D., general guardian of E. F., an infant, praying for the removal of said guardian, on the ground that he is incompetent to fulfill his trust, having been presented to the court, and a citation issued to said guardian having been duly returned, and said guardian having filed an answer denying the material allegations of such petition. It is ordered, 1. That the said matter be referred to , who is hereby appointed referee, to take and report to the surrogate the evidence upon the facts as to the alleged incompetency. 2. That the hearing be had before said referee, at such time and place, in the city of , as he shall appoint; and that he report thereon with all convenient speed. 3. That, on the coming in of said report, notice is to be given to the parties that have appeared, of motion to be made before the surrogate on the ques- tion of confirming such report, or for such other or further order as may be proper. [Or, instead of suMs. 2 and 3, insert: 2. That the first hearing of this matter, before said referee, take place at his office, in the city of , on the day of next, at o'clock in the noon, and the said referee bring in his report herein before the surrogate, on the day of next, at o'clock in the noon ; which last-mentioned day is 1 For Forms relating to Exceptions, Surrogates' Decisions, Request, to Find, etc., see Abb. New Forms, Nob. 601-513, 538, 583. 959 FoEMS. ^0. 16. hereby appointed for the hearing of the parties hereto at the surrogate's office in said city, on the confirmation of the report of said referee, without further notice.] [Signature of], Surrogate. [Some, on consent.] [Title.] Upon the consent of the attorneys for the respective parties to this pro- ceeding. It is okdeeed, by the said surrogate, that the evidence herein, on both sides of the ease, be taken before , as referee, hereby appointed for that purpose, but upon the condition that all questions of law relating to the admission or exclusion of testimony shall be reserved for decision by the surrogate as they shall arise; that either party shall have the right to require the examination or cross-examination of any witness to be had in the presence of the surrogate; and that either party shall be at liberty, at any time, to apply to the surrogate, on notice, for a modification or rescission of this order. [Signature of]. Surrogate. No. i6. [Ante, § 152.] Petition for Proof of Will. [Title.] To the Surrogate's Court of the county of New York. The Petition of T. G. S. respectfully shows: I. That A. R., late of the city of New York, departed this life on the day of , , leaving a last will and testament, dated the day of , [and a codicil thereto, dated the day of , ], which is signed at the end thereof by the said testator, and by [naming wit- luiss] as subscribing witnesses. II. That the said decedent was, at or immediately previous to his death, a resident of the city and county of New York, and departed this life in said county. [Or, where the decedent was a nonresident of the State, That the decedent was not a resident of this State, but died in the city of Boston, leaving personal property within the State — or, which has since his death come into the State, and remains unadministered.] [Where decedent, a non- resident, died without the State, That the decedent was not a resident of this State, and died without the State, but left personal property in the county of New York — or, left personal property which has, since his death, come into the county of New York, and remains unadministered.] [Where nonresident had real property in the county. That the decedent was not, at the time of his death, a resident of this State, but died seized of real property to which the said will relates — or, which is subject to disposition, pursuant to the statute, for the payment of the debts, etc., of the decedent — situated in the county of New York; and that no petition for the probate of said will, or for a grant of letters of administration of the personal property of the decedent, has been filed in any surrogate's court of this State, to the best of your petitioner's knowledge, information, and belief.] III. That said will relates to both real and personal property [or, to real property only — or, . to personal property only] ; and that the value of the personal property does not exceed dollars [or, where gratuitous addi- tional publication of citation is desired, two thousand dollars].* IV. [If the will 'relates exclusively to real estate, here set forth the names and places of residence of the heirs of the testator; or if, upon diligent in- quiry, they cannot he ascertained, state that fact. If the will relates exclusively to personal estate, state the same facts in regard to the wid,oii) and next of kin of the testator. If the will relates to both real and personal estate, state the same facts in regard to the heirs, widow, and next of kin of the testator as for example:] That, as your petitioner is informed and JSo. 16. Forms. 960 believes, the following persons are the [widow — or, husband — and] only heirs-at-law and next of kin of the said decedent, to wit: L. C. R., widow, residing at ?fo. L. R., a son, aged seventeen years, ) residing with their mother, at the B. R., a daughter, aged fifteen years, ) place aforesaid. [Where there is no widow or husband, or child:'] B. R., the mother of said testator, residing at the city of New York, J. R., a brother, and M. R., a sister of said testator, residing at , and E. L. R. residing at , a daughter of B. R., a brother of the testator, who died before him. [Where name of a person interested is unknown:] That your petitioner is informed and believes, that G. H., a sister of the testator, removed from this State, in or about the year 1860, to the State of Texas, where she married and afterward died, before the testator, leaving one or more children. But, after diligent inquiry, your petitioner is unable to ascertain their names, or the name of their father, or his or their residence, or whether they, or either of them, be dead or living. [Or where residence cannot be ascertained:] That K. R., a brother of said testator, who is not a resident of this State, was known to reside in the city of Chicago, 111., in or about the month of May, 1879. Your petitioner is in- formed and believes, that a letter addressed to said K. R. at Chicago, 111., was deposited in the post-ofSee at New York city, and was shortly there- after returned through the post-office, with the information that said K. R. could not be found; and your petitioner, after diligent inquiry, has been unable to ascertain his present residence. [Or where publication is sought:] That personal service of a citation can- not with due diligence be made upon the above-named nonresidents within the State of New York, and your petitioner prays for an order directing the service thereof without the State, or by publication, pursuant to sections 2522 and 2523 of the Code of Civil Procedure. [Where a party has been without the United States for more than six months, add:] G. R., a son of said B. R., a resident of this State, who has been continuously without the United States for more than six months im- mediately prior to the date of this petition, and has not made a designation of any person upon whom to serve a summons on his behalf, as provided by section 438 of the Code of Civil Procedure, his present post-ofiice address being care of Monroe & Co., Rue Scribe, Paris, France. V. [Where the facts are not already stated, add:] All of the foregoing named are of full age and sound mind [except as follows : That said C. B. is an infant, of the age of , residing with , his mother, at the address aforesaid, and has no general guardian — or, if otherwise, name guardian, with address, and state how appointed, if known; — and that E. B. is a lunatic, for whom , of , is the committee — stating how appointed, if known]. VI. [/* is usual to add:] That said decedent left him surviving no widow, nor any child or children, adopted child or children; the issue of any deceased child or children, or the issue of any deceased adopted child or children; or any father or mother, or any deceased child's husband or wife, or brother or sister of the half or the whole blood, or the issue of any deceased brother or sister, or any deceased brother's wife or any deceased sister's husband, except as above stated. VII. [It is well to add in all cases:] That no petition for the probate of said will, or for letters of administration on said estate, has been heretofore filed in any surrogate's court of this State. VIII. That your petitioner is the sole executor [and trustee] named in said will [or, one of the executors named, etc. — or, a legatee named, etc. — or, a creditor of the said testator in the sum of $1,000, upon a certain promissory note made and delivered by the testator to the petitioner, on the day of , , for value]. IX. [Where interpretation of will executed in this State is sought:] That your petitioner is advised by counsel, and verily believes, that the true inter- pretation and legal effect of the [fourth clause of] said will are doubtful, in that [it is uncertain upon what contingency the trust thereby created was 961 FoEMS. No. 17. intended to terminate — or, it is questioned whether the said clause does not unlawfully suspend the absolute ownership of the property so bequeathed in trust, etc.]. That the following persons, besides those above named [the next of kin, etc.'], are interested in the determination of the meaning, validity, and legal effect of said will, to wit: [state naines and residences of legatees, not already mentioned as next of kin, widow, etc.; or slate]. That the above- named [widow — or, husband — and] next of kin are the only persons who are interested in the determination of the meaning, validity, and legal effect of said [clause of said] will. Wheeefoeb, your petitioner praj's, that the said last will and testament may be proved, and letters testamentary granted thereon, according to law, to the executor [or, executors] who may qualify thereunder, and that the above- named widow [or, husband], heirs and next of kin [or either] of said deceased may be cited to attend the probate thereof; and that, upon the presentation of this petition, the surrogate of the county of New York may make such further or other order, in relation to the proof of said will or the service of said citation, as may be just and proper [and that the validity, construction, and legal eflfect of the aforesaid disposition of personal property may be de- termined and adjudged], [Date.] [Signature.] [Venue.] A. B., being duly sworn, says that he is the petitioner [or other party] above named, that he has read the foregoing petition [or, answer, etc.], sub- scribed by him, and that the same is true, to his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that, as to those matters, he believes it to be true. [■Jurat.] [Signature.] No. 17. Same; Shorter Form. [Title.] To the Surrogate's Court of the county of Kings: The petition of P. 6., of the city of Brooklyn, respectfully shows to this court that he is an executor named in the last will and testament of L. E.., late of the city of Brooklyn, in the county of Kings, deceased. That the said deceased was, at the time of his death, a resident of the county of Kings, and departed this life in said county on the day of That said last will and testament relates to both real and personal estate, and bears date the day of , , and was signed by the testator, and A. M. and L. R. as siibscribing witnesses. That said deceased left him surviving a [or, no] widow, E. R., who resides at the town of W., county of S., and as his only heirs-at-law and next of kin the following named persons, to wit: [naming them]. And your petitioner prays that the said instrument above described be proved and admitted to probate as a valid will of real and personal estate, and that the above-named widow, all the heirs-at-law and next of kin, of said testator, be cited to attend the probate thereof; that the surrogate, on the return day of said citation, appoint a competent and responsible person to appear as special guardian for the above-named infants, and that letters testa- mentary be granted thereon according to law. [Date.] [Signature.] [Verification.] Affidavit as to Heirs and Legatees.^ [Title and Venue.] C. D., being duly sworn, says: I. That he is executor named in the will of the above-named decedent. II. That the above-named decedent died on the day of , , at , in the city [or, town] of 1 This affldaylt is made necessary by, and in conformity with, section 238 of chapter 908 of the Laws of 1896. 61 j^os. 18, 19. FOEMS. 962 III. That the estimated value of the real property in this State, of which said decedent died seized, is dollars. IV. That the estimated value of the personal property of which said decedent died possessed, is dollars. V. That the names of the heirs-at-law of said decedent, their places of resi- dence, and relationship to the decedent, are as follows: VI. That the following is a full and correct list of the names and residences of all the persons and bodies who are in any way entitled to any legacy, devise, interest, or estate under or by virtue of the will of said deceased, or from said decedent, together with the nature, value, and amount of such legacy, devise, interest, or estate. Name of legatee or devisee. Residence. Amount or value of legacy. Value of devise. [Jurat.'] [Signature.] No. i8. [Ante, § 152.] Petition for Probate where Citation is not Necessary. [As in No. 16, to the asterisk, and then continue:] IV. That the said decedent left him surviving no widow [or, husband] and no heir-at-law or next of kin, except your petitioner, who is the only child of said decedent, and of full age, and the sole executor named in said will, and is the only person interested thereunder. V. That no petition for the probate of said will has been filed in any surro- gate's court of this State. Wherefore, your petitioner prays, that the said last will and testament may be proved, and letters testamentary granted thereon according to law. [Signature.] [Verification.] No. 19. [Ante, § 242.] Petition for Proof of Nuncupative Will. [After alleging jurisdictional facts as in No. 16, continue:] That on the day of , , the said decedent was a mariner in actual service, and was captain of the brig Osprey, engaged in making the voyage from New York to Liverpool, said vessel then being in mid-ocean. That on the said day the decedent was seized with a sudden and violent sickness, to wit, with the disease of cholera, and being then in immediate danger of death, and having no opportunity to make a written will, he called to him your petitioner, who was the mate of the said vessel, and, in the presence of J. K. and L. M., sailors belonging to said vessel, addressed him substantially in the following words: " Upon my death I desire that you act as my executor, and take possession of all my personal estate, and divide it, one-half to my wife and the rest to my 963 FoEMS. IS^os. 20, 21. daughter." That thereafter the said decedent continued to fail in strength, and died two days thereafter, on the day of , , before the vessel arrived in port. [The remainder of the petition should he as in Nos. 16 and 18 except that, as a nuncupative will can extend only to personalty, it is never necessary to cite the heirs-at-lam.'\ No. 20. lAnte, § 234.] Petition for Proof of Lost or Destroyed Will. [The same as No. 16, except that, after paragraph VIII, as there given, insert:] IX. That the said will was made by the said testator, on or about the day of , , and [a copy of said will is hereunto annexed, marked Exhibit A — or, the witnesses to said will were J. K. and L. M., of Brooklyn, N. Y., the provisions of the said will were substantially as follows, viz., etc.'\. X. That the aforesaid will of the said testator was in existence at and for some time subsequent to his death, and since his death has been lost or destroyed by accident or design — or, That the said will was, in the lifetime of the said testator, fraudulently destroyed in the following manner: — [stating facts making a prima facie case of fraudulent destruction in the life- time of the testator.'] Your petitioner, therefore, prays that a citation may issue [etc., as in No. 16, and continue'], and [that the instrument of which a copy is hereunto annexed, marked Exhibit A, may be established as the last will and testament of the said A. B., deceased — or, that the provisions of the last will and testament of the said A. B., deceased, may be established and declared to be as set forth in the foregoing petition] . ['Verification.] [Signature.] No. 21. [Ante, § 250.] Petition for Leave to File for Record Exemplified Copy of Will. To the Surrogate of the city and county of New York : The petition of E. G., residing in the city of New York, State of New York, respectfully showeth, that your petitioner is the executor [or, legatee] named in the last will and testament of L. R., deceased. That said deceased was, at the time of his death, a resident of the city of Boston, State of Massachusetts, and departed this life in the said city of Boston, on the day of , , leaving real property, or an interest in real property, situated within this county, to wit: [naming it specifically], which is devised, or made subject to a power of disposition by the said will of said deceased. That said will was duly executed in conformity with the laws of this State. That on the day of , , the said will of said deceased was admitted to probate within the State where the decedent so resided as afore- said. That said will is filed or recorded in the [naming office where will is filed], the same being the proper ofiice as prescribed by the laws of said State of Massachusetts, and that the said will, with the proofs and the records thereof, remains in said court. That your petitioner herewith presents a copy of such will or the record thereof and of the proofs or the record thereof, dutv authenticated l by the seal of the court or officer by which or whom such will was admitted to nrobate, or having the custody of the same or of the record thereof, and the signature of a judge of such court, or the signature of such officer, and of the clerk of such court or officer, if any; and further authenticated by a 1 For the proper authentication of a will of another State, see L. 1888, c. 495- Co f!iv Pr., deceased, to said petitioner A. B. ; and that all persons having a right to such administration, prior or equal to said petitioner, be cited to show cause why such a decree should not be granted; and the petitioner having proved to the satisfaction of the surrogate, by said petition [and the affidavits of O. P. and Q. E. filed therewith], that [here set forth the jurisdictional facts; see No. 44] ; and a citation having been thereupon issued out of said court, directed to all such persons, and said citation having been returned, with proof of the due service thereof, on all of said persons [or recite services and appearances; and adjournments, if any'] ; and on reading and filing the written renunciation of J. D. — the widow — or, son — of said dece- dent, of all her right and title to administer said estate ; and the consent and request of said A. B., that such administration be granted to J. W., of ; and that said J. W. be joined with said petitioner, in the administration to which he might be entitled herein] ; and due consideration having been given to all the papers and proceedings in this matter; [And it appearing, that the only party having a prior right, to the petitioner A. B., to such administration, has failed to appear in this proceeding and claim such administration; and it further appearing, that the said A. B. is entitled to such administration; and it also appearing, that said J. W. is u proper and competent person to be joined in such administration, with the said A. B.] ; Now, on motion of J. L. H., attorney for said petitioner, it is hereby Ok- DEBED, ADJUDGED, AND DECREED, that letters of administration of the goods, chattels, and credits of said C. D., deceased, be, and the same are hereby awarded to said A. B., of [and to J. W., of , to be joined with the said A. B. in the administration, and letters are hereby granted to him], upon his lor, their severally] taking and subscribing the statutory oath, and executing a bond, according to law, with sufficient sureties, in the penalty ot dollars. [In case of limited letters, say, and modified security having been given, the letters of administration issued pursuant to this decree are limited to the prosecution of an action under section 1902 of the Code of Civil Procedure to recover damages for causing the death of said decedent, and said adminis- trator is restrained from a compromise of such action and the enforcement of any judgment recovered therein until the further order of this court on addi- tional further satisfactory security.] IV. Letters of Administration. The People op the State of New York, To A. B. and C. D., send greeting: Whereas, E. F., lately departed this life, intestate, being at or immediately previous to his death an inhabitant of the county of New York, by means whereof the ordering and granting administration of all and singular the goods, chattels, and credits whereof the said intestate died possessed, in the State of New York, and also the auditing, allowing, and final discharging the account thereof, doth appertain unto us ; and we being desirous that the goods, chattels, and the credits of the said intestate may be well and faithfully ad- ministered, applied, and disposed of, do grant unto you, the said A. B. and C. D., full power, by these presents, to administer and faithfully dispose of all and singular the said goods, chattels, and credits; to ask, demand, recover, and receive the debts which unto the said intestate, whilst living and at the time of his death, did belong; and to pay the debts which the said intestate did owe, as far as such goods, chattels, and credits will thereunto extend and the law require; hereby requiring you to make, or cause to be made, a true and perfect inventory of all and singular the goods, chattels, and credits of the said intestate, within a reasonable time, and return a duplicate thereof to our surrogate of the county of New York, within three months from the date of these presents; and, if further personal property or assets of any kind, not mentioned in any inventory that shall have been so made, shall come to your possession or knowledge, to make or cause to be made, in like manner, a true and perfect inventory thereof; and return the same within two months after 985 FoEMS. No. 45. the discovery thereof, and also to render a just and true account of adminis- tration, when thereunto required; and we do, by these presents, depute, con- stitute, and appoint you, the said A. B. and 0. D., administrators of all and singular the goods, chattels, and credits of the said E. F., deceased. [In cases of limited administration say, and it appearing that a right of action is granted by special provision of law to said administrator; and it appearing to be impracticable for said administrator to give a bond sufficient to cover the probable amount to be recovered, and the surrogate having ac- cepted modified security from said administrator, we do, therefore, hereby au- thorize and empower said administrator to prosecute said action, but he is restrained from compromising said action and from enforcing any judgment ■recovered therein until the further order of the surrogate on additional fur- ther satisfactory security.] In Testimont Whekeof [etc.]. v. The Same — A Short Form. The People op the State of New Yobk, To A. B., of the city of Rochester, in the county of Monroe, New York, send greeting: Whereas, E. F., late of the city of Rochester, aforesaid, died on or about the day of , intestate; And Wheeeas, on the day of , at a surrogate's court held at Rochester, in and for our county of Monroe, a decree was duly made, award- ing letters of administration upon the estate of the said deceased to you: And you having taken your official oath, and duly filed, with the surrogate of our said county of Monroe, the said oath, and the bond required by law : Now, THBEEFORB, know ye, that we, having full faith and confidence in your competency, have granted, and by these presents do grant, unto you, the said A. B., the administration of all and singular the goods, chattels, and credits which were of the said deceased, hereby constituting and appointing you administrator thereof. WiTNBSB, Hon. , surrogate of our said county of Monroe, and the [Seal.] seal of our said surrogate's court, this day of [Signature of], Surrogate. No. 45. [Ante, § 470.] Bond of Executor or Administrator. Know ali. men by these presents. That we, A. B., of , in the city of ; and C. D., of street, in the city of ; and E. F., of , in the county of , are held and firmly bound unto the people of the State of New York, in the sum of one thousand dollars, lawful money of the United States of America, to be paid to the said people; to which payment well and truly to be made we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , one thousand nine hundred and *. The condition of this obligation is such, that if the above bounden A. B. shall faithfully discharge the trust reposed in him as executor [or, adminis- trator] of all and singular the goods, chattels, and credits of G. H., late of the city of New York, deceased, and obey all lawful decrees and orders of the surrogate's court of the county of New York, touching the administration of the estate committed to him, then this obligation to be void, else to remain in full force and virtue. [Signatures and seals.] [Sealed and delivered in presence of] [Authentication as of a deed.] No. 46. ToBMS. 986 [Append an affidavit of each surety as to his sufficiency, in the following form .'] [Venue.} C. D., of street, in the city of , a surety named in the annexed bond, being duly sworn, deposes and says, that he owns in his own right real estate in the State of New York, consisting of the house and lot No. , street, in the city of , and that the same is of the value of not less than five thousand dollars, and is subject to no incumbrance, except a mortgage of two thousand dollars, held by the Mutual Life Insurance Company of New York city; and that he owns personal estate in the city of , and that its value is not less than three thousand dollars, that it consists of the fix- tures and stock of goods in the grocery store. No. , street, in said city, and that it is subject to no incumbrance; and that there are no unsatis- fied judgments or executions against him, and that he is under no recogni- zance; and that he is worth in good property, exclusive of such as is exempt by law from execution, not less than two thousand dollars, over and above all debts, liabilities, and lawful claims against him, and all liens, incumbrances, and lawful claims upon his property. [Jurat.'] [Signature.] [Same Form,, mutatis mutandis, for hand of administrator with will an- nexed.] No. 46. [Ante, § 370.] Administration de Bonis Non. I. Petition. [Title.'] To the Surrogate's Court of the county of New York: The petition of C. D. respectfully shows: I. That your petitioner is a grandson, of full age, of the said A. B., de- ceased, who died in New York city on the day of II. That letters of administration of the goods, chattels, and credits of the said A. B., deceased, were duly granted by the surrogate of the county of New York, on the day of , unto J. B., the widow of said decedent. III. That said J. B., the administratrix aforesaid, departed this life on the day of , leaving certain property and assets of the said A. B. still unadmiuistered. IV. That your petitioner has, to the best of his ability, ascertained and esti- mated the personal estate of which the said A. B. died possessed, and the value of the same does not exceed the sum of one thousand dollars. V. That, as your petitioner has been informed, and believes, the said de- ceased left him surviving [state names and residences of next of kin, as in No. 16], his only next of kin. Your petitioner, therefore, prays that letters of administration de bonis non of the goods, chattels, and credits of the said deceased, so left unadmiuistered as aforesaid, may be granted by the surrogate of the county of New York to your petitioner. [Signature.] ['Verification.'] II. Decree on Foregoing. [May be adapted from Form Ifo. 44, III.] III. Letters of Administration De Bonis Non. The People op the State or New Yoek, To C. D., one of the next of kin of A. B., late of , deceased, intestate: Whekeas, E. F. was duly appointed the administrator of the goods, chattels, and credits which were of the said intestate, and letters of administration were duly granted and issued by the surrogate of Westchester eoupty to the said E. F., on the day of ; 987 FoEMS. No. 47. And Whereas, the said E. F. has since departed this life, leaving property and assets of the said intestate still unadministered ; Akd Whekeas, the said A. B., at or immediately previous to his death, was an inhabitant of the county of Westchester, having, whilst living and at the time of his death, goods, chattels, and credits, within this State, by means whereof the ordering and granting administration of all and singular the goods, chattels, and credits, and also the auditing, allowing, and final dis- charging the accounts thereof, doth appertain unto us ; and we being desirous that the goods, chattels, and credits of the said deceased may be well and faith- fully administered, applied, and disposed of, do grant unto you, the said C. D., full power and authority, by these presents, to administer and faithfully dis- pose of all and singular the goods, chattels, and credits left unadministered; to ask, demand, receive, and recover the debts which unto said intestate, whilst living and at the time of his death, did belong; and to pay the debts which the said intestate did owe at the time of his death, so far as such goods, chat- tels, and credits will thereunto extend, and the law requires; hereby requiring you to make or cause to be made a true and perfect inventory of all and sin- gular the goods, chattels, and credits of said intestate, which have or shall come to your possession or knowledge, and the same so made to exhibit or cause to be exhibited and filed in the ofiice of the surrogate of the county of Westchester, on or before the expiration of three months from the date hereof, and also to render a just and true account of your administration when there- unto required. And we do by these presents depute, constitute, and appoint you, the said C. D., administrator de ionis non of all and singular the goods, chattels, and credits which were of the said A. B., deceased, intestate, left unadministered as aforesaid. In Witness Whereof [etc.]. No. 47- [Ante, § 373.] Qrantins Ancillary Letters of Administration. I. Petition. [Title.} To the Surrogate's Court of the county of : The petition of E. G., residing at , State of , respectfully shows: I. That said deceased was at the time of his death a resident of , State of , and departed this life in , State of , on the day of , , leaving personal property within this county. II. That on the day of , , letters of administration were duly issued to your petitioner upon the estate of the said deceased by the court of the county of , State, a court of competent jurisdiction for that purpose, being a court within the State [or, Territory — or, county] in which the said decedent resided at the time of his death, and said letters were duly recorded in the ofiice of the said court, on the day of III. That an exemplified copy of said letters, and of the decree granting the same, is hereto annexed and marked " Exhibit A." IV. That the value of the property left by deceased [etc., continuing as in No. 41 from the *, suiting the prayer to the exigencies of the case}. [Date.} I [Signature.} [Verification.} II. Decree. [May be adapted from Form No. 41, IV.] III. Ancillary Letters of Administration. The People of the State of New York, To E. G., send greeting: Whereas, letters of administration upon the estate of A. B., an intestate were duly granted to E. G. by the court of the State of , the said' jSTo. 48. FoKMS. 988 court being a competent court in the State [or, county — or, Territory] where the said intestate resided at the time of his death; And Whebeas, the said E. G. has presented to the surrogate's court of the county of New York, letters of administration upon the said estate, duly authenticated, and applied for the issuance to him of ancillary letters of administration, by means whereof the ordering and granting administration of all and singular the goods, chat- tels, and credits whereof the said intestate died possessed, in the State of New York, and also the auditing, allowing, and final discharging the account thereof, doth appertain unto us, and we, being desirous that the goods, chattels, and credits of the said intestate may be well and faithfully administered, ap- plied, and disposed of, do grant unto you, the said E. G., full power by these presents to administer and faithfully dispose of all and singular the said goods, chattels, and the credits, ask, demand, recover, and receive the debts which unto the said intestate, whilst living and at the time of hi'fe death, did belong; and to pay the debts which the said intestate did owe, as far as such goods, chattels, and credits will thereunto extend, and the law require; hereby requiring you to make or cause to be made a true and perfect inventory of all and singular the goods, chattels, and credits of the said intestate, within a reasonable time, and return a, duplicate thereof to our surrogate of the county of New York, within three months from the date of these presents; and if further personal property, or assets of any kind, not mentioned in any inventory that shall have been so made, shall come to your possession or knowledge, to make or cause to be made in like manner, a true and perfect inventory thereof, and return the same within two months after the discovery thereof, and also to render a just and true account of administration, when thereunto required; and we do by these presents, depute, constitute, and ap- point you, the said E. G., ancillary administrator of all and singular the goods, chattels, and credits of the said A. B., deceased. In Testimony Whereof, we have caused the seal of ofEce of the surrogate's court of the city and county of New York to be hereunto affixed. Witness, Hon. , surrogate of said county, at the city of New York, the day of , in the year of our Lord, one thousand nine hundred and [Signature}, Clerk of the Surrogate's Court. No. 48. [Ante, § 376.] Proceedings by Public Administrator. I. Affidavit to Ohtain Order to Sell Perishable Property. [Title and Venue.} M. N., being duly sworn, says, that he is a clerk in the office of S. E., Esq., the treasurer [or, public administrator] of the county of ; that on the day of , , A. B., of , died intestate at said city, leaving certain goods, chattels, and effects therein; that no notice has been received by the said treasurer [or, public administrator] that any one entitled to a dis- tributive share in the estate of said A. B. is a resident of the said county ; and tliat the said S. R., by virtue of his office as public administrator, did, on the day of , , take possession of, and now holds, the said goods, chattels, and effects of the said A. B., deceased, which were in said county of at the time of his decease, or which have since come therein; that the said deceased was in his lifetime a dealer in country produce, at ; and that the stock of goods in the said store, which has been taken possession of by the said public administrator, consists of the butter, eggs, vegetables, and dressed poultry shown by the annexed inventory, marked Exhibit A, and that the whole thereof is now in a, perishing condition. [Jurat."] [Signature.] II. Order on the Foregoing. [Title.'] On reading and filing the affidavit of M. N., hereto annexed, by which it appears that S. R., Esq., the treasurer [or, public administrator] of , has 089 ToEMs. No. 48. in his charge, by virtue of his office, certain property (which is described in an inventory attached to, and made part of, said affidavit), and that such property is in a perishing condition; Ordered, that the said S. R., Esq., public administrator of , sell at public auction the property described in the said affidavit and inventory, and that such sale take place on the day of , , or on such adjourned days as the said public administrator shall designate. III. Petition for Order to Seise Personal Property to Prevent Waste. [Title.] To the Surrogate's Court of the county of New York: The petition of S. R., public administrator in the city of New York, respect- fully shows, upon his information and belief, that A. B., late of Chicago, Illinois, died in the city of New York, on the day -of , , intes- tate, leaving certain goods, chattels, and effects in the city and county of New York, and that the said property is in danger of waste and embezzlement. He further shows, upon his information and belief, that the said A. B. left him surviving, M. B., his widow, of full age, and W. B. and S. B., both minors under the age of twenty-one years, his only children, and only next of kin, all, at the time ~ of the death of the said intestate, and still, residents of the city of New York, and for proof of the allegations herein contained the public administrator refers to the affidavit of W. S., a creditor of the said intestate, hereunto annexed. The public administrator, pursuant to the statute in such case made and provided, applies to the surrogate for an order authorizing him to take charge of, seize, and secure the goods and property of the said A. B., deceased, in- testate. [Signature.] [Verification.'] IV. The Affidavit to Accompany the Petition. [Title and Venue.] W. S., of the city of New York, being duly sworn, says, that he is a creditor of A. B., late of Chicago, Illinois, the person referred to in the annexed peti- tion. That the said A. B. died in the city of New York, on the day of , . That he left him surviving, M. B., of full age, his widow, and W. B. and S. B., minors, his only children, and only next of kin, and that the said widow and next of kin of the said intestate resided at the time of his death, and still reside, in the city of New York. That the said A. B. died possessed of a stock of dry goods of the value of upwards of ten thousand dollars, in his late store, No. , street, in the city of New York. That the said store, and the stock of goods therein contained, have been, since, the death of the said A. B., in the possession of the clerks formerly employed in the said store. That no responsible person has been in charge thereof, and that portions of the said goods, to the amount of upwards of one thousand dollars, have been disposed of and carried away, apparently under the direc- tion of the clerks in the said store. And this deponent further says, that the said goods are in danger of waste or embezzlement, and that, as this deponent believes, it will be for the beneiit of the estate of the said deceased to have the said goods seized and secured. [Jurat.] [Signature.] V. Order on the Foregoing Petition. [Title.] On reading and filing the application of S. R., the public administrator in the city of New York, and the affidavit of W. S., a creditor of the said A. B., deceased, by which it appears that the widow and next of kin of the said in- testate, entitled to a distributive share in his estate, resided in the city of New York at the time of the death of the said intestate, and still reside in the said city; and that the stock of dry goods of the said deceased in his late store, No. , street, in the city of New York, are in danger of waste and JSTo. 49. Forms. 990 embezzlement; and that it would be for the benefit of the estate of the said intestate to have the said stock of goods seized and secured; Obdebed, that the said S. R., public administrator in the city of New York, be, and he hereby is authorized to take charge of, seize and secure the stock of dry goods, property, and effects of the said A. B., deceased, in the store lately occupied by the said deceased, at No. , street, in the city of New York. VI. Notice of Application for Letters. Public Administeatok's Office. Notice is hereby given to the relatives and next of kin of A. B., deceased, and who is alleged to have died intestate, that I shall apply to the surrogate of the county of New York, for letters of administration upon the estate of the said intestate, on the day of next, at ten o'clock in the forenoon. [Date.'i [Signature of]. Public Adm'r. VTT. Affidavit on Application for Letters. \_Yenue.'] H. J. C, Jr., the public administrator in the county of Kings, being duly sworn, says, that he is informed and believes that the said A. B., late of Brooklyn, Kings county, deceased, departed this life at Brooklyn, on the day of last, leaving property and effects of which this deponent is au- thorized by law to take charge, the value of which is about the sum of sev- enty-five dollars. That deponent has caused the service and publication of the notice required by law, as appears by affidavit annexed hereto; that no claim has been made according to law, and that deponent has taken upon himself the administration of the estate of the deceased. [Jurat.'] [Signature.] [Annex to this an affidg,vit shovnng due service and publication of foregoing ■notice.] No. 49. [Ante, § 405.] Appointment of Temporary Administrator. I. Notice of Moiion.i [Title of the principal proceeding.] Take notice, that on the proceedings heretofore had herein [and on the afii- davit of L. H., a copy of which is hereto annexed], a motion will be made to Ihe surrogate of this county, at his office in the [city of New York], on the day of [at least ten days after date of notice], at o'clock in (he noon of that day, for an order appointing a temporary administrator of the goods, chattels, and credits of B. B., above named, deceased. [Date.] [Signature of attorney.] To [each party to proceeding, or his attorney.] II. Affidavit on Motion. [V'enue.] L. H., being duly sworn, says: 1. That he is the sole executor named in the paper writing purporting to he the last will and testament of B. B., late of the city of New York, deceased, propounded for probate and now pending in the court of the surrogate of the county of New York. 2. That he is the younger brother of the said decedent, and that by said will, after several small legacies and a legacy to the wife of the said decedent, the rest, residue, and remainder of the real and personal estate of the said decedent are given, devised, and bequeathed unto deponent, as executor in 1 The application for the appointment of a temporary administrator may be by motion in the original proceeding or by a petition, in a case where the frround of the application is one of those mentioned in subd. 1 of § 8668 of Co. Civ. Proe. But the application must be by petition, where the ground is the absence of the party, as provided by subd. Z of the same section. 991 FoEMs. No. 49. trust. That the proof of the said will is contested, whereby delay is neces- sarily produced in granting letters testamentary or administration in this matter, and it is uncertain when such contest will be terminated [or specify other cause of delay']. 3. That the property of the said deceased consists in part of personal prop- erty and in part of real estate, and that it is advisable and necessary that immediate steps be taken for the collection of the income from the same and the rentals thereof, and for the re-renting of certain portions of the real es- tate for the encuing year. 4. That your petitioner has, to the best of his ability, ascertained and esti- mated the value of the real and personal property of which the said deceased died possessed, and that the real property does not exceed in value the sum of dollars, and the annual rentals therefrom being about dollars; and that the value of the personal property does not exceed dollars. 5. That all the [widow and] heirs and next of kin of said decedent are par- ties to the proceeding for the proof of said paper writing. [Jurat.} [Signature.] III. Petition for Letters in Case of Absentee. To the Surrogate's Court of the comity of New York: The petition of A. B. respectfully shows: I. That your petitioner, residing in the city of New York, is the son of C. D. [or a creditor, etc., stating particulars of debts,] who resided at No. , street, in said city, up to and on the day of . That on said day the said C. D. took passage in the steamer Saratoga, from the port of New York, to Havana, Cuba. That it was the intention of the said C. D. to find employment as a civil engineer in Cuba, and, as your petitioner is in- formed and believes, he was, for some months after his arrival at Havana, engaged in the construction of a railroad in the vicinity of , Cuba, from which place he communicated, from time to time, with deponent, by mail. That since the day of , your petitioner has leceived no communica- tion from the said C. D., by mail, or otherwise, and has no information as to his present -vrhereabouts, if living. That your petitioner has caused diligent search to be made for the present abode of the said C. D., through the U. S. Consul at Matanzas, Cuba, in the vicinity of the last known place of abode of C. D., and his communications are hereto annexed, from which it appears that, shortly before the disappearance of said C. D., an insurrection broke out among the negro slaves in the district of his abode, in which several white persons in the vicinity were massacred, since which no trace of said C. D. can be found; and there is reason to believe that the said C. D. is dead [or, that he has been secreted, confined, or otherwise unlawfully made away with — or, after stating the presumptive circumstances, that he has become a lunatic] . II. [State particulars as to names, residences, and ages of next of kin, icidow, etc., of absentee, as in the case of an application for letters in case of deceased intestate.] III. That there is now on deposit to the credit of the said C. D., in the Savings Bank, in the city of New York, the sum of dollars [or state other property, and necessity for temporary administration for the pres- ervation or disposal thereof]. IV. That your petitioner has, to the best of his ability, estimated and as- certained the valye of the personal property in this State belonging to the said C. D., and that the same does not exceed dollars. Whekefoee, your petitioner praj'S that a, temporary administrator of the goods, chattels, and credits of the said G. D. may be appointed, and that letters may be issued to him pursuant to the statute in such case made and pro- vided, and that a citation may be issued [etc.]. [Date and Verification.] [Signature.] TV. Order for Letters of Temporary Administration [Title.] On reading and filing the petition of A. B., dated the day of , [or. On all the proceedings in the above-entitled matter, and the papers No. 49. FoEMS. 992 lierein heretofore filed, and on reading and filing the affidavit of A. B., veri- fied the day of , ] , to the surrogate of the county of [New York], for an order appointing a temporary administrator of the goods, chat- tels, and credits which were of the late M. N., deceased, together with proof of due service of notice of motion [or, citation — or, and affidavit] on all necessary parties [none of the parties having appeared pursuant to said no- tice — or, citation, — except Y. Z., who appeared by his attorney, B. T., and opposed said application] ; and the surrogate being satisfied that the case is a proper one for the appointment of a. temporary administrator, and that A. B. is a competent and qualified person therefor; * Now, on motion of A. T., attorney for said A. B. : It is hereby oedekbd, that temporary administration on the goods, chat- tels, and credits of said M. N., late of , deceased,! be, and the same hereby is, granted to said A. B., and that letters of temporary administration upon the goods, chattels, and credits [and estate] of said decedent issue to the said A. B., upon his [here direct him to qualify as in No. 44, III.] And it is further ordered, that said A. B.. be, and he is hereby, authorized to take possession of the buildings, and lots on which they stand, known as Xos. , street, in the city [New York], being property of which said M. N. died seized and possessed, and receive the rents and profits thereof, as the same become due and payable, until the further order of this court. [The order may also authorize the leasing of premises for not more than a year, or other acts, except selling, necessary for preservation or benefit of the estate.] It is further ordered, that the said A. B., within ten days after any money belonging to the estate comes into his hands, deposit the same in the Bank [or, in New York, in the Trust Company], to the credit of this proceeding. V. Letters of Temporary Administration. The People of the State of New York, To E. G., send greeting: Whereas, a paper has been propoimded for probate before the surrogate of the county of New York, as the last will and testament of L. E,., late of the city and county of New York, deceased, and a contest exists relative to such probate [or, other caiise], and a delay is thereby necessarily produced in granting letters testamentary or of administration upon the estate of said deceased : Know te, that we, being desirous that the goods, chattels, and credits of said deceased may be collected and preserved, do grant unto you, the said E. G., 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 singular the goods, chattels, or credits of said deceased, and return the same to our said surrogate, within three months from the date of these presents, and also to render a just and true account of your administration as such temporary administrator whenever required by our said surrogate, and faithfully to 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 L. R., deceased, or to such other person as shall be authorized to receive the same by said surrogate. In Testimony Whereof, we have caused the seal of office of the surrogate's court of the city and county of New York to be hereunto affixed. Witness, Hon. , surrogate of said county, at the city of New York, this day of , in the year of our Lord, one thousand nine hundred and [Signature] , Clerk of the Surrogate's Court. 1 Iq case of administratioQ of an absentee's estate, substitute now or late, for late of deceased. 993 FoKMS. No. 50. No. 50. [Ante, § 417.] Payment of Debt by Temporary Administrator. I. Petition. [Title.] To the Surrogate [or, the Surrogate's Court] of the county of [New York] : The petition of A. B. respectfully shows: I. That your petitioner [or, if the petition is by a creditor. That C. D.] was heretofore appointed temporary administrator of the goods, chattels, and credits of M. N., late of , deceased [or, of the property of M. N., now or late of , an absentee], by an order duly made by the [surrogate's court of this county, on the day of , , and thereupon your petitioner [or, said C. D.] qualified, and letters of temporary administration were issued to him as such. II. That, on the day of , , in pursuance of an order there- tofore duly made by the said surrogate, your petitioner [or, said C. D.] commenced the publication of notices to creditors of said M. N., to present their claims, and continue said publication, agreeably to the statute, for the period of six months. III. That more than one year has elapsed since said letters of temporary administration were issued. IV. That the assets of the estate of said M. N. amount to over dollars, and the debts amount to dollars; and your petitioner [or, said C. D.], as such temporary administrator, has sufiBcient assets in hand, applicable to the payment of the debts of said M. N., to pay, with interest [one-half of] the claim of L. M. [or, of your petitioner], hereinafter men- tioned, and the same may be so applied, without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction. V. That one L. M. [or, your petitioner] has a valid claim against said M. N. [deceased], consisting of [state it briefly, e. g., thus] a promissory note made by said M. N., in his lifetime, to the order of said L. M., dated the day of , , for dollars, payable months after date, and that no portion of the same has been paid [as your petitioner is informed and believes]. That said claim, with proof thereof, was duly presented to your petitioner [or, by your petitioner to said temporary admin- istrator,] and a. copy of said note, and [a copy of] the proof of the validity of said claim are hereto annexed and marked, respectively, A and B. Whbbefoke your petitioner prays that a decree be entered herein, direct- ing him [or, said temporary administrator] to pay [one-half of] said claim, with interest from the day of , , [or, so much of said debt as it may be proper and just now to pay; and if the petition is by the creditor, add: and that a citation be issued requiring him and all parties interested to show cause why he should not render an account, and why such decree should not be made]. [Signature.] [Verification.] II. Decree on the Foregoing. [The decree on the foregoing petition, after the proper recitals, may be:] That the said temporary administrator be, and he is hereby directed to pay [state claim as in petition; and if the petition was by a creditor, add: and that a citation be issued therefor and a citation having been duly issued thereupon out of this court, requiring — names — to appear and show cause why an account should not be rendered, and the said claim should not be paid, and said citation having been returned and filed, with proof of due service thereof, on all said parties] ; and it having been proved to the satis- faction of said surrogate by the said petition [and the affidavit of Q. R., verified the day of , , and herewith filed], that the assets of said decedent [or, absentee], in the hands of said temporary administrator, exceed the debts [and if the petition was by a creditor, add: and that the 63 No. 51. FoEMs. 994 petition may be granted, without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction] ; Now, on motion of A. T., attorney for said A. B., It is adjudged, that said A. B., the temporary administrator of the property of M. N., the said deceased [or, absentee], pay to said L. M. [one- half] the full amount of his said claim, to wit, dollars, with interest thereon, at per cent., from the day of , , the whole amount- ing to $ No. 51. [Ante, § 438.] Revocation of Letters. I. Petition. [Title.'] To the Surrogate's Court of the. county of : The petition of A. D. respectfully shows: I. That your petitioner is one of the legatees under the will of C. D., late of the [city of New York], deceased [or state other interest, as next of kin, creditor, etc.], which was admitted to probate by the surrogate['s] [court] of county, on the day of , , and recorded in the office of said surrogate, in Liber of Wills, at page ; and thereupon letters testamentary were duly issued by said surrogate to Y. Z., the sole executor in said will named. [Or, where letters of administration are sought to fee revoked, allege the interest of the petitioner and the issue of letters of administration'] . II. That the circumstances of said Y. Z. are such that they do not afford adequate security to your petitioner, nor to the creditors of said C. T>., nor to other persons interested, for the due administration of the said estate [adding particulars, for instance"] that the estate which has come into the hands of the said Y. Z., as such executor, exceeds dollars; that the said Y. Z. is insglvent and owes large sums of money, and on the day of , , made an assignment of all his property for the benefit of creditors. [Or state other cause for revocation, with facts and circumstances, e. g.. That the said Y. Z., at the time of the issue of letters testamentary to him as above stated, was an alien (not being a citizen of the United States, but being a citizen of the kingdom of Great Britain, resident at New York city, in the State of New York, and that since such appointment he has ceased to be a resident of the State of New York, and did, on or about the day of , , remove from the city of New York, and take up his residence at Jersey City, in the State of New Jersey, and he is now a resident of that State]. Whebbfoee, your petitioner prays, that a decree be made revoking the said letters heretofore issued to said Y. Z., and that he be cited to show cause why such a decree should not be made; [and that, in the meantime, the said executor be enjoined from further acting in the premises]. [Signature.l ['Verification.] II. Order Enjoining Executor. [Title.] A. D. of the city of New York, a legatee under the will, and interested in the estate of C. D., late of said city, deceased, having, on the day of , , filed a verified petition, by which complaint is made that the circumstances of Y. Z., the executor of the said will, are such that they do not afford adequate security for the due administration of the estate of the said deceased [or, that the said executor has become by law incompetent to serve as such] ; and it appearing to the surrogate that there are good grounds for such complaint, and the said surrogate having thereupon issued a citation to the said Y. Z., requiring him to appear at a day and place therein 995 Forms. No. 52. specified, to show cause why letters testamentary granted and issued to him, as executor, on the day of , , should not be revoked, It is ordered, that the said Y. Z. be, and he hereby is, enjoined from further acting In the premises until the matter in controversy shall be dis- posed of. III. Order Revoking Letters. [Title.] On reading and filing proof of the due and personal service of Y. Z., the executor of the last will and testament of C. D., late of the city of New York, deceased, of the citation heretofore issued in this matter, requiring him to appear in this court, on this day, to show cause why the letters testamentary issued to him on said will should not be revoked; and the said Y. Z. having appeared, and A. D., the complainant herein, having also appeared, and after hearing the proofs and allegations of the parties, and it appearing that the circumstances of the said Y. Z., executor as aforesaid, are such that they do not afford adequate security for his due administration of the estate. Ordered, that the said Y. Z. give a bond, with sureties like those required by law of administrators, within five days from this day, or, in default thereof, that his letters testamentary be revoked [or if cause of revocation cannot be cured hy giving security, say, instead: That the letters testa- mentary heretofore issued to the said Y. Z. be, and they are hereby revoked. And all authority and rights of the said Y. Z., as such executor, are hereupon to cease]. No. 53. [Ante, § 443.] Revocation of Letters upon Resignation. I. Petition for Discharge.^ [Title.] To the Surrogate's Court of the county of : The petition of A. B., the executor of the will [or, administrator of the estate] of M. N., late of the city of New York, deceased, respectfully shows : I. That, by this court, on the day of , , said will was duly admitted to probate, and letters testamentary thereon issued to your petitioner [or allege letters of administration]. II. That the only persons interested in the estate of M. N., the decedent, as creditors or persons claiming to be creditors, husband [or, wife], legatees, next of kin, or otherwise, and the only persons who are entitled, absolutely or contingently, by the terms of said will, or by the operation of law, to share in the fund, or in the proceeds of property, held by your petitioner, in the application of such estate or fynd, and the places of residence of all such persons, to the best of the knowledge, information, and belief of your petitioner, are as follows, viz.: [stating them]. III. [State grounds of application, for instance:] That your petitioner is an alien and a citizen of the republic of France, having resided in the city of New York for a number of years past, but is now about to take up his residence in the city of London, England; and is now desirous to render an account of all his proceedings as such [executor], and be discharged. Wherepobe, your petitioner prays that his account of his proceedings, as such [executor], may be judicially settled, and that a. decree be thereupon made revoking his said letters, and discharging him accordingly as [executor], and that the creditors and persons claiming to be creditors of the decedent, and the decedent's husband [or, wife], next of kin, and legatees, and other persons interested, may be cited to attend the judicial settlement of such an account. [Signature.] [Verification.] 1 For forms of petition, decree, etc., upon resignation of testamentary trustees, see post. No. 52. FoEMS. 996 II. Order Allowing Accounting for Purpose of Discharge. [Title.'] A. B., one of the executors of the will of M. N., late of the city of New York, deceased, having presented to this court his petition, duly verified, on the day of , , praying that his account be judicially settled, and that a decree be thereupon made, revoking his letters testamentary, and service charging him accordingly, and a citation thereon having been issued, directed to [names'], and returnable on the day of , , and the said citation having been returned on that day and filed, with proof of due service on all the persons named therein; and C. D. having appeared by Z. T., his attorney, and none other of the persons cited having appeared; and the said petitioner having appeared by his attorney, A. T., and the surrogate having heard the proofs and allegations of the parties: Now, on motion of A. T., the attorney for said A. B., It is obdbbed and adjudged, that sufficient reasons exist for granting the prayer of the petition, and that said A. B. be, and he hereby is, allowed to account for the purpose of being discharged as [executor of the will] of M. N., deceased. III. Decree Revoking Letters and Discha/rging the Representative.'^ [Title.] Letters [testamentary, on the will] of M. N., late of , deceased, hav- ing been heretofore issued by this court, on the day of , , to A. B., as [executor], and the said A. B., having, on the day of , , filed a petition in the office of said surrogate, praying that his account be judicially settled, and a decree made revoking his said letters and discharging him, and that a citation be issued, requiring the necessary parties to show cause why the petition should not be granted; and such citation having been thereupon duly issued, requiring [insert names] to show cause, on the day of , , why such a decree should not be made; and the said cita- tion having been returned on that day, and filed, with proofs of due service thereof on the persons named, and none of the persons therein named having appeared [except C. D., the co-executor of said A. B., who appeared by B. T., his attorney, and waived the account of said A. B., and a judicial settlement thereof] ; and the said A. B. having appeared [in person and] by his said attor- ney and counsel, and it satisfactorily appearing to the surrogate that none of the money, books, papers, or other property of the estate of the said M. N., are in the hands of said A. B. : Now, on motion of A. T., attorney and counsel for said A. B. : It is ordered, adjudged, and decreed, that the said letters heretofore isfcued to A. B., as such [executor], be, and the same hereby are, revoked; And it is further ordered and adjudged, that the said A. B. be charged as such executor [here insert provision as to charges and credits, as in a de- cree settling an executor's accounts see 72, XXI, post]. And it is further ordered, adjudged, and decreed, that the said executor has fully accounted for all property belonging to the said estate coming into his hands, as such, and he, having paid over the sum of dollars, found due from him as aforesaid, and delivered all boolcs, papers, and other property of the said estate in his hands, to the clerk of this court [or, to his co-execu- tor — or, to J. S., who is hereby appointed the successor of the said A. B.] as directed by the surrogate, it is ordered and adjudged that the resignation of the said A. B. as executor of the last will and testament of M. N., deceased, be and the same is accepted, and that he be discharged of and from all liability and duty on account thereof. 1 See poat, for form of decree revoking letters for failure to give new or additional sureties. 997 FoEMs. No. 53. No. 53. [Ante, § 460.] Depositing Securities, to Reduce Penalty of Ofiicial Bond. I. Petition for Leave to Deposit, etc. [If the application is made on applying for letters, insert this in the peti- tion for letters; if made subsequently, may entitle this in the same proceeding, reciting briefly the former steps, and continuing, for instance, thus:} That the said deceased died possessed of certain personal property situate in the county of and State of New York; and that the aggregate value of all the personal property, wherever situated, of which the deceased died pos- sessed, together with the probable amount to be' recovered by reason of all or any right of action granted to an executor or administrator of the said de- ceased, by special provision of law [in case of executor, or administrator with the will annexed add, and also the value of the real property, or of the pro- ceeds thereof, which may come to the hands of the executor — or, administrator — by virtue of any provision contained in the will, does not exceed the sum of three hundred and fifty thousand] dollars, and that the same largely consists of securities for the payment of money, and that all the goods, chattels, effects, and [personal] property of said deceased, over and above said securities, does not exceed the sum of [fifty thousand] dollars. A true description of said securities is contained in Schedule " A " hereunto annexed. That it is inconvenient for your petitioner to furnish security in the full amount prescribed by law, but he is able to effect an arrangement by which the Company of New York, a trust company, which is authorized by law to receive the same, will become the depository and custodian of the said estate under the direction of the surrogate. Whebefoke, your petitioner prays that an order be made directing the deposit with said Trust Company of , of the aforesaid securities for the payment of money belonging to the estate, and that the amount of the bond to be given by your petitioner be fixed with reference to the remainder of said estate or fund, amounting to dollars. [Signature.'] [Verification.} II. Order Thereon Allowing Deposit and Reduction of Bond. [Title.] On reading and filing the verified petition of A. B., dated the day of , , asking an order directing that certain securities for the payment of money belonging to the estate of said deceased, in said petition specified and described, be deposited with the Trust Company of , to the end that the amount of the bond to be given by him, as such administrator, may be fixed and determined with respect to the remainder only of the estate or fund amounting to [fifty thousand] dollars or thereabouts;* and these facts appearing to the satisfaction of the surrogate, and he deeming it inexpedient to require of said A. B. security in the full amount required by law: Now, on motion [etc., as in other orders]. [Insert in ordering part'] That the said securities for the payment of money, the description of which is contained in Schedule "A," annexed to said peti- tion, belonging to the estate of said deceased, be deposited with the Trust Company of , to the order of said A. B., as administrator as afore- said, countersigned by the surrogate. And it is further ordered, adjudged, and decreed, that letters of adminis- tration upon the goods, chattels, and credits of said decedent issue to said A. B., upon his subscribing the statutory oath that he will well, honestly, and faith- fully discharge his duty as such administrator, according to law, and upon making the deposit aforesaid, and upon filing the receipt of the said Trust Company for the said securities, and upon executing a bond in the pei;alty of [one hundred thousand] dollars to the people of New York State, with two or more competent sureties, for the faithful discharge of the trust reposed in him as such administrator. And it is fubthek okdeked, adjudged. IsTo. 54. FoEMS. 998 AND DECREED, that, as such administrator, he shall be, and hereby is, empow- ered to collect and receive all interest, income, and dividends now due or to grow due upon the securities so deposited as aforesaid, and in case the interest, income, or dividends upon any of said securities cannot be collected without the production of the certificate or security itself, the same may be collected • by the said Trust Company, the depositary aforesaid, and, after collec- tion, shall be paid over by said company to said administrator, upon such terms as may be agreed upon. And the said Trust Company is ordered to keep possession of the said securities, subject to the order of the administrator aforesaid, countersigned by the surrogate, or subject to the special order of the surrogate. III. Receipt hy Depositary of Securities. [Title.'] The Trust Company, of , does hereby acknowledge having re- ceived, on this date, from A. B., the following securities, together with the certified copy of an order [or, decree] of the surrogate of the county of , made in the matter above entitled, and dated , Sectjeities. [Here follows description of the securities.'] In Witness Whereof, the said Trust Company of has hereunto caused its corporate seal to be affixed, and the same to be duly attested, on this day of , [Seal.'] [Signature of], President. [Authentication as of a deed.] No. 54- [Ante, § 462.] Proceedings to Compel New Official Bond, or New Sureties. I. Petition iy Person Interested. [Title.] To the Surrogate's Court of the county of : The petition of M. N., of the city of New York, respectfully shows: I. That your petitioner is one of the children and next of kin of S. N., late T)f the city of New York, deceased, intestate, and has not yet received the share of the estate of the said S. N., to which by law he is entitled. II. That letters [of the administration of the estate] of the said S. N., de- ceased, were issued by the surrogate of the county of New York to C. D., of the city of New York, on the day of , III. Your petitioner further alleges, that C. R. [lately a resident of the city ■of New York, is one of the sureties of the said C. D., in his bond given by him on the granting of the said letters, and that the said C. R. has removed out of the State of New York, as your petitioner is informed and believes, and has gone to Boston, in the State of Massachusetts — or other facts showing insuffi- ciency of sureties or inadequacy of amount of 'bond]. IV. That E. N., of the city of New York, is the only other surety of the said administrator in his said bond. Wherefore, your petitioner prays that C. D. may be required to give new [or, additional] sureties [or, a new bond, in a penalty of dollars], or, in default thereof, that he may be removed from his office, and that letters issued to him may be revoked; and that the said C. D. may be cited to show cause why the prayer of this petition should not be granted. [Signature.] {Verification.] 999 FoEMs. ¥o. 55. II. Order for New or Additional Sureties, etc. [Title.] The citation issued to C. T>., administrator of the estate of A. B., deceased, on the day of , , requiring him to show cause why he should not be required [etc., as above}, having been returned with due proof of service on the said C. D., and the said C. D. having appeared by W. M., Esq., his attorney, and it satisfactorily appearing that C. R., one of his sureties, has [removed from this State — or stating other facts shovnng insufficiency of surety, or inadequacy of amount of iond']. Ordered, that said C. D. give new [or, additional] sureties [or, a new bond, in a, penalty of dollars], in the usual form, as such administrator as aforesaid, within five days from this date, or, in default thereof, that his letters of administration be revoked. III. Decree Revoking Letters on Failure to Give Neio Bond. [Title.] Whereas, by an order made and entered by the surrogate's court on the day of , C. D., administrator of the estate of A. B., deceased, was required within five days from that date to give a new bond in the penalty of dollars, of which order the said C. D. had notice ; And Whereas, the said C. D. has failed to furnish a new bond, approved by the surrogate, as required by said order [or, has filed a new bond, approved by the surrogate, as required by said order]. Now, on motion of , It is ordered and de- creed, that the said C. D. be, and he is hereby, removed from his ofiice as ad- ministrator aforesaid, and that the letters of administration heretofore issued to him be, and they are hereby, revoked [or, if new bond has been given and ap- proved, say, instead, that this proceeding be, and the same is hereby, dismissed, with costs and disbursements of the same, to be paid by to ]. No. 55. [Ante, § 464.] Releasing Sureties in Official Bond. I. Petition of Surety to be Released. [Title.] To the Surrogate's Court of New York county: The petition of J. K., of the county of , respectfully shows to the court as follows: Your petitioner alleges that he is one of the sureties of C. D., as administra- tor of the goods, chattels, and credits of A. B., late of the city of New York, deceased, and that he desires to be released from responsibility on account of any future breach of the condition of the bond of the said administrator. He, therefore, prays for a decree releasing him accordingly, and that C. D., the said administrator, may be cited to show cause why he should not give new sureties. [Signatv/re.] [Verification.] II. Citation Thereon. [ The command of the citation is'] to show cause why you should not give new sureties, in your official bond as administrator [etc.], pursuant to the statute. III. Decree Releasing Surety. [Title.] J. K., of the city of New York, one of the sureties of C. D., as the adminis- trator of all and singular the goods, chattels, and credits of A. B., late of the city of New York, deceased, having heretofore presented his petition, dated [etc.], to this court, setting forth that he desired to be released from responsi- bility on account of any future breach of the condition of the bond of the said administrator, and praying for relief, pursuant to the statute; and the surro- No. 56. FoEMS. 1000 gate having thereupon issued a citation requiring the said C. D., administrator as aforesaid, to [state substcmce of citation],* and the said C. D. having ap- peared in compliance with the said citation, and having given new sureties, to the satisfaction of the surrogate: It is adjudged and decreed, that the said J. K. shall not be liable on the bond bearing date on the day of , in the year one thousand nine hundred and , executed to the people of the State of New York, by the said C. D., as principal, and the said J. K. and one L. M., as sureties, on the granting of the letters of administration of all and singular the goods, chattels, and credits of the said A. B., deceased, to the said C. D., by the said surrogate, for any breach of the condition of the said bond, occurring after the date of this decree. No. 56. [Ante, § 467.] Suing on Bond of Executors, etc., after Letters Revoked.^ I. Petition for Leave to Sue, by Person Aggrieved. [Title.] To the Surrogate of county: The petition of C. D. respectfully shows to the court, as follows: Your petitioner alleges [upon information and belief] : I. That letters of administration [with the will annexed or letters testa- mentary] on the estate of A. B., late of , deceased, were granted by a decree of the surrogate's court of this county, on the day of , , to G. H., of , who entered upon the discharge of his duties as such ad- ministrator with the will annexed [or, executor], accordingly, and as such received, in his official capacity as aforesaid, certain property belonging to the estate of said A. B., viz.: [describe it], which he has not duly administered, but, on the contrary, has wholly converted to his own use. II. That your petitioner is a creditor of said A. B., and has a valid claim against his estate, and that upon his petition as such creditor [or otherwise], the said surrogate on the day of , , made a decree requiring that said G. H., to whom said letters had been granted, should, within thirty days, render an account of his proceedings, or pay the same [or, otherwise, state briefly the object of the decree made]. [Or where the applicant seeks payment of a legacy, substitute for the first part of the foregoing paragraph: That he is a legatee under the will of the said A. B., deceased, and entitled to the payment of a legacy given him thereby; and that upon his petition — and continue as above.] [Or, where the applicant seeks payment of a distributive share: That he is one of the next of kin of said A. B., deceased, and is entitled to the payment of a distributive share of the estate ; and that upon his petition — and continue as above.] III. That said G. H. has refused to perform said decree, and has not ren- dered an account [or, has not paid the same], although on the day of , , he had due notice of said decree, and was requested so to do. IV. That a certified copy of the bond of said A. H. is hereto annexed. V. That the letters of administration [with the will annexed — or, letters testamentary] so granted to the said A. B., were revoked by a decree of the surrogate's court of this county, rendered on the day of , , and no successor has been appointed in said administration. Wherefore, your petitioner prays for an order permitting him to maintain an action upon the bond given by the said G. H., as such administrator, for the faithful discharge of the trust reposed in him, in behalf of himself and all others interested in the estate of the said A. B., deceased, to recover the value of the property so received by the said administrator and not duly adminis- tered by him. [Signature.] [Verification.] 1 Each of the next of kin having a separate certificate in his favor may sue for hia share. Brawley V. Forman, 15 Hun, 144. See Hood v. Hood, 85 N. Y. 561: Bieder v. Steinhauer, 15 Abb. N. C, 428. 1001 FoKMs. Na. 57. II. Order Permitting Suit. [Title.] Upon reading and filing the verified petition of C. D. setting forth [recite suistance of allegations of petition] : Now, on motion of Y. Z., attorney for said petitioner, it is Ordered, that the said C. D. be, and he hereby is, permitted to maintain, in behalf of himself and of all others interested, an action upon the official bond given by said G. H., as administrator [etc.], dated the day of , , and now on file in the office of the surrogate of this county, to recover the value of [describing property] : and that the moneys recovered in such action be paid by the officer collecting them into the surrogate's court of this county, to be distributed according to law. [Signature of], Surrogate. III. Same; in Action hy the People.^ [Recitals as above.] Ordered, that the bond given by said G. H. [describing it as above], be prosecuted by said C. D., in the name of the people of this State, joining his name as relator ; and that the moneys collected therein, in satisfaction of such decree, be applied in the same manner as the same ought to have been applied by said G. H. [Sigruiture of]. Surrogate. No. 57. [Ante, § 494.] Appraisal of Assets and Making Inventory. I. Petition. [Title.] To the Hon. , Surrogate. Application is hereby made by L. R., as executor [or, administrator] of the estate of A. B., deceased, to have appraisers appointed to estimate and appraise the personal property of said deceased, which consists of [describ- ing it]. Dated, [Signature of]. Executor. II. Order Appointing Appraisers.^ [Title.] Upon the application of C. D., administrator, etc., of the said A. B., deceased, it is ordered that J. K. and L. M., both of the town of Yonkers, in the county of Westchester, two disinterested persons, be, and they are hereby, appointed appraisers of the personal property of the said A. B., deceased, to estimate and appraise the same; and they are hereby authorized and required to truly, honestly, and impartially appraise the personal property of said deceased, which shall be exhibited to them, according to the best of their knowledge and ability. [Signature of]. Surrogate. III. Appraiser's Oath. [Venue.] I, J. K., of the town of , in said county, appraiser, duly appointed by the surrogate of the said county of Westchester, do swear and declare, that I will truly, honestly, and impartially appraise the personal property of A. B., late of the said county of Westchester, deceased, which shall he for that pur- pose exhibited to me, to the best of my knowledge and ability. [Jurat.] [Signature.] 1 People ex rel. Becar v. StruUei-, 16 Hun. 234. The action may be brought by an assignee of the bond. See Cridler v. Curry, 66 Baib. 386, and Rowe v. Parsons, 6 Hun, 338, as to what is a sufficient assignment. 3 As to duties and compensation of appraisers, see Co. Civ. Proc, |§ 2565, 2711, as amended 1893; and page 494 et seg., ante. No. 57. FoEMS. 1002 IV. Notice of Appraisement. To tlie legatees, next of kin, and to all persons interested in the estate of A. B., late of the city of Yonkers, in the county of Westchester, deceased: Notice is hereby given, that the undersigned, the administrator, etc., of said deceased, with the aid of J. K. and L. M., the sworn appraisers appointed by the surrogate of the county of Westchester, to estimate and appraise the per- sonal property of the said deceased, will proceed to make an appraisement of all the goods, chattels, and credits of said deceased, at the late residence of said deceased. No. , street, in the said city, on the day of , , at ten o'clock in the forenoon. [Date.'\ [Signature of representative.'] V. Inventory. A true and perfect inventory of all the goods, chattels, and credits which were of A. B., late of the city of Yonkers, in the county of Westchester, de- ceased, made by the administrator, etc., of the said deceased, with the aid and in the presence of J. K. and L. M., both of said county of Westchester, they having been duly appointed and sworn appraisers, containing a full, just, and true statement of all the personal property of the said deceased which has come to the knowledge of the said administrator, and particularly of all moneys, bank bills, and other circulating medium belonging to the said deceased, and of all just claims of said deceased, against said administrator, and of all bonds, mortgages, notes, and other securities for the payment of money, belonging to the said deceased, specifying the names of the debtors in each security, the date, the sum originally payable, the indorsements thereon, with their dates, and the sum which, in the judgment of the appraisers, may be collectible on such security. Upon the completion of this inventory, duplicates thereof have been made, and signed at the end thereof by the appraisers. [I.] Specific articles set off to widow, husband, or minors. lEere enumerate the articles coming within Code Civ. Proc, § 2713, as amended 1893, subds. 1, 2, 3, ante, § 495, and which are included in the in- ventory without heing appraised. State, in addition, the articles specified in suhd. 4, and that they do not, in the aggregate, exceed $150 in value.'] [II.] $150 worth of personal property set off to widow, husband, or minors. In addition to the above enumerated articles exempt from appraisal, the appraisers, pursuant to the statute, set apart the following articles of neces- sary household furniture, provisions, and other personal property, selected in their discretion, for the use of the widow and minor children [or, in case of a widow dying, of the minor children] of the deceased, the same not exceeding in value one hundred and fifty dollars: [Here enumerate the articles set apart to the widow, under Code Civ. Proc, § 2713, as amended 1893, subd. 5, and which are to be appraised. [III.] Chattels in possession having an ascertainable value. [Here enumerate and describe such articles as household furni- ture, stock in trade, tools, farming implements, etc., other than those specified above, and set opposite each its appraised value, e. y District Attorney for Appointment of Appraisers. To the Surrogate's Court of the county of : The petition of D. N., of the city of , respectfully shows: I. That your petitioner is the district attorney of the county of II. That on or about the day of , , at the city of , M. N. died, and was at the time of his death a resident of the county of III. That said deceased left a last will and testament which, on the day of , , was duly admitted to probate by the surrogate of the county of , in and by which he appointed as the executor thereof, A. B., [or, in case of intestacy, say: — that said deceased died intestate, and on the day of , , letters of administration were duly issued to A. B.,] who duly qualified as such, and his letters are still in force. IV. That said decedent died seized or possessed of property within thia State or subject to its laws, and the value of which exceeded the sum of five hundred dollars. v. That upon the death of said M. N., certain of the property of said de- cedent thereupon passed to [giving names of legatees or distributees, otlier than those mentioned in the succeeding pa/ragraph^. VI. That none of the persons designated in the foregoing paragraph. No. V. of this petition, stood in the relation to the deceased of a father, mother, hus- band, wife, child, brother, sister, wife or widow of a son, husband of a daugh- ter, a child adopted as such in conformity with the laws of this State, a person to whom said deceased, for not less than ten years prior to such trans- fer, stood in the mutually acknowledged relation of a parent or a lineal de- scendant of said deceased, born in lawful wedlock; nor is any person so desig- nated a bishop or a religious corporation. VII. That the property so passing or some part thereof is subject to taxa- tion under article X of chapter 908 of the Laws of 1896, in relation to tax- able transfers of property. The foregoing allegations are made on information and belief. VIII. Your petitioner further shows that the treasurer of the county of has notified your petitioner in writing of the refusal or neglect of the persons interested in said property to pay the same, and that no part of said tax has been paid, and your petitioner has probable cause to believe that the same still remains due and luipaid. Whekepoee, your petitioner prays that a citation issue herein to [naming persons in paragraph V. above'], citing them to appear before this court on a day to be designated therein, and show cause why the tax under the act afore- said should not be paid, and said property be appraised if necessary for that purpose. [Date.] [Signatwe.] [Verification.'] XII. Citation on Application of District Attorney. The People op the State op New Yoek, By the grace of God, free and independent. To A. B., C. D., E. F., etc., send greeting: You and each of you are hereby cited and required personally to be and appear in the court of the surrogate of the county of New York, at the county courthouse, in said county, on the day of , , at 10:30 o'clock in the forenoon, to .show cause why the tax provided for by article X of chapter 908 of the Laws of 1896 of the State of New York, should not be paid on property passing to you and each of you under the will of M. N., late of said county, deceased, proved herein by decree, entered the day of , , and why such property should not be appraised according to law, if necessary for that purpose. And such of you hereby cited as are under the age of twenty-one years, are required to appear by your guardian, if you have one, or if you have none, to appear and apply for one to be appointed, or in the event of your neglect or 1023 FoEMs. No. 66. failure to do so, a guardian will be appointed by the surrogate to represent and act for you in the proceeding. In Testimony Whereof, we have caused the seal of the surrogate's court to be hereimto affixed. Witness, , Esq., surrogate of our said county, at the city of , the day of , in the year of our Lord, one thousand nine hundred and [Signature], Clerk of the Surrogate's Court. XIII. Order Assessing Tax in Proceeding hy District Attorney. [Title.'i Upon reading and filing the report of M. C, the appraiser herein, and after hearing D. H. on behalf of D. N., district attorney of the county of , in support of said report, and R. L., attorney for executors in opposition thereto, it is: Obdeked, Ist, that the cash value, at the date of decedent's death, of the property mentioned and described in said report, which is subject to the pay- ment of the tax due, under the law in relation to taxable transfers of prop- erty, is as follows: Interest of C. D $ Interest of E. F 2d, that A. B., as executor of said M. N., deceased, make payment to X. Y., the comptroller of the [State of New York], of the sum of dollars, being the amoimt of the tax upon the interest of said C. D., and the sum of dollars, being the amount of tax upon the interest of said E. F., together with interest upon each of said sums, at the rate of ten per centum per annum from the day of , , to the day of payment. And it is fuetheb oedeeed, that said A, B., as executor as aforesaid, pay to D. N., district attorney, the sum of dollars as and for his costs and disbursements herein. XIV. Notice of Assessment of TaaoA [Title.'i You are hereby notified that I have, by order made the day of , , assessed and fixed the cash value of such interest, estate, legacy, or prop- erty as you and each of you are entitled to receive from or out of the estate left by said M. N., deceased, and the amount of the tax to which the same is liable under article X, chapter 908, of the Laws of 1896. Baneflclary. Bis interest or estate. Cash value thereof. Tax assessed thereon. To, [Signature^ Surrogate. XV. Notice of Appeal to Surrogate. [Title.] You will please take notice, that A. R., sole surviving administrator of the goods, etc., of said deceased, and M. R., C. R., and D. R., next of kin of said deceased, hereby appeal to the surrogate from the appraisal of the value of the inheritance of said next of kin, made and filed the day of , , and also from the order or decree of the surrogate's court made and entered the day of , , confirming the said appraisement, and assessing 1 The subsequent proceedings against an executor to enforce the payment of the tax is by attachment (ind against a legatee by means of an execution. No. 60. FoEMs. 1024 the tax to which the property and interests of said next of kin are liable un- der article X of chapter 908, Laws of 1896, and from every part of said order. You will please take further notice, that the grounds of said appeal are as follows: [here specify with particularity each of the grounds to he relied o».]l Dated, New York, , Yours, etc., [Signature,^ Attorney for the Administrator. XVI. Bond on Appeal from Order Imposing Tax. [Proceed as in No. 45, to the * and continue thus: Whereas, on the day of , , an order of the surrogate's court, held in and for the county of New York, was entered in a certain matter therein depending entitled in the matter of the estate of M. N., deceased, assessing the tax to which the property and interests of the collateral next of kin of said deceased is liable, to wit: on the interest of A. B., $395.70; on the interest of B. C, $395.70; on the interest of C. D., $395.70, and orflering the payment by the administrator out of the funds of said estate to Hon. R. F., district attorney, the sum of dollars, as and for his allowance in said matter. And Whereas, tlie said next of kin and the administrator of said estate have appealed from said assessment and order, pursuant to the provisions of article X of chapter 908 of the Laws of 1896, Now, therefore, the condition of the foregoing obligation is such that if the above bounden A. E., administrator, etc., of W. R., deceased, shall pay all costs of said proceeding, and also whatever tax the court shall finally fix upo3i said several and respective interests, then this obligation shall be void, other- wise to remain in full force and effect. XVII. Order of Affirmance by Surrogate. [Title.] The appeal of the administrator and of M. R., C. R., and D. R., next of kin of said deceased, from, the appraisal of the value of the inheritances of said next of kin, made and filed the day of , , and also from the order or decree of this court made and entered the day of , , confirming said appraisal and assessing the tax to which the property and interests of said next of kin are liable, under article X of chapter 908 of the Laws of 1896, coming on to be heard, now upon the facts appearing before me, and after hearing R. L. R., attorney for the administrator and next of kin, appellants, and B. F. D., Esq., on behalf of the comptroller of the State of New York, It is adjudged [insert facts to he found, as for instance], that at the time of his death, the intestate decedent M. N., was domiciled in the State of Vir- ginia; that he died \mmarried, and his only next of kin were his brother, S. B. R. (since deceased), his sister, M. L. L., and the children of a deceased brother, to wit: M. R., C. R., and D. R. It is ordered, adjudged, and decreed, the property and interests of said col- lateral next of kin are subject to the operation of article X of chapter 90S of the Laws of 1896, and that the order or decree of this court confirming the report of the appraiser and assessing and fixing the tax upon the property and interests of said collateral next of kin, entered the day of , , be, and the same is affirmed, and the appeal is dismissed. [Signature,] Surrogate. XVIII. Notice of Appeal to Supreme Court. [Title.] Take notice, that A. R., sole surviving administrator, etc., of said intes- tate and decedent, and M. R., C. R., and D. R., hereby appeal to the appellate division of the supreme court for the first judicial department from the or- der of the surrogate's court of the county of , made and entered the iNo questions, other than those specified, will be considered on appeal. Matter of Davis, 91 Hun, 63; affd. 149 N, Y, 839. 1025 FoBMs. Xo. GT. day of , , appointing an appraiser herein; and also appeal from the order or decree of said surrogate's court made and entered the day of , , confirming the report of said appraiser and assessing the tax upon the pi'operty and interests of the collateral next of kin, and from every part of such order ; and also from the order or decree of said surrogate's court, made and entered the day of , , dismissing the appellant's appeal from said order of assessment, and adjudging that the property and in- terests of said next of kin are subject to the operation of article X of chapter 908 of the Laws of 1896. Dated, New York, , Yours, etc., [Signature], Attorney for Administrator. To Honorable , District Attorney, and to , Clerk of Surrogate's Court. No. 67. [Ante, § 782.] Compelling Payment of Debt, or Legacy, or Share. I. Petition for Payment of Debt. [As in next form to the asterisk, continuing: creditor of the estate of M. N., deceased, late of , whose will was — thence continuing as in next form from the dagger to the §, substituting six months for one year.] II. [In case of administrator allege grant of letters.'] III. [Allege claim, for instance, as follows:] That, on the day of , , your petitioner, in an action brought by him in the court against said Y. Z., as executor [or, administrator], xipon a debt then justly due to him from the estate of said deceased, recovered a judgment, duly given by said court against said executor [or, administrator], for the sum of dollars ; and that no part of the same has been paid [except the sum of dollars] . IV. [As in next form, substituting claim or judgment for legacy.] V. That said executor advertised for the presentation of claims against the estate of the said deceased, and your petitioner duly presented his claim, which was not disputed, and your petitioner, after the expiration of six months from the granting of such letters, demanded payment of his said claim, from the said executor, who has hitherto neglected and refused to pay the same or any part thereof, wherefore your petitioner prays, etc. [as in the succeeding form.] II. Petition for Payment of a Legacy or Distributive Share. To the Surrogate's Court of the county of : The petition of A. B. respectfully shows: I. That your petitioner resides at No. , street, in the [city of New York] ; and is a * [legatee named in the will of M. N., late of the city of New York, deceased, and by said will a legacy of dollars was bequeathed to your petitioner]. II. That said will was t duly admitted to probate by the surrogate ['s court] of the county of , by a decree duly made by said , on the day of , ; and letters testamentary were thereupon and on said day [or, on the day of , ,] issued to Y. Z., the sole executor therein named, and more than one year has elapsed since said letters were granted [or, if one year has not expired, state time and add: That the payment prayed for is necessary for the support — or, education — of your petitioner] . III. That said Y. Z. has filed an inventory of the personal property of said deceased.§ IV. That, as your petitioner is informed and believes, the said executor [or, administrator] has sufficient assets in hand applicable to the payment of your petitioner's legacy [or, distributive share ; if not enough to pay all insert, to pay one- th thereof], and that the same can be so applied without injuriously affecting the rights of others entitled to priority or equality of payment with your petitioner. 65 No. 67. FoEMs. 1026 V. That your petitioner has applied to said Y. Z. for the payment of said legacy [or, distributive share], and that the same has not been paid. Wherepoee, your petitioner prays that a decree be made requiring said Y. Z. to [render an account of his proceedings and] pay said legacy [or, share], and that said Y. Z. be cited to show cause why he should not pay said legacy [or, share]. ISignature.] [Verification:'\ III. Anmver of Executor to Petition.^ [Title.'] Y. Z., executor of the above-named deceased, for answer to the petition of A. B., praying for the payment of the legacy beqvieathed to him by said will, says: I. That he admits that the said will contains a bequest of dollars, in favor of the said A. B., but notwithstanding that fact, this executor has found, among the papers of the said deceased, a paper purporting to be a promissory note, and to be signed by the said petitioner, for an amount larger than the amount bequeathed to him, to wit, the sum of dollars, payable to the order of the decedent, and he verily believes that said note is a genuine se- curity, and should be set off against the claim of said petitioner for said legacy. II. That the petitioner, though named in the said will as a legatee, duly assigned the same to B. D., of the city of New York, for a valuable consid- eration. III. That by the express terms of said will said legacy was to be paid after the sale of certain real property, therein directed to be sold, which sale has not yet taken place. IV. That the petitioner, A. B., is not the same person as the A. B. mentioned in said will as a beneficiary thereunder. Wherefore, said executor asks that the said petition of A. B. be dismissed. [Signature.^ [Verification.J IV. Citation to Pay Creditor, Legatee, etc. [Command of citation:] to show cause why a decree should not be made directing you, as [executor of the will] of M. N., deceased, to pay the claim of A. B. against the estate of the said M. N., in the sum of dollars. V. Decree for Payment of Delit. [Title.] A. B., of the city of New York, having, on the day of , , pre- sented his petition to the surrogate of the county of , by which it ap- pears that he has a valid claim against M. N., late of the city of New York, deceased, for dollars, with interest thereon from the day of , ; and the said petition also setting forth the facts on which the said in- debtedness arose, and also showing that more than six months have elapsed since the granting of the letters testamentary of the last will and testament of the said deceased; and praying a decree against Y. Z., the executor of the said M. N., deceased, for payment of the said claim; and the said ex- ecutor having been duly cited to appear on the day of , last past, and show cause why such payment should not be decreed; and the said Y. Z., having appeared, and having assented to the said claim of the said A. B., and having produced and filed an accoimt as such executor; and the said matter having been heard on .several days, and duly adjourned until this day; and it appearing, from the said account and from the proofs herein taken, that there are in the hands of the said Y. Z., as .such executor aforesaid, assets of the estate of the said M. N., deceased, to the amount of dollars, and 1 It i8 sufficient to state facts showing that the petitioner's claim is doubtful, to warrant a dismissal of the proceeding. 1027 FoEMs. No. 67. that the debts and outstanding liabilities of the said deceased do not exceed the sum of dollars: It is ordered and decreed, pursuant to the statute in such case made and provided, that the said Y. Z., executor as aforesaid, pay to the said A. B. the full amount of his said claim and interest, amounting in the whole to the sum of dollars and cents. And it is further ordered, that the said Y. Z. personally pay the fees of this proceeding, and the costs of the said A. B. therein to be taxed. [Decree for payment of legacy or share: adapt from above, according to petition.} VI. Execution on Money Decree. The People or the State of New York, To the Sheriff of the county of [Westchester], greeting: Whereas, on the day of , , the surrogate of the county of [Westchester] duly made a decree, directing the payment by Y. Z., executor of the last will [etc.] of M. N., deceased, to A. B., of the sum of dollars, for a debt due to the said A. B., and the sum of dollars, for his costs and expenses in the proceedings before said surrogate, making in the whole the sum of dollars. And Whereas, there is now actually due on said decree the sum of dollars, with interest thereon from the day of You ABE therefore Commanded and required to make said sum of dollars out of any the goods, chattels, and personal property of the said Y. Z. in your county, and if sufficient thereof cannot be found in your county, then out of the real property in your county of which the said A. B. was seized and belonging to him, on the said day of , , or at any time thereafter, in whose hands soever the same may be, and that you return this execution, with your proceedings thereon, to the surrogate's court of said county, in sixty days after the receipt by you of the same. Witness, 0. T. C, surrogate of said county, at White Plains, the day of [Signature of surrogate, or of clerk to the surrogate's court.] [Seal] VII. Bond to Refund Legacy Paid Pursuant to Decree. Know all men by these presents, that we, M. N., of the city of New York, and J. K. and L. M., of the same city, are held and firmly bound unto C. D., the executor of the last will and testament of A. B., late of the city of New York, deceased, in the sum of six hundred dollars, lawful money of the United States of America, to be paid to the said C. D., as such executor afore- said, or to his certain .attorney, successors, or assigns ; to which payment well and truly to be made we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , one thousand nine hundred and Whereas, the said A. B., in and by his said last will and testament, did give and bequeath to the said M. N. the sum of one thousand dollars; And Whereas, the said legatee has lately applied to the surrogate of the county of New York [previous to] the expiration of one year from the granting of the letters testamentary to the said executor, to be allowed to receive a portion of the said legacy, to the amount of three hundred dollars [as necessary for his education — or, support] : and reasonable notice of the said application hav- ing been given to the said e.xccutor, and the said surrogate being about to al- low the said portion of the said legacy to be advanced to the said legatee, pur- suant to the statute in such case made and provided, upon the execution and delivery of this obligation : Now, the condition of this obligation is such, that if the said M. N. shall return the said portion of the said legacy, with interest, whenever required, then this obligation to he void, otherwise to remain in full force and virtue. Sealed and delivered [etc.]. [Signatures and seals of obligors.] [Acknowledgment and justification of sureties.] 'Nob. 68, 69. Tokms. 102S No. 68. [Ante, § 790.] Bond to Refund Legacy Directed by the Will to be Paid before the Expiration of the Year. [As in last above form to and including date.'] Whereas, the said A. B., in and by his said last will and testament, did give and bequeath to the said M. N. the sum of five hundred dollars, and di- rected the same to be paid to him in two months after the decease of the said A. B. : And Whereas, the said M. N. has demanded payment of the said leg- acy from the said executor before the expiration of one year from the time of the granting of the letters testamentary of the said last will and testament to the said executor, and the said executor is about to pay the same, pursuant to the statute in such case made and provided, upon the execution and delivery of this obligation: Now, THE CONDITION of this obligation is such, that if any debts against the said deceased shall duly appear, and which there shall be no other assets to pay, and there shall be no other assets to pay other legacies, or not sufficient, and the said M. N. shall refund the legacy so paid, or such ratable proportion thereof, with the other legatees, as may be necessary for the payment of the said debts, and the proportional parts of such other legacies, and the costs and charges incurred by reason of the said payment to him; and if the probate of the said will shall be revoked, or the will declared void, and the said M. N. shall refund the whole of the said legacy, with interest, to the executor or administrator entitled thereto, then this obligation to be void; otherwise to remain in full force and virtue. Sealed and delivered [etc.]. [Signatures and seals of oMigors.] No. 69. [Ante, § 792.] Bond on Payment of Legacy to General Guardian. Know all men by these presents, that we, C. D., of , general guardian of the person and estate of A. B., a minor, and J. K., of , and L. M., of , are held and firmly bound unto the said A. B., the minor aforesaid [continue as in Form 67, VII]. Whereas, the above-named A. B. is entitled to a legacy of dollars, given and bequeathed to him in and by the last will and testament of G. H., late of , deceased, which last will has been duly admitted to probate and record by the surrogate of ; and letters testamentary thereon duly granted and issued to W. M. and H. B., the executors in said will named; And Whereas, the said A. B. is a minor, and the said C. D. has been duly ap- pointed his general guardian; And Whereas, the said surrogate having or- dered that the said executors pay to the general guardian of the said A. B. the said legacy of dollars; Now, therefore, the condition of this obligation is such, that if the above bounden C. D. shall and will faithfully apply said legacy, and render a true and just account of the application thereof, in all respects, to any court hav- ing cognizance thereof, when thereunto required, then this obligation to be void, else to remain in full force and virtue. Sealed [etc.]. [Signatures and seals of obligors.'] [Acknowledgment and justification of sureties.] [Indorsed.] I approve of the within bond as to its form, manner of execution, and suffi- ciency of the sureties. [Signature of surrogate.] 1029 FoEMs. No. 70. No. 70. [Ante, § 850.] Application of a Decedent's Real Property to Pay Debts.^ I. Petition. To the Surrogate's Court of the county of : The petition of A. D. respectfully shows: I. That your petitioner is sole executor [or, an executor] of the last will of M. N., late of , deceased [or, an administrator of the goods, chattels — etc. — or, a creditor of M. N. — etc.]. II. lln a case of testacy'\ That said M. N. died on the day of . , , leaving a will which was duly admitted to probate [or, to record], by an order duly made by the surrogate ["s court] of this county, on the day of J > hy which will the testator appointed your petitioner [or if the petition is iy a creditor, appointed CD.] the [sole] executor thereof. [ Or, in a case of intestacy, II. That on the day of , , the said M. N. died, and your petitioner — or, if the petition is hy a creditor, that C. D. was thereupon duly appointed administrator of the goods, chattels, and credits of said E. N., by an order duly made by the surrogate — -'s court — of thio county, on the day of , ]. III. That thereupon your petitioner lor if petition is by a creditor, said C. D.] duly qualified; and thereupon, by an order of said surrogate['B court], duly made on the day of , , letters testamentary [or, of admin- istration with the will annexed — or, of administration] were duly issued to your petitioner, who thereupon entered on the discharge of his duties as such [or, if the petition is by a creditor, say, duly issued to said C. B.], which let- ters still remain in force. IV. [Where more than three years have elapsed'l That, before the expiration of three years from the time of said issue of letters, and until the present time [or, until the day of , ], an action was, and has been, pending between your petitioner [or, said C. D.] as such executor [or, administrator] and C. D., claiming to be [or, and your petitioner as] a creditor of the estate of said decedent [or, if the creditor was defendant, insert, in which said — creditor — sought, by his answer setting up a eoumterclaim], to recover upon the demand hereinafter mentioned; and that before the expiration of said three years said C. D. [or, your petitioner] duly filed in the ofiSce of the clerk of the county of , a notice of pendency of said action, with direction to index the same in the names of [namesi, which notice specified the names of the parties to said action, the object of the action [or, the nature of said counterclaim], and contained a description of the premises in said county, which are hereinafter described, and that they would be held as security for any judgment obtained by said in said action. V. That an inventory of the personal property was duly made and filed by , on or about the day of , ; and that the personal estate of said decedent has been discovered to be insufficient for the payment of the debts [or, the funeral expenses — or both'] of said decedent. VI. [Where there has been advertisement for claims] That, on the day of , , pursuant to an order theretofore duly made by the said surro- gate, your petitioner [or, said C. D.] commenced the publication of notices to creditors of said M. N., to present their claims, and continued said publication, agreeably to the statute, for the period of six months. VII. [If an executor or administrator petitions'] That the amount of personal property of said decedent, which has come to the hands of your petitioner as such executor [or, administrator, — or, if there are co-representatives not join- ing in the petition, say, to the hands of your petitioner and the said , or to the hands of either of them], is dollars; and that the sources and the manner in which the said sum has been derived appear in the account hereto annexed [or, by the final account of said , duly judicially settled by a decree of this court made on the day of , , of which account and decree a copy is hereto annexed], marked Schedule A. ISee Co. Civ. Proc, §2758. No. 70. FoEMS. 1030 That your petitioner has expended of the said amount, in the due course of administration of said estate, the sum of dollars, and that the particu- lars of such expenditure also appear in the said account [or, copy account and decree] hereto annexed, marked Schedule A, leaving in the hands of your peti- tioner, as such executor, on this day of , , the sum of dollars. That the sum of dollars is still due and owing your petitioner, as [executor], from [etc., stating any other available assets'], and there are no other sums yet to be realized from the assets of said decedent. That your petitioner has proceeded with reasonable diligence in converting the personal property of said testator into money, and applying the same to the payment of debts. VIII. [If petitioner is a creditor allege claim, e. g., thus} That said dece- dent died indebted to your petitioner in the sum of dollars, and interest from the day of , , upon a promissory note made by said dece- dent payable to your petitioner or order, dated the day of , , and payable in days after date; that the said claim is justly due to your petitioner; that no payments have been made thereon, and that there are no oflFsets against the same to the knowledge of your petitioner; and that the same is not secured by judgment or mortgage upon or expressly charged on the real estate of the said deceased. [If a judgment is shown, state the amount, exclusive of costs; and if a mortgage he shown, let it appear that it is not a lien on the decedent's real property.'] That your petitioner has presented his said claim to the said [executor], and that the same has been admitted by him to be a valid and subsisting claim against the said decedent. [And if an accounting has been had, add] That on the day of last past, the said C. D. rendered to such surrogate an account of his proceedings as such executor [or, administrator], which said account has been judicially settled by a decree made by the said surrogate's court — a copy of which account and decree is hereto annexed and marked Schedule A], and that it appears from the said account, upon such settlement, that there are not sufficient assets to pay the debts of the said decedent. IX. That the unpaid debts outstanding against the said decedent, and the particulars thereof, with the name and address of each creditor or person claiming to be a creditor, as far as the same can be ascertained by your peti- tioner, together with the name and address of each person holding or claiming to hold a lien by judgment, docketed against the decedent before his death, the date of docketing of each, and the portion of the real property of decedent affected thereby; also the amount of the unpaid funeral expenses of said de- cedent, arid the jiame and address of each person to whom any sum is due by reason thereof, appear in the schedule hereto annexed, marked Schedule B. That all the debts against the said decedent, not secured by mortgage, and which now remain to be paid, so far as the same can be ascertained by your petitioner, and as having been admitted by him [or, by said executor — or, ad- ministrator], upon due evidence, amount to dollars, exclusive of interest, as fully appears by said Schedule B. That the claims against the said decedent, mentioned in the Schedule hereto annexed, marked Schedule C, having been presented to your petitioner, as such [or, to said] executor [or, administrator], but have not been admitted by him, for the reason [as your petitioner is informed and believes] that [here indicate it, e. g., thus] that by the books of account of said decedent, it does not appear that such large sums are due to the parties presenting the claims. X. That the following described real property is, as your petitioner is in- formed and believes, all the real property within the State of New York of which said decedent died seized, or which in anywise belonged to him at the time of his death [description in full, giving nature and amount of incum- brances thereon. — If there are several distinct parcels, say, Pabcei, Number 0^^ — description]. The value of said premises constituting parcel num- bered one is, in the judgment of your petitioner, dollars. It is occupied by L. N., of [or, hereafter named], as a pasture [or, not occupied]. [Where there are several parcels, may add:] Said parcel numbered one is not subject to any charge or lien [or, is subject to — stating the charge or lien, e. g., thus — a mortgage for dollars, made by said decedent to M. H., 1031 FoEMs. No. 70. and due on the day of , , but the same has not been paid] ; and that said parcel [was not devised by said will, but] descended to the heirs of said decedent hereinafter mentioned ; and has not been sold by them, or any of them [or otherwise stating facts material to the order of sale]. [Where there is an interest in an executory contract] Parcel NtfMBEB [Two]. The interest of the said decedent, in certain real property held by him under a contract made by him with 0. P., of , bearing date the day of , , for the purchase by said decedent from said O. P., for the sum of dollars, of the said last-mentioned real property, being the following described premises: [description in full]. The sum of dollars was paid by said decedent thereon; and the sums remaining unpaid, which have heretofore become due, or hereafter are to be- come due, on said contract, are as follows: [enumerating them, with date when each was or is to ie due]. The value of the interest of said decedent in the last-mentioned premises under said contract is, in the judgment of your petitioner, the sum of dollars. The value of said last-mentioned premises is, in the judgment of your peti- tioner, dollars [if there are several distinct parcels, state value of each]. [State situation as to improvement or otherivise, and occupancy or other- wise, as in other cases aiove.] XI. That none of the aforesaid real property of decedent was devised ex- pressly charged with the payment of debts or fimeral expenses, nor is such property subject to a valid power of sale for the payment of such debts, claims, or expenses. XII. That the names and ages of the husband [or, wife] and of the heirs and devisees of the said decedent, and of every other person claiming ' under them, or either of them, and their residences are as follows, viz. : [stating them and their relation to decedent. If any are infants, or absentees, state the facts, name of guardian, etc., as in No. 16]. XIII. That no previous application has been made for a decree authorizing the disposition of the real property of said decedent, for the payment of his debts or funeral expenses. Wheeefore, your petitioner prays that a, decree be made directing the dis- position [or, sale — or, mortgaging - — • or, leasing] of the said real property of said decedent, or so much thereof as may be necessary for the payment of his debts [or, funeral expenses — or ioth] ; and that [names] may be cited to show cause why such a decree should not be made. [Signature.] [Verification.] [Annex schedules with signature of petitioner to each.] II. Creditor's Notice of Pendency of Action.! [TitU.] Notice is hereby given, under and in pursuance of section 2751 of the Code of Civil Procedure of the State of New York, of an action brought by J. S., plaintiff, against A. P., as executor of the last will and testament of [or, ad- ministrator of the estate of] M. N., deceased, late of the city of , county of , and State of New York, to recover judgment upon the following demand: [describe claim briefly]. The following real property, owned by the decedent in his lifetime and at the time of his death, situate in the of , bounded and described as follows: [describe it by metes and bounds], is affected by said action, and such real property will be held as security for any judgment obtained in the action. [Date.] [Signature], Plaintiff's Attorney. III. Order for Executor or Administrator to Account. [Title.] E. G., claiming to be a creditor of A. B., late of the city of New York, in the county of New York, deceased, having presented his petition to the surro- 1 See Co. Civ. Proc'S 2751. No. 70. Forms. 1032 gate's court, duly verified, praying for disposition of the real estate of said decedent for payment of his debts, and the said petition, not enumerating the said debts particularly or stating the same in detail, Now, on motion of L. R., counsel for said petitioner, it is hereby Ordered, that P. M., the executor of the will [or, administrator of the estate] of said decedent, show cause before said surrogate's court, at the surro- gate's office, in the county of New York, on the day of , , at 10:30 o'clock in the forenoon of that day, why he should not be required to render an account of his receipts and disbursements as such executor [or, ad- ministrator], and to file a statement of any and all of the claims, debts, or demands against said decedent presented to and known by him, and to render an account of all personal property of said decedent. Let a copy of this order to show cause be served upon said P. M., executor, personally, on or before the day of ISignature], Surrogate. IV. Order for Citation. [Title.] On reading and filing the petition of A. B. [the executor], aforesaid, verified the day of , , and presented this day of , , and praying for authority to mortgage, lease, or sell the real property of said de- cedent for the payment of his debts [or, funeral expenses — or iotJi], it ap- pearing to the surrogate that said petition has been presented within three years from the time the letters testamentary [or, of administration] on the estate of said decedent were granted; and the surrogate being satisfied by the said petition [and by the affidavit of C. D., verified the day of , , and filed herewith, and by the testimony of E. F., a witness produced before and examined by said surrogate], and by due inquiry by him made, that all the facts specified in section 2754 of the Code of Civil Procedure have been ascertained, as far as they can be upon diligent inquiry, and are stated in said petition: [Or, where petitioner was ignorant of an essential fact, add, except as here- inafter stated ; and it being alleged in said petition that, upon diligent inquiry, the said petitioner is unable to ascertain — indicating the fact, e. g. — the names of all the heirs of said M. N., and of every person claiming under them or either of them, — and the surrogate having inquired into the matter and being satisfied, by the allegations of the petition and the testimony of W. W., and the affidavit of A. F., verified the day of , , and filed here- with, that such names cannot be ascertained with reasonable diligence:] And it appearing to the surrogate, in the manner aforesaid, that the debts [or, funeral expenses — or iotft] of said decedent cannot be paid without re- sorting to the real property [or, interest in real property — or bothl of said decedent ; Now, on motion of A. T., attorney for said petitioner, It is ordered, that a citation issue out of this court upon said petition, re- quiring [names] to appear before said surrogate, on the day of , , at o'clock in the noon, and then and there to show cause why authority should not be given to the said executor [or, administrator] to mortgage, lease, or sell so much of the real property of the said decedent, as shall be necessary to pay his debts [or, funeral expenses — or both]. [Where there are parties in interest not named in the petition] And it further appear- ing to said sui:rogate, in the manner aforesaid, that U. V., of the city, county, and State of , and W. X., of the city, county, and State of , not named in the petition [or, certain persons], whose names and addresses cannot with reasonable diligence be ascertained, claim an interest in the property mentioned in the petition as [or, under the] heirs [or, devisees] of said de- cedent; let said citation be directed also to said U. V. and W. X. [or, to the , — inserting a general designation of the class] . [If advertisement of claims is not alleged] And it not appearing that due advertisement for claims against said estate has been had, and the time for presentation thereof elapsed, let said citation be directed also generally to all other creditors of said decedent M. N., as well as to those named in said petition. 1033 Forms. No. 70. V. The Citation. [The command of citation is:] To show cause why a decree should not be made directing the disposition [or according to the prayer of the petition, the sale — or, the mortgaging — or, the leasing] of the real property of the said decedent M. N., or so much thereof as may be necessary for the payment of his debts [or, funeral expenses — or both']. VI. Bond of Executor or Administrator. [As in No. 45, to and including date.] Whereas, the above bouuden A. B. [executor, etc., descriiing estate], lately applied [or if creditor applied, state the fact] to the surrogate['s court] of the county of , for authority to dispose, by mortgage, lease, or sale, of as touch of the real property of the said M. N., deceased, as shall be necessary to pay his debts [or, funeral expenses — or both] ; And Whereas, such proceed- ings in due form of law have been thereupon had, that the said surrogate has decreed a [sale] of so much of the real property whereof the said decedent died seized as shall be sufficient to pay the debts [and funeral expenses] of the said decedent, which the surrogate has adjudged valid and subsisting pursuant to the statute. Now, THE CONDITION of this obligation is such, that if the said A. B. shall faithfully perform the duties imposed upon him by said decree, and shall pay into the said surrogate's court, within twenty days after the receipt thereof by him, all money arising from any such mortage, lease, or sale, and shall de- liver to the said surrogate, within the same time, all the securities taken there- upon, and shall account for all money received by him, whenever he is required so to do by a court of competent jurisdiction, then this obligation to be void, otherwise to remain in full force and effect. [Sealed and delivered in presence of] [Signature and seals.] [Affidavit of sufficiency, as in No. 45.] [Bond of freeholders same as above mutatis mutandis.] VII. Order Appointing Special Guardian of Infants.] [See ante, No. 11, IV.] VIII. Order for Trial by Jury in a Proceeding to Sell Real Estate to Pay Debts. [Title.] A. B., having presented to the surrogate, upon the return of a citation to the creditors, heirs-at-law, and administrator of the estate of the above- named deceased, a claim against the said deceased, arising upon a promissory note claimed to have been made by the said decedent in his lifetime, of which the following is a copy: [Here insert copy of note, or account.] And C. D., the said administrator, having disputed said claim and alleging that said decedent did not make said note, and that he did not deliver to the payee; and the surrogate having decided that the issue should be tried at a circuit court to be held within this county [in the county court of the county] ; It is ordered, that such controverted questions of fact, to wit: whether the said decedent made said promissory note in his lifetime, and whether he delivered said promissory note in his lifetime, to the payee, for value, be tried by a jury at a circuit court, to be held as aforesaid. [Signature of]. Surrogate. IX. Order Appointing Appraisers. [Title.] All the facts specified in section 2759 of the Code of Civil Procedure, having been satisfactorily established in this matter, , the said surro- gate of said county , in order to inquire and determine whether suffi- No. 70. PoBMs. 1034 cient money can be raised advantageously to the persons interested in the real property, by a mortgage or lease of the real property of which the said C. D. died seized, or of a part thereof, does hereby order that O. P., Q. R., and S. T., three competent and disinterested persons, be, and they are, hereby appointed to examine and appraise each parcel of real property of which the said decedent died seized, and each parcel of real property, mentioned and described in the petition in this matter, and its rental value at its just and fair market value; and it is further ordered that they, the said appraisers, shall forthwith so appraise the same, and make a report thereof, signed and verified by at least two of them, describing each parcel, and stating its value and rental value, and file the same in the surrogate's office. The premises to be appraised are described as follows, to wit: [descri}>e property hy metes and 6oM»ds]. X. Oath of Appraiser. STATE OF NEW YORK, ) County of , J **" ' I, 0. P., an appraiser duly appointed by the surrogate of the county of , do swear and declare, that I will truly, honestly, and impartially examine and appraise each parcel of the real property of C. D., deceased, and its rental value, at its just and fair market value, to the best of my knowledge and ability. [Jurat.'] XI. Report of Appraisers. [Title.] We, the undersigned, persons duly appointed by an order of this court, bearing date the day of , , to examine and appraise each parcel of the real property, of which the said C. D., deceased, died seized, and its ren- tal value at its just and fair market value, and each parcel of real property mentioned and described in said order, at its rental value at its just and fair market value, do hereby report:. First. That we have examined and appraised each parcel of real property of which the said C. D. died seized, and its rental value at its fair market value, which are the same parcels of real property and all thereof, mentioned and described in said order. Second. That parcel No. 1 consists of about six acres of land, upon which are two buildings [or, otherwise describing property] ; that about three acres of the same are under cultivation and the balance is [describing it] ; that the fair market value of said parcel is the sum of dollars ; and the annual rental value is the sum of dollars, [and so on with respect to each parcel] . Third. And we do further report, that we have each been actually engaged in examining and appraising said real property, and making this report, ten days' time. All of which is respectfully submitted. Verification of Report. [Venue.] 0. P., Q. R., and S. T., appraisers of the real property of C. D., being severally duly sworn, deposes and says, each for himself, that he has examined and truly, honestly, and impartially appraised, to the best of his ability, each parcel of the real property of the said deceased, as hereinafter set forth, and its rental value at its just and fair market value, and that the foregoing appraisal is in all respects correct and true. [Jurat.] XII. Decree for Disposal of Real Property.^ [Title.] A. B., of , the executor of the will [or, administrator — or, a cred- itor — of the estate] of M. N., deceased, late of , having heretofore, and within three years after the issue of letters on said estate, duly presented to 1 This decree should be recorded. 1035 FoEMs. No. 70. the surrogate ['s court] of the county of , his petition, dated the day of , , prfiying for a decree for the sale, mortgaging, or leasing of the decedent's real property to pay his debts lor, funeral expenses] ; and the said surrogate having been duly satisfied, upon proper inquiry and evidence, that a proper case was made and duly presented, and having thereupon caused a citation to be issued out of this court, requiring [names] to appear before him, the said surrogate, upon such application; and the said citation having been returned on that day, and filed, together with proof of due service thereof on each of the persons therein named; and the said surrogate having, by an order duly made and entered herein, on the day of , , appointed S. G. special guardian for the minors I. F. and J. F., for the protection of their in- terests herein; and the said A. B. having appeared by A. T., his attorney and counsel, and C. D., one of the heirs of the said decedent, having also appeared by B. T., his attorney and counsel, and the said guardian having appeared in person, and the proper proceedings, in due form of law, having been there- upon had [and duly adjourned to this day] : [Where heirs or devisees — or their assigns not cited — have intervened} And said Y. Z. [or, one Y. Z. of , claiming as ], having filed an answer, verified the day of , , contesting the necessity of ap- plying said property to the payment of debts or funeral expenses, and the validity of the alleged debts, and the reasonableness of the said alleged ex- penses; and setting up a counterclaim against the demand of the petitioner: [Where creditors not cited have intervened] And C. D., of the city, county, and State of , a creditor of the said decedent, having also appeared and become a party hereto by presenting and proving his debt: [Or, And the matter being regularly called in open court by said surrogate, and no one appearing in opposition thereto, and the surrogate having, upon the return of the citation as aforesaid, proceeded to hear the allegations and proofs of the parties — or, and it having been thereupon referred by said sur- rogate to R. F., Esq., as referee herein, to take proof of the facts and circum- stances, and claims against the estate of said M. N., and report the evidence thereon — and to examine the account of the said A. B., and report thereon — ■ the said referee having duly made his report as ordered, and the same having been duty confirmed in all respects:] And after due examination so as aforesaid had, it having been established to the satisfaction of said surrogate: 1. That the said petitioner has fully complied with the requisite provisions of the statutes concerning the disposition of a decedent's real property for the payment of debts or funeral expenses ; and that the proceedings herein have been in conformity to title 5 of chapter 18 of the Code of Civil Pro- cedure. 2. That the following claims, for the purpose of paying which this decree is made, are valid and subsisting debts against said decedent's real property, and [that the charge for funeral expenses below mentioned is just and reason- able, and that all said claims are] justly due and owing,— to wit: [Enumerate them, with statement of nature, amount, and when due, in form of a schedule.] 3. That the claims above allowed amount in the aggregate [exclusive of in- terest] to dollars ; and that, none of them are secured by any judgment or mortgage [which is a lien upon the decedent's real property], nor expressly charged by said decedent's will upon his real property, or upon any interest in real property [except the debt of said Q. R., which was expressly charged upon the real property of said decedent; but the remedies of said Q. R., by virtue of which charge, have been exhausted — indicating how:] 4. That the following liens by judgment have been established, as valid and subsisting debts against the estate [set forth in schedule form a list of persons holding siich judgments, the date of docket of each, and a specifioa- tion of the property affected tiy each judgment]. 5. That the property hereinafter described was not effectually devised or expressly charged with the pajTnent of debts or funeral expenses, and is not subject to a valid power of sale for the payment thereof [or, that, although the property hereinafter described is expressly charged with the payment of No. 70. FoEMS. 1036 the debt of said Q. R., it is not practicable to enforce the charge, for the rea- son that — etc.— and the said Q. R. has effectually relinquished the same] : 6. That all the personal property of said decedent which could have been applied to the payment of his debts, judgment liens, and funeral expenses has been so applied [or, that the executor of the will — or, administrator of the estate — of said M. N. has proceeded, with reasonable diligence, in convert- ing the personal property into money, and applying it to the payment of the debts, liens, and funeral expenses of said decedent], and that it is insufficient for the payment of the same, as established by this decree: And said surrogate having thereupon duly inquired whether sufficient money can be raised advantageously to the persons interested in said real property, by a mortgage or lease of the real property of which the said decedent died seized; or of a part thereof, and having ascertained * that sufficient money cannot be so raised advantageously as aforesaid: t Now, on motion of A. T., attorney for said A. B., It is ordered, adjudged, and decreed : 1. That the claims of [insert names of all creditors whose claims are al- lowed'] hereinbefore named, in the amounts hereinbefore respectively stated, are valid and subsisting debts against said decedent's estate; that the claim of said S. T. is a reasonable charge for the funeral expenses of said decedent; and that the claim of W. S. hereinbefore named is rejected.t 2. That, for the purpose of paying the debts hereinbefore established, a sale of the following described real property, of which said decedent died seized, or so much thereof as may be necessary to pay such debts, be made by A. B., the said executor [or, administrator], upon his executing and filing with the surrogate of this county, the bond prescribed by law, in the penalty of dollars, and with sureties ; or, in ease of his failure so to do, by a free- holder to be appointed by the surrogate as prescribed by law [if at a private sale add: at a price not less than the value thereof, as appraised pursuant to statute]. The premises so to be sold are bounded and described as follows: [descrip- tion; If there are several distinct parcels, it is convenient to enumerate them; see petition}. [Where part cannot 6e sold without prejudice'] And it appearing to the said surrogate that a sufficient part of said real property [or, interest in real property — or both] to pay the debts [or, funer.al expenses — or ioth] of said decedent, to which it is justly applicable, cannot be sold separately, without manifest prejudice to the persons interested in said real property [if because title is in controversy, add, by reason of a controversy between and — and others — as to the decedent's title thereto or interest therein] , IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that [here direct Sale of sev- eral parcels together, or postponement of sale as to part]. [Where the order of selling several distinct parcels is to be fixed] And it appearing to the said surrogate that it is just that the sale of the several dis- tinct parcels be made as hereinafter directed [or, state devise or alienation, e. g., thus: that the house and lots in the village of M., numbered parcel above, were devised by the said M. N. to Y. Z., and have not been sold by him ; and that the three lots in the town of 0., numbered parcels two to four above, descended to the heirs of said decedent; and that the lot, parcel two, has not been sold by the said heirs, and the lots, parcels three and four, have been sold by them], it is hereby further ordered, adjudged, and decreed, that the s.ile of said premises [so far as necessary to raise the said sum of dol- lars] be made in the following order: [indicating separate parcels]. [Where interest under a contract is sold subject to payments] And it i.s further ordered, adjudged, and decreed, that the sale of the interest of said decedent in the premises [or, the parcel numbered herein] shall be made subject [to all payments heretofore due upon said contract and now unpaid, as well as] to all payments hereafter to become due upon said contract; and that the purchaser and purchasers of said interest must, before the sale is confirmed, execute to the said executor [or, administrator] his or their bond agreeably to the statute, and with sufficient sureties, in the penalty of [at least double all payments above required to be made] dollars. 1037 ToEMs. jSTo. 70. [Where guardian desires to luy} And G. G., the general guardian of the in- fant I. F., is hereby authorized, as such, to purchase all or any part of said premises at the sale hereby decreed, but in his name of office and for the bene- fit of his ward. IWhere sale is subject to judgment liens'] And it appearing to be for the best interest of all parties interested, IT is obdeeed, that said sale be made subject to the lien of the judgments hereinabove specified, and hereby estab- lished [or specify any one or more judgments, subject to which the sale may be made}. XIII. Decree for Lease or Mortgage. [As in l., of , do render the following account of my proceedings as [executor, etcl, of A. B., deceased: On the day of , , letters [testamentary] were issued to me. On the day of , , I caused an inventory of the personal estate of the deceased to be filed in this office, which personal estate therein set forth amounts, by appraisement of the appraisers duly appointed, to dollars. Schedule A,l hereto annexed, contains a statement of all the property con- tained in said inventory, sold by me at public or private sale, with the prices and manner of sale; which sales were fairly made by me, at the best prices that could then be had with due diligence, as I then believed; it also contains a statement of all the debts due the said estate and mentioned in said inven- tory, which have been collected, and also of all interest for moneys received by me, for which I am legally accountable. Schedule B, hereto annexed, contains a statement of all debts in said in- ventory mentioned, not collected or collectible by me, together with the rea- sons why the same have not been collected and are not collectible; and also a statement of the articles of personal property mentioned in said inventory un- sold, and the reasons of the same being unsold, and their appraised value; and also a statement of all property, mentioned therein, lost by accident, without any wilful default or negligence, and the cause of its loss and appraised value. No other assets than those in said inventory, or herein set forth, have come to ray possession or knowledge, and all the increase or decrease in the value of any assets of said deceased is allowed or charged in said Schedules A and B. Schedule C, hereto annexed, contains a statement of all moneys paid by me for funeral and other necessary expenses for said estate, together with the rea- sons and objects of such expenditure. [On or about the day of , in the year , I caused a notice for claimants to present their claims against the said estate to us within the period fixed by law, and .at a certain place therein specified, to be published in two newrpapers, according to law, for six months, pursuant to an order of the surrogate of the county of New York, to which order, notice, and due proof of publication herewith filed, I refer as part of this aecount.3 Schedule D, hereto annexed, contains a statement of all the claims of cred- itors presented to and allowed by me, or disputed by me, and for which a judg- ment or decree has been rendered against me, together with the names of the claimants, the general nature of the claim, its amoimt, and the time of the rendition of the judgment ; it also contains a statement of all moneys paid by me to the creditors of the deceased, and their names, and the time of such payment. Schedule E, hereto annexed, contains a statement of all moneys paid to the legatees, widow, or next of kin of the deceased. Schedule F, hereto annex'ed, contains the names of all persons entitled as widow, legatee, or next of kin of the deceased, to a share of his estate, with their places of residence, degree of relationship, and a, statement of which of them are minors, and whether they have any general guardian, and if so, their names and places of residence, to the best of my knowledge, information, and belief. .Schedule G, hereto annexed, contains a statement of all other facts affecting ray administration of said estate, my rights, and those of others interested therein. 1 This and the other schedules described in the statement of accoiAit are not applicable, of course, to all cases, as accounts must greatly vary in the nature ot their contents; but indi- cate, in general, the kind of information which the account and schedules should disclose. 2This allegation is not necessary, as a failure to publish notice to creditors is not a bar to a judicial settlement of the representative's claim. The petition should state one of the three grounds specified in Co. Civ. Proc, §8723. In proceedings for compulsory accounting, an order should be entered, preliminary to isi4uing citation, to the following efifect: It is OBDERED, that Paid C. D. render an account of his proceedings Fas executor of the will] of said A. B. to this court, on the day of . , at o'clock in the noon, and file the same herein on or before that time; and that the said CD. personally be and appea'' before said surrogate at that: time, xnd attend from time to time for the purpose of said account, as th*^ surrogate may decide; and that, in case of disobedience to this order, an at- tachment may issue against him. 1047 FoEMs. No. 72-; I charge myself as follows: With amount of inventory $ With amount of increase, as shown by Exhibit A I credit myself as follows: With amount of loss on sales, as per Schedule B $ With amount of debts not collected, as per Schedule B . . With amount of Schedule C With amount of Schedule D AVith amount of Schedule E Leaving a balance of $ to be distributed to those entitled thereto, subject to the deductions of the amount of my commissions, and the expenses of this accounting. The said schedules, which are severally signed by me, are part of this account. [Signatv^e.] XI. Oath to Accounts. [Title and Venue.] I, C. D., executor of A. B., being duly sworn, say, that the charges made in the foregoing account of proceedings, and schedules annexed, for moneys paid by me to creditors, legatees, and next of kin, and for necessary expenses, are correct: that I have been charged therfein all the interest for moneys received by me and embraced in said account, for which I am legally accountable ; that the moneys stated in said account as collected, were all that were collectible, according to the best of my knowledge, information, and belief, on the debts stated in such account at the time of this settlement thereof; that the allow- ances in said account for the decrease of the value of any assets, and the charges therein, for the increase in such value, are correctly made ; and that I do not know of any error in said account, or anything omitted therefrom, which may in any wise prejudice the rights of any party interested in said estate. And deponent further says, that the sums under twenty dollars, charged in the said account, for which no vouchers or other evidences of payment are pro- duced, or for which he may not be able to produce vouchers or other evidences of payment, have actually been paid and disbursed by him as charged ; and that said accoimt contains, to the best of my knowledge and belief, a full and true statement of all my receipts and disbursements on account of the estate of said decedent, and of all money and other property belonging to said estate which have come into my hands, or which have been received by any other per- son by my order or authority for my use, and that I do not know of any error or omission in the account to the prejudice of any creditor of, or person inter- ested in, the estate of the decedent. {.Jurat.l [Signature.] XII. Answer Containing Objections to Account.^ [Title.] J. K. and L. M. [next of kin — or, legatees named in the will — or otherwise as interested — of said deceased], contesting the account filed by C. D., admin- istrator of the estate [or, executor, etc.], of said deceased, allege that the said account is erroneous, in that it fails to charge the executor with the following items : First. An item of dollars, a claim against the said executor, for a debt owing to the deceased in his lifetime. Second. The proper sum received or chargeable against said executor for interest. That -the said accovmt is further erroneous in the following particulars: First. That the item of dollars, for funeral expenses, is extravagant, and not according to the station of the deceased. Second. That the item of paid to R. S. is erroneous, in that the pre- tended claim was not due, and was barred by the statute of limitations. [And so continue.'] [Signature of], [Date.] Attorney. 1 In New York county a copy of these objections should be served on the attorney for the accounting party. Xo. Y2. FoKMs. 1048 XIII. Affidavit for Order Directing Executor to Attend. [Title and Venue.'] N. E., being dul3' sworn, says: That he is one of the attorneys for the peti- tioner herein; that this is a proceeding to compel an accounting by M. L., as. executor of B. E. L., deceased; that deponent procured an order of this court dated on the day of , , requiring said M. L. to file his account as such executor, and the same was, on the day of , , duly served upon him; that pursuant to said order, said account was duly filed on the day of , , to which objections were filed by deponent on the day of , , that the proceeding has now been set down per- emptorily for hearing for the day of , , but said accounting party refuses to attend upon the hearing, as deponent is informed, unless or- dered to do so by this court [as appears by the annexed letters from his coun- sel]. Deponent, therefore, asks for an order pursuant to the terms of sec- tion 2375 of the Code, requiring the attendance of said accountant upon the hearing. [Jurat.] ISignature.] XIV. Order Directing Executor to Attend. ITitle.l On reading and filing the annexed affidavit and on motion of N. R., attorney for the petitioner. Ordered, that executor of B. R. L., deceased, attend at the surrogate's court,, to be held at the county courthouse in the city of New York, on the day of , , at 10:30 o'clock in the forenoon, to be examined under oath touching his receipts and disbursements, or touching any other matter relating" to the above estate, and his account heretofore filed herein. [May add clause as to mode and- sufftcicnct/ of service.] [Signature.] XV. Order of Reference. [Title.] The said C. D., executor aforesaid, having filed his account, and objections, thereto having been also filed; and the parties in interest appearing, Ordered, 1. That the said account be referred to J. K., Esq., and he is hereby appointed referee to examine said account [and to hear and determine the questions arising upon the settlement of said account]. 2. That the hearing be had before said referee, at such time and place, in the city of New York, as he shall appoint, and upon due notice to all parties who have appeared herein; and make report of his proceedings and determination to this court, with all convenient speed, and on the coming in of said report, notice is to be given to the parties that have appeared, of motion to be made before the surrogale on the question of confirming such report, or for such other or further order as may be proper. XVI. Referee's Report.l [Title.] I. The subscriber, referee appointed by the surrogate of the county of New York, to examine the accounts of C. D., administrator of the estate of A. B., deceased, and to make report thereon, do hereby respectfully report that I have examined the said accounts, and have been attended upon said exami- nation by the said administrator and by J. B., the widow of the said deceased, and by C. F., the guardian ad litem of the minor children of the sa-id deceased, and by P. B., on the part of the executrix of F. C, deceased, a creditor; that the accounts of the said administrator, presented by him, are correct, with the following exceptions, that is to say: 1. That the claim made by A. C, executrix, and J. L., executor, of F. C, deceased, should have been allowed by the said administrator at $696.29, instead of $101.48. 1 In New York county the referee's report will be confirmed, of course, unless exceptions are filed within eight days after written notice of filing and a copy of the report has been served upon the opposing party. 1049 Forms. No. Ti. 2. That from the bill of particulars of the item of $95.13, charged in said administrator's account for cash paid J. H., attorney, etc. [which bill of particulars is annexed to the said administrator's accoxmt and marked G], there should be deducted the sum of $5, the second item in said bill, which ought to be paid by the administrator personally, and not charged to the estate. I do also further report that, from the testimony taken before me, it appears that the said administrator has used due diligence in endeavoring to collect the debts due to the estate, and that he has collected all of the same that were collectible. I further report that the following are just claims against the said estate with the exception that the administrator has paid, as stated in his account, to S. H., $22.50; and to Mrs. A. C, executrix, etc., of F. C, deceased, $375, which amounts are to be severally deducted from their respective distributive shares of said estate, that is to say: [^specify creditors and amounts of their claims'i. There is also a suit now pending in the superior court of the city of New York, brought by said administrator against H. L., a debtor of said estate, who defends said suit on the ground that he paid the demand to the widow of the deceased before the appointment of the said administrator. The charges in said accounts of the said administrator, for moneys paid for necessary expenses, not hereinbefore particularly referred to, are correct, and also that the fixtures, stock, etc., at the factory belonging to the estate, were sold in the usual manner at public auction, and that the ordinary means, by advertising, etc., and due diligence and prudence were used in obtaining a, just price for the same. I do hereby further report, that the whole amount of the assets which have come to the hands of the said administrator is $1,294.57; that the amount of the administrator's commission is $57.36; that the amount which I have allowed as properly paid for necessary expenses is $404.08j leaving a balance applicable to the payment of debts and the expenses of this accounting, and any other necessary expenses that may yet be incurred, of $833.13. And, I further report, that all the claims presented against the estate, and allowed, amount to $953.42, of which a portion has been paid, as above stated. All which is respectfully submitted. [Date.] [Signature.] XVII. Report of Special Guardian. [Title.] I, E. S., heretofore appointed the special guardian of the infants, M. I. N., J. B. N., and K. G-. N., for the purpose of appearing for them and protecting their rights and interests in this proceeding, do hereby respectfully report that I have examined the accounts of W. H. G., as executor of [or, as trustee for A. B., under] the last will and testament of F. C. 6., deceased, and that the same are in all respects correct, so far as they affect the interests of the said infants. Dated, , , [Authentication as in a deed.] XVIII. Exceptions to Referee's Report. [Title.] The contestant, I. W. S., excepts to the report of J. K., Esq., referee herein, dated and filed the day of , , in the following respects: I. That said referee reported that the account of C. D., the [executor], presented before him, and by him examined, was correct and just, and that the sum of should be credited and allowed as charged in said accoimt. Whereas, he should have found and reported that [etc.]. II. That said referee omitted to find and report that the said C. D., executor, etc., was, and is, indebted to said estate for [etc., stating details.] [Date.] [Signature.] K'o. 72. ToEMs. 1050 XIX. Motion to Confirm Referee's Report. [Title.'] Take notice, that upon the report of the referee herein, and upon all the papers filed and proceedings had in this matter, a motion will be made at a surrogate's court, to be held [etc.], for an order confirming said report, and also for a decree judicially settling the account of said [executor], and directing distribution to the parties entitled thereto, and for such further or other order or decree herein as may be just and proper. XX. Affidavit of Regularity to Obtain Decree where there is no Contest. [Title and Venue.'] A. B., being duly sworn, says, that he is the attorney for the executor of the above-named decedent; that all the parties to this proceeding have been duly cited or have duly waived the issuance and service of a citation, approved the accounts filed herein, and consented to the entry of a decree approving and settling the same, in the manner and form following, to wit: [As to service on adults and infants:] I. By service of a copy of the citation issued herein upon the following persons, in the manner prescribed by sections 2520, 2526, and 2527 of the Code of Civil Procedure, as more fully appears by the proof of service thereof, made in the manner and form pre- scribed by law, and filed herein on the day of , , viz.: [here state the names of the persons served, and when and where the service took place.] [Nonresidents :] II. By service thereof without the 8tate, or by publication in pursuance of an order, made herein on the day of , , under sections 2522 and 2523 of the Code of Civil Procedure, as more fully appears by the proof of service thereof, made in the manner prescribed by law and filed herein on the day of , , viz.: [stating names, etc.]. [Parties who waive or consent :'\ III. Personally, or by attorney, by duly executed waivers of the issuance and service thereof, containing an approval of the account filed herein and a consent to the entry of a decree approving and settling the same, and filed herein on the day of , , by IV. That no notice of appearance has been filed herein, except by [stating them] . V. That all of the persons named above are of full age and sound mind excepting those hereinbefore stated to be otherwise, and comprise all the parties, as deponent verily believes, who have any interest in this proceeding.! [Jurat.] XXI. Decree Settling Account and Ordering Distribution. [Title.] C. D., the executor [etc.], having heretofore made application to the surrogate of the county of , for a judicial [or, final] settlement of his account as such executor, and a citation having been thereupon issued, pur- suant to statute, directed to all persons interested in the estate of said de- ceased, citing and requiring them and each of them personally, to be and appear before the said surrogate, at his office in , on the day of , , at eleven o'clock in the forenoon of that day, then and there to attend such judicial settlement; and the said citation having been returned, with proof of the due service thereof on [naming the person'] ; and the said executor having appeared on the return day of said citation, in person, and by [give appearances] ; and the said executor having rendered his account, under oath, before the said surrogate, and the said account having been filed, together with the vouchers in support thereof, and no objection having been made to the said account [or, objections to the said account having been filed by J. B. — and recite reference, if any, and referee's report and exception] ; and the said matter having been duly adjourned to this day, the said sur- 1 Where a person cited is an infant, a lunatic, an habitual drunl^ard, or for any cause, men- tally incapable adequately to protect hia rights, it must so appoar in the afSdavit. The age of the infant must also be stated. 1051 FoEMS. xNo. 72. Togate, after having examined the said account and vouchers, now here finds the state and condition of the said account to be as stated and set forth in the following summary statement thereof, made by the said surrogate as finally settled and adjusted by him, to be recorded with and taken to be a part of the decree in this matter, to wit: A summary statement of the account of C. D., executor [etc.], made by the surrogate as finally settled and allowed. The said executor is chargeable as follows: [adapt from, summary as in No. 72,_IX.]. And it appearing that the said [executor] has fully accounted for all the moneys and property of the estate of said deceased, which have come into his hands as such executor, and his account having been adjusted by the said surrogate, and a summary statement of the same having been made as above and herewith recorded, it is hereby Ordeeed, adjudged, and deceeed, that the said account be, and the same is hereby, finally and judicially settled and allowed as filed and adjusted. And it is fuethee oedeeed, adjudged, and deceeed, that out of the balance so found, as above, remaining in the hands of the said executor, he retain the sum of , dollars for the commissions to which he is entitled on this accounting; and that he pay into this court the sum of dollars for the expenses of this accounting. [In case a distribution of the fund is also desired, continue as follows :'[ And it is fuethee oedeeed, that, out of said balance, the said executor invest and keep invested the sum of $30,000, in bonds secured by mortgages of real estate in the city of New York, the income thereof to be paid to C. B., the widow of said testator, during her natural life, pursuant tc the directions and provisions of the said ■n'ill of the said testator; and after the death of the said widow, that the said executor distribute the said principal sum in the manner directed in and by the said last will and testament. And it is fubther oedeeed, that the said executor pay to E. B., a sou of the said testator, the sum of dollars, which, with the sum of $4,600 heretofore received by him, will be in full of his share of the residuary estate of the said testator, distributable upon this accounting [and so on]. [If upon a final accounting, say:] And it is further oedeeed, that upon so doing he be discharged as executor of the last will and testament of A. B., deceased, and freed of and from all responsibility to any person interested in said will on aecoimt of his acts and doings thereunder.l [Signature"] , Surrogate. XXII. Discharge of Representative. Whereas, on the day of , , C. D. was duly appointed the executor of the last will and testament of A. B., late of the county of , deceased, and who departed this life on the day of , , and which said last will and testament was duly admitted to probate by the surrogate of the county of , aforesaid, on the day of , , and by him recorded in his ofiice; and Wheeeas, Since said C. D. was so appointed such executor he has duly settled with and paid to the undersigned, one of the legatees named in said will, his bequest, legacy, and distributive share of the estate of said deceased, and is desirous of being discharged from said trust. Now, theeefore, I, the undersigned E. S., being of full age, in consideration of the aforesaid premises and of the sum of dollars, to me in hand paid by the said C. D., as such executor, as aforesaid, the receipt whereof I do hereby acknowledge, I do hereby forever release and discharge said C. D. as such executor, of and from all claims, demands, and liabilities of every name and nature to me by reason of any and all matters in any way relating to said executorship. And to this end I do hereby request, authorize, and empower the surrogate of said county of , upon filing this instrument in writing, to enter in his book of minutes the proper order or decree, fully, finally, and in all things 1 For various directions as to disposal of assets, see ante, § 1006 et seq. jSTo. 73. FoEMS. 1052 releasing and discharging said C. D. as sucli executor, as aforesaid, of and from all claims, demands, and liability of every name and nature to me by reason of any and all matters in any way relating to said executorship. In Witness Whereof [etc.]. No. 73. [Ante, § 943.] Accounting of Testamentary Trustees. I. Petition. [Title.} To the Surrogate of the county of : The petition of A. B. and C. D., trustees for Y. Z., under the will of M. N., deceased, respectfully shows: I. That under and by virtue of the will of M. N., late of the county of , deceased, duly admitted to probate by the surrogate's court of the county of , the said testator gives to your petitioners, who are [the only two] the executors named in said will, who have qualified as such [here state the bequest in trust, e. g., thusj, all his personal estate, not otherwise eflfectually disposed of, in trust, to divide the same into as many shares of equal value as the said testator had children living at the time of his decease, and to set apart one of such shares for each child, to receive the interest and income of each share, and to apply the same to the use of such child during his or her natural life. And the said testator, by his said will, further gives to your petitioners all his real estate, not otherwise eflfectually disposed of, in trust, to receive the rents, issues', and profits thereof, and apply the same, deducting all just and lawful charges after the decease of the testator's wife, in equal parts, to the use of each of his children, living at his decease, during his or her natural life. II. That testator's wife died on the day of , , and said tes- tator left him surviving three children only, one of whom is Y. Z., who is the only person entitled, either absolutely or contingently, by the terms of the will or by operation of law, to share in the fund or in the proceeds of the property held by your petitioners as a part of their said trust. III. That in the latter part of the year , your petitioners, as executors of, and trustees under, the will of the said M. N., deceased, rendered to the surrogate of the county of , a full account of their proceedings as such executors and trustees, to the day of , , and including all their proceedings, to said date, with respect to both the real and personal estate of said testator, and that a decree of said surrogate's court judicially settling said account, was duly made and entered on the day of , ; and that in and by said decree, your petitioners were directed t to set apart and invest, as trustees for testator's son, the above-named Y. Z., certain assets and securities in said decree mentioned, and amounting in the aggregate to the sum of dollars, and hold the said assets, securities, and cash so set apart, upon the trust contained in and established by the fifth paragraph of said will of the decedent, for the benefit of the said Y. Z., as one of the surviving children of the said decedent. IV. That immediately upon the entering of said decree, your petitioners invested, as trustees for the above-mentioned Y. Z., the assets and securities in said decree mentioned, and have so held the same tt upon the trust for his benefit, as provided for by the above-mentioned provision of the last will and testament of the said M. N., deceased, relative to his personal estate, and have also continued to execute the above-mentioned trust for his benefit in the real estate of the said testator. V. That your petitioners, as trustees of the said trusts, for the said Y. Z., in the real estate of the said testator, as well as in the personalty set apart by said decree, desire to render an account of all their proceedings as such trustees, from the date of the above-mentioned account and decree to and including the day of , VI. That the only person interested in such a proposed accounting of your petitioners is the above-named Y. Z., a resident of the city, county, and State of New York, but at present temporarily absent in Europe. 1053 FoEMs. No. 73. Whekepore, your petitioners pray that their account of their said pro- ceedings, as Buch trustees, may be judicially settled, and that [names'] may be cited to attend such settlement. [Dote.] iSignatv/re.} [Verification.] II. Account of Proceedings. [Title.] We, A. B. and C. D., trustees of Y. Z., under the will of M. N., hereby render the following account of our proceedings, as such trustees, down to the day of , I. By the decree of the surrogate's court of the county of , made and entered on the day of , , in the matter of our final ac- counting as executors of, and trustees under, the will of the said M. N., deceased, we, as such executors, were directed [continue as in previous form from dagger in par. Ill, to the double dagger in par. IV, thence continuing], and the same or so much thereof as are held by us, constitute the capital of the said trust for Y. Z., as is more fully shown in the schedule of assets hereto annexed. II. In addition to the above-mentioned trust, said will further gives all testator's real estate to his qualified executors in trust, to receive rents, issues, and profits thereof, and after death of testator's wife, which occurred in , , to apply the same, after deducting all just and lawful charges, in equal parts, to the use of his children living at his decease, during their respective lives, and of which said children three were living at the time of testator's death, and are now living, one of whom is the above-mentioned Y. Z. And in the above-mentioned accounting, on which the decree of Decem- ber, , was entered, is included a full account of all our proceedings to the said day of December, , relative to said real estate trust for the said Y. Z.; and the following account embraces all our proceedings as trustees, as well of the personalty as of the realty of the above-mentioned trusts for the said Y. Z., from the said day of , , to and including the day of , [Here will follow schedules, for instance, as follows:] Schedules A, hereto annexed, contain a statement of all rents, interest, or other income belonging to the said trust for the benefit of the said Y. Z., received by us, as trustees of the said trust, during the period of time em- braced in this accounting — that is to say : Schedule A, No. 1, contains a statement of all interest or other income from personal estate received or collected by us. Schedule A, Ko. 2, contains a statement of all rents from leasehold premises received or collected by us. Schedule A, No. 3, contains a statement of all other rents received or collected by us. Schedule B, hereto annexed, contains a statement of loss incurred on the sale of certain assets formerly held by us as trustees of the said trust for Y. Z. Schedules C, hereto annexed, contain a statement of all amounts of income expended by us, for the necessary expenses and disbursements, in the man- agement and execution of said trusts for the said Y. Z. — that is to say: Schedule C, No. 1, contains a statement of all charges against the income of the personal estate paid by us. Schedule C, No. 2, contains a statement of all charges against the income from leasehold estate paid by us. Schedule C, No. 3, contains a statement of all charges against the real estate paid by us. Schedule E, hereto annexed, contains a statement of all amounts of prin- cipal paid by us to the said Y. Z., under the power and authority vested in us by the fifth paragraph of testator's will [as well as by virtue of the judg- ment of the supreme court of the State of New York, entered on the day of , , on remittitur from the court of appeals of the State of New York, in an action in which the said Y. Z. and others were plaintiffs. N'o. 74. FoEMS. 1054 and we, as executors of, and trustees under, the will of A. B., deceased, and others were defendants]. Schedule F, hereto annexed, contains a statement of all amounts of income paid by us to the said Y. Z., on account of the income of the trusts held for his benefit. Schedule G, hereto annexed, contains a statement of the various assets now constituting the capital or principal of the personalty of the said trust for Y. Z., as well as the amount of the present capital of said trust. It also contains a brief description of the parcels of real estate held for his benefit, under and by virtue of the above-mentioned trust. As to the income of the said trust for Y. Z. We, as such trustees, charge ourselves as follows: With amount of income, personal estate, Schedule A, No. 1 . . . . $ " " " rents, leasehold premises, Sch. A, No. 2. " " " rents. Schedule A, No. 3 We credit ourselves as follows: With charges against income, personal estate. Schedule C, No. 1 . , $ " " " leasehold premises, Sch. C, No. 2 . . " " real estate. Schedule C, No. 3 " payments on account of income $ Leaving a balance of $ which is distributable, after the deduction of the amount of our commissions for receiving and paying out said infjome and expenses of this accounting. The said several schedules hereto annexed, and signed by us, form, and are to be taken as, a part of this aecoimt. [Date.J [Signatures ofl, Trustees. [Decree thereon may readily ie adapted from No. 72, XXI.] No. 74. [Ante, § 1019.] Appointment of Guardian of Infant Over Fourteen. I. Petition iy Infant. To the Surrogate's Court of the county of : The petition of A. B., of , respectfully shows: I. That your petitioner is a resident of the county of , and is a minor over fourteen years of age, and was sixteen years of age on the day of , last past. That your petitioner is entitled to certain property and estate, to wit: [specify it briefly and state value:'] and that to protect and preserve the legal rights of your petitioner, it is necessary that some proper person should be duly appointed the guardian of his person [or, prop- erty — or, person and property] during his minority. II. That such a general guardian has not been duly appointed, either by a court of competent jurisdiction of this State, or by the will or deed of the father or mother of your petitioner, admitted to probate or authenticated and recorded as prescribed by law. [Or, that G. G., of , was appointed general guardian of your petitioner by — state manner of appointment, as above, — and — died on the day of , , — or, became incompetent — or, disqualified — by reason of the following facts — stating them, — or, re- fuses to act — or, was removed by the court of , on the day of , , — or, his term of office expired on the day of , .] [If the petitioner is a married woman, add:'] That your petitioner is a married woman, being the wife of , who resides at , in the State of . If a nonresident, and the petition relates to personal property only, add: That the only property of your petitioner, within this State, is the personal property above described, which, as your petitioner is informed 1055 FoEMs. No. 74. and advised by her counsel , of , is not subject, by the law of hei residence, to the control or disposition of her said husband. That the law of said State — here plead the statute or rule of law, setting it forth at length.'] III. [State whether father or mother of petitioner is living, e. g., thus: That the father of your petitioner died on the day of , , and E. B., the mother of your petitioner, is living and resides at , in the county of ; that the appointment of a person other than petitioner's said mother as such general guardian, is expedient by reason of the following circumstances — stating them, — and your petitioner prays that the said E. B., the mother of your petitioner, and said G. G. and , your petitioner's husband, may be cited to show cause why the decree prayed for herein should not be made.] IV. That the only relatives of your petitioner, residing within the county of [surrogate's county'] are [stating names — or, if there are none such, state names and addresses of other nearest relatives.^ Wherefobe, your petitioner prays that , of , [merchant,] may be appointed the general guardian of your petitioner's person and property [_or state either separately}, and that a citation may be issued requiring [names'] to show cause why a decree to that effect should not be made, and for such other relief as may be proper. [Date.] [Signature.] ['Verification.'] [Annex affidavit of third person, as follows:'} M. N., being duly sworn, says, that he is acquainted with the property and estate of the above-named infant, and that the same consists of [real and] personal estate; and that the personal estate of said infant does not exceed the sum of dollars, or thereabouts; and that the annual rents of the real estate of the said infant do not exceed the sum of dollars, or there- abouts. [Indorse on petition, the following consent:} I, C. C, above named, do hereby consent to be appointed the guardian of the person and estate of the above-named infant during his minority. [Signature.] II. Consent of Parent to Appointment of Third Person. I, the undersigned, father [or, mother] of the minor above named, do hereby consent and pray that C. D. be appointed the general guardian of the person and estate of said minor. [Date.] [Signature.] [Achnowledgment as of a deed.} III. Oath of Guardian. [Venue.] I, C. D., do solemnly swear and declare, that I reside at No. , , in the , and am over the age of twenty-one years, and that I will well, faithfully, and honestly discharge the duties of guardian of the persons and estate of [naming them,] infants according to law. [Jurat.] [Signature.] IV. Decree Appointing General Guardian. [Title.] On reading and iiling the petition of A. B., an infant over the age of four- teen years, residing in the county of , duly verified on the day of , , praying the appointment of , as general guardian of his person [or, property — or, person and property] : and a citation having been duly issued directing [names], the parties entitled to notice of this application, to show cause why a decree should not be made as prayed in said petition, and the same being now here returnable; and the surrogate, having duly inquired into the circumstances, and heard the allegations and ISTo. 74. FoEMs. 1056 proofs of the parties and of , and being satisfied that the allegations of the petition are true in fact, and that the interests of the infant will be promoted by the appointment of a general guardian of his person [or, property — or, person and property] ; and on reading and filing the bond executed by said to said infant, with suSicient sureties approved by said surrogate. It is ordeked and decreed, that said be, and he is hereby, appointed the general guardian of the person [or, property — or, person and property] of said infant, M. N., and that letters of guardianship issue accordingly. V. Bond of General Guardian of Infant's Property. Know all men by these presents. That we, C. D., of No. , street, in the city of New York, and E. r., of No. , street, in said city, and 6. H., of No. , street, in said city, are held and firmly bound unto A. B., of the city of New York, an infant under [or, over] fourteen years of age, in the sum of [four] thou- sand dollars, lawful money of the United States, to be paid to the said infant, his executors, administrators, or assigns; to which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors, and adminis- trators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , Whereas, by an order of the surrogate's court of the county of [New York] , made the day of , the above-bounden C. D. was appointed general guardian of the property of the above-named A. B., an infant [etc.] upon executing a bond to the said A. B., with the said C. D. and E. F. as his sureties, in the penalty and on the conditions therein mentioned. Now, therefore, the condition of this obligation is such, that if the above-bounden C. D. shall in all things faithfully discharge the trust reposed in him,* as guardian of the property of the said infant, and obey all lawful directions of the surrogate of the county of , touching the trust, and shall, in all respects, render a just and true account of all money and other property received by him, and of the application thereof and of his guardian- ship, whenever he is required so to do, by a court of competent jurisdiction,* then this obligation to be void, else to remain in full force and virtue. [Bignatii/res and seals.'] [Sealed and delivered in the presence of] [Affidavit of sufficiency as in No. 45.] VI. Bond of General Guardian of Infant's Person. [Same as in preceding form substituting person for property, and for matter between the asterisks the following:} as guardian of the person of the said infant, and shall duly account for all money and other property which may come to his hands, as directed by the surrogate's court of the countv of VII. Letters of Guardianship. The People or the State of New York, To A. B., send greeting: Whereas, an application, in due form of law, has been made to our sur- rogate of the county of New York, to have said A. B. appointed the guardian of G. G. C, a minor over fourteen years of age. And Whereas, said A. B. has agreed and consented to become such guardian, and has duly executed and delivered a bond pursuant to law, for the faithful discharge of his duty as such guardian, and we, being satisfied of the sufficiency of said bond, and that said A. B. is a, good and reputable person, and is in every respect competent to have the custody of the person and estate of said minor, do by these presents allow, constitute, and appoint you, the said A. B., the general guardian of the person and estate of said minor, during his minority, hereby requiring you, the said guardian, to safely keep the real and personal estate of said minor which shall hereafter come to your custody, and not suffer any waste, sale, or destruction of the 1057 • Forms. Nos. 75, 76. same, but to keep up and sustain his lands, tenements, and hereditaments, by and with the rents, issues, and proiits thereof, or with such other moneys belonging to him as shall come to your possession, and to deliver the same to him when he becomes of full age, or to such other guardian as may be hereafter appointed, in as good order and condition as you receive the same, and 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 cognizance thereof, when thereunto required. In Testimony Whbeeof, we have caused the seal of office of the surrogate's court of the county of New York to be hereunto affixed. Witness, Hon. , surrogate of said county, at the city of New York, the day of , in the year of our Lord, one thousand nine hundred and [Signature,] Clerk of the Surrogate's Court. No. 75. [Ante, § 1017.] Appointment of Temporary Guardian of Infant Under Fourteen. To the Surrogate's Court of the county of : The petition of A. B. respectfully shows: I. That your petitioner resides at , in the county of , and is the [state relationship] of M. N., an infant under fourteen years of age, who resides at No. , street, in the of , and was years of age on the day of , last past; that said infant is the owner of property, now situated at , in the county of , to wit: [specify it briefly, and state value of rents and profits of real property']. [Continue as in No. 74, substituting " said infant " for " your petitioner," nnd " temporary " for " general " guardian, concluding thus :] Whekepoee, your petitioner prays that some suitable person, to be nominated by the sur- rogate, may be appointed guardian of the person [or, property — or, person and property] of said infant, to serve until said infant attains the age of fourteen years, and a successor to said guardian is appointed and has quali- fied; and that a citation may be issued to [names] to show cause why a decree should not be made appointing such a, guardian. [Date.] [^Signatu/re.] [Add affidavit and consent of proposed guardian, as in No. 74, I.] [The decree for appointment of temporary guardian can be adapted from No. 74, IV.] [For letters of guardianship on the foregoing petition, see No. 74, VII.] No. 76. [Ante, § 1061.] Application for Letters of Testamentary Guardianship.^ I. Consent of Guardian to Act. [Title and Venue.] To the Surrogate's Court of the county of New York: Whereas, by and under the last will and testament of C. D., deceased, which said last will and testament was duly admitted to probate on the day of , , I am named as testamentary guardian of the person and estate of E. G., a minor child of said deceased; Now I, A. B., of the city of New York, do hereby accept the appointment of such testamentary guardian, and do consent to act as such, during the mi- nority of said E. G., the minor aforesaid, and pray that letters of testamentary guardianship may issue to me in pursuance of said appointment. [Date.] [Signature.] 1 See Laws 1893, ch. 175. 67 jSTo. 77. EoKMs., 1058 II. Oath. [Venue.'i I, A. B., the testamentary guardian, named in the la,st will and testament of C. D., late of the city of New York, deceased, do depose and say, that I am a resident of the city of New York, State of New York; that I am over twenty- one years of age, and that I will faithfully and honestly discharge the duties of testamentary guardian of E. Gt., the minor child of said deceased. IJurat.'] [SignatiM'e.} III. Letters of Testamentary Guardianship. The People of the State of New York, To A. B., of the city of New York, the testamentary guardian named in the last will and testament of L. R., deceased, for E. G., a minor child of said deceased, send greeting: Whereas, the last will and testament of said L. R., deceased, was duly admitted to probate by the surrogate of the county of New York, on the day of , , in and by which said A. B. is named as the testamentary guardian of E. G., the said minor. And Whereas, said A. B. has agreed and consented to become such guardian and has duly taken an oath, according to law, that he will well and faithfully discharge his duty as such testamentary guardian, and we being satisfied that said A. B. is a good and reputable person, and is in every respect competent to have the custody of the person and estate of said minor, do by these presents allow, constitute, and appoint you, the said A. B., the testamentary guardian of the person and estate of said minor, during her minority, hereby requiring you, the said guardian, to safely keep the real and personal estate of said minor, which shall hereafter come to your custody, and not suffer any waste, sale, or destruction of the same, but to keep up and sustain her lands, tene- ments, and hereditaments, by and with the rents, issues, and profits thereof, or with such other moneys belonging to her as shall come to your possession, and to deliver the same to her when she becomes of full age, or to such other guard- ian as may be hereafter appointed, in as good order and condition as you receive the same, and also to render a just and true account of all moneys and property secured by you, and the application thereof, and of your guardian- ship in all respects, to any court having cognizance thereof when thereunto required. In Testimony Whereof we have caused the seal of office of the surrogate's court of the county of New York to be hereunto affixed. Witness, Hon. , surrogate of said coimty, at the city of New York, the day of , in the year of our Lord, one thousand nine hundred and [Signature], Clerk of the Surrogate's Court. No. 77. [Ante, § 1051.] Ancillary Letters of Guardianship. I. The Petition. To the Surrogate's Court of the county of : The petition of A. B. respectfully shows: I. That your petitioner resides at , in the State of ; and, on the day of , , was duly appointed the general guardian of the property of M. N., an infant, who was years of age on the day of , last, and who then was, and still is, residing at , in said State of , by the court of , a court of competent jurisdiction within the State where said ward resides. That hereto annexed are duly-authenti- cated exemplified copies of the records and other papers showing that your petitioner has been so appointed, and has given the security, as hereinafter alleged. 1059 Forms. jS^'o. 77. II. That your petitioner has duly given security in said State, as required by law, in the sum of dollars, which is at least twice the value of the personal property, and of the rents and profits of the real property, of said ward. III. That said infant M. N. is entitled to property within the county of , and State of New York, to wit: [specify it and state value]. [Or, is entitled to maintain an action in the courts of the State of New York against one Y. Z., who resides at , in the State of , for the following cause of action — recite briefly the facts constituting the cause of action, and show- ing jurisdiction of New York courts]. IV. That no debts are due from said ward's estate to residents of the State of New York [except as follows — specify amount of debts, and name and resi- dence of creditor]. Wherefore, your petitioner prays that ancillary letters of guardianship of the property of said infant M. N. may be granted to your petitioner accordingly. [Date.} [Signature.] [Verification.] II. Decree Granting Ancillary Letters. [Title.] On reading and filing the petition of A. B., duly verified on the day of , , by which it appears that the petitioner was duly appointed the general guardian of the property of M. N., an infant, residing at , in the State of ) by a decree or order duly given or made on the day of , , by the court of , a court of competent jurisdiction within the State where said ward resides, to which petition are annexed exemplified copies of the records and other papers showing such appointment and dulj'' authenticated; and that said A. B. has there given the security required by the statutes of this State in such a ease [and a citation having been duly is- sued thereupon to — names — , directing them to show cause why the prayer of the petition should not be granted, and having been duly returned and filed with proof of due service thereof] : [And it appearing, upon due inquiry, that all the debts due or to become due from said ward's estate to residents of the State of New York have been fully paid : ] And the said surrogate being satisfied that all the facts alleged in said peti- tion are true, and that the case is within section 2838 of the Code of Civil Pro- cedure, and that it will be for the said ward's interest that ancillary letters of guardianship issue to the petitioner : Now, on motion of A. T., attorney for petitioner, It is obdered and decreed, that the exemplified copies of the foreign letters of guardianship, annexed to said petition, be recorded in the office of said sur- rogate ; and that ancillary letters of guardianship be granted to the petitioner accordingly. III. Ancillary Letters of Guardianship. The People of the State op New York, To A. B., send greeting: Whereas, A. B., who has been duly appointed the general guardian of the property of M. N., a minor, by a court of competent jurisdiction within the State of , where the said minor resides, has presented to the surrogate's court of the county of New York a, petition for his appointment as ancillary guardian of said minor; And Whereas, our surrogate has, on the day of , , made a decree granting such petition, and directing that such ancillary letters of guardianship issue to the petitioner. We, in pursuance of said decree, do by these presents issue these letters, constituting and appointing you, the said A. B., the ancillary guardian of said minor, until another guardian shall be appointed, hereby requiring you, the said guardian, to safely keep the real and personal estate of said minor which shall hereafter come to your custody, and not suffer any waste, sale, or de- ISTo. 78. FoEMs. 1060 struetion of the same, but to keep up and sustain his lands, tenements, and hereditaments, by and with the rents, issues, and profits thereof, or with such other moneys belonging to him as shall come to your possession, and to deliver the same to him when he becomes of full age, or to such other guardian as may be hereafter appointed, in as good order and condition as you received the same, and also to render a just and true account of all moneys and property received by you, and the application thereof, and of your guardianship in all respects, to any court having cognizance thereof, when thereunto required. In Testimony Whereof, we have caused the seal of office of the surrogate's court of the county of New York to be hereunto affixed. Witness, Hon. , surrogate of our said county, at the city of New York, the • day of , in the year of our Lord, one thousand nine hundred and ISignature], Clerk to the Surrogate's Court. No. 78. lAnte, § 1030.] Annual Inventory and Account of Quardian. I. Order to File Inventory, etc. [Title.'] On reading and filing the report of X. Y., [the guardian accounting clerk in said surrogate's oflice], whereby it appears that A. B., the general guardian of M. N., infant, has failed to render the annual inventory and account re- quired by law. Ordered, that said A. B., the general guardian, aforesaid, file with the guardian accounting clerk of this court his annual inventory ami account as prescribed by sections 2842, 2843, and 2845 of the Code of Civil Procedure. II. Affidavit of Failure to File Inventory. ITitle and Venue.'] X. Y., being duly sworn, saj's that he is a clerk in the office of the surrogate of the city and county of New York, specially appointed and designated by the surrogate of said city and county to make the examination provided for by section 2844 of the Code of Civil Procedure as to the accounts and inven- tories of guardians required to be filed in the month of January, , pur- suant to section 2842 of said Code, and that he duly took and filed the oath prescribed by section 2844, and duly made and filed with said surrogate a cer- tificate and report of the examination made by him pursuant to said appoint- ment and designation. That A. B. was, on the day of , , duly appointed guardian of the property of M. N., an infant, by letters of guardianship duly issued from said court. That deponent in the course of said examination has made examination and inquiry respecting the filing by said guardian of the annual account or in- ventory required by said section 2842 to be filed in the month of January, , and finds and states, and he has so certified and stated in the aforesaid certifi- cate and report, that said guardian has never filed such account or inventory. That on the day of , , an order was made by the said surro- gate requiring the said guardian to file said account or inventory, and the said order was served on the said guardian on the day of , , and he has failed to comply with the same, and deponent has made and filed with the said surrogate a certificate to this effect. IJurat.'] [Signature.'] III. Order upon Foregoing Affidavit. [Title.] It appearing from an examination duly made under my direction pursuant to section 2844 of the Code of Civil Procedure, as to the filing of their annual accounts and inventories in the month of January, , by guardians of the estates of their wards, theretofore appointed by said court, that the said A. B., the guardian of the property of M. N., an infant, has failed and omitted to 1061 FoKMS. No. 79. file the annual aecount or inventory required to be filed in the month of Janu- ary, , and an order having been made on the day of , requiring said guardian to file such an account and inventory, and it appearing that said order was served upon the said guardian on the day of , and that he has failed to comply with the same; It is obdebed, that 0. P. be and he is hereby appointed the special guardian of the said M. N., infant, for the purpose of filing a petition in his behalf for the removal of his said guardian and prosecuting the necessary proceedings for the purpose. IV. Annual Inventory and Account. [Title.l I, A. B., of , the general guardian of M. N., infant, do make, render, and file the following inventory and account: On the day of , , I was duly appointed the general guardian of M. N., an infant, by the surrogate of the county of Schedule A, hereto annexed (as part of said inventory), contains a full and true statement and description of each article or item of personal property of said M. N., received by me since , the date of my appointment [or, last account], and of the value of each article or item so received. Schedule B, hereto annexed (as part of said inventory), contains a full and true statement and list of the articles or items of said property now remaining in my hands. Schedule C, hereto annexed ( as part of said inventory ) , contains a full and true statement and list of the articles or items of said property now remaining, in my hands. Schedule D, hereto annexed ( as part of said inventory ) , contains a full and true statement of the amount and nature of each investment of money made by me, and of the manner in which the fund is at present invested Said Schedules A, B, C, and D constitute said inventory, and are respect- ively signed by me. Schedule E, hereto annexed, and signed by me, is a full and true account, in form of debtor and creditor, of all my receipts and disbursements of money, since , the date of [a« aiovel, and distinctly states the amount of the bal- ance remaining in my hands, to be charged to me in the next year's account, as the sum of dollars; all of which is respectfully submitted. [Date.'i iSignature.'] [Verification as follows :'\ I, A. B., being duly sworn, say, that I am the gen- eral guardian of M. N., an infant; that the foregoing inventory and account contain, to the best of my knowledge and belief, a full and true statement of all my receipts and disbursements on account of my ward; and of all moneys and other personal property of my ward which have come to my hands, or have been received by any other person by my order or authority, or for my use, since , , and of the value of all such property; together with a full and true statement and accoimt of the manner in which I have disposed of the same, and of all the property remaining in my hands at the present time; and a full and true description of the amount and nature of each investment made by me since ; and that I do not know of any error or omission in the inventory or account to the prejudice of my ward. [Jurat.l iSigrwiture.l No. 79. [Ante, § 1033.] Accounting of General Guardian. I. Petition for Voluntary Accounting. [Title.] To the Surrogate's Court of the city and county of New York: The petition of A. B., residing at No. , street, in the city of New- York, respectfully showeth that letters of guardianship upon the estate of M. N., infant over [or, under] the age of fourteen years, were granted to your '^0. 79. FoEMS. 1062 petitioner on the day of , , by this court; that said infant resides at No. , street, in said city of New York. That the sureties in the ofiicial bond of your petitioner as such guardian are the following persons [giving names and residences'^. That said infant, on the day of , , attained the age of years. And your petitioner is desirous of rendering an account of all his pro- ceedings as such general guardian to the surrogate's court of this city and county, and of having the same judicially settled and of being discharged from his duties and liabilities. And for that purpose prays that a citation may be issued to the above-named person to attend such settlement. IDate.'i ISignature.] [ Verification.'] II. Petition hy Ward for Order to Account. To the Surrogate's Court of the county of : The petition of M. N., of the town of , in the county of , re- spectfully shows that letters of general [or otherwise] guardianship of the property and estate of your petitioner, an infant under [or, over] the age of fourteen years were granted to A. B., of the town of , in the coxmty of , on the day of , . That your petitioner, on the •day of , , attained the age of twenty-one years, and that his said guardian has rendered no account of his proceedings as such. Your petitioner desires said A. B. to render an account of all his proceed- ings as such guardian, and for that purpose prays that a citation issue to Iiim requiring him to appear in this court at a certain day to be therein spe- cified, and render an account of his proceedings as such guardian, and that such other and further proceedings may be had thereon as shall be just and equitable. [Date.^ [Verification.'] III. Account of Proceedings {Title.] To the Surrogate's Court of the city and county of New York: I, A. B., residing at No. , street, in the city of New York, do hereby render the following account of my proceedings as general guardian of M. N., infant: On the day of , , letters of guardianship on the estate of said infant were granted to me by this court. On the day of , , I caused to be filed in the office of the surrogate of this county a true and full inventory and account of each article or item of personal property belonging to said infant, pursuant to sections 2842 and 2843 of the Code of Civil Procedure ; and annually thereafter, to wit : on the [speci- fying the dates on which the guardian had previously filed his annual inven- tory], I caused to be filed in the office of said surrogate annual inventories and accounts of the personal property of said infant, as prescribed by the sections of the Code of Civil Procedure above specified; the last of which said inven- tories and accounts was so filed on the day of , , and the value of the personal property of said infant then remaining in my hands amounted to the sum of dollars. ScHEDtTLB A, hereto annexed, contains a statement of all property belong- ing to my ward, which came into my hands upon assuming the office of gen- eral guardian. Schedule B, hereto annexed, contains a statement of all property which has come into my hands since said day of , , together with a statement of all the debts due said ward, collected by me, and also of all moneys and interest received by me for which I am legally accountable. Schedule C, hereto annexed, contains a, statement of all property of said ward now remaining in my hands, and a full and true description of the amount and nature of each investment made by me since my appointment. Schedule D, hereto annexed, contains a statement of all property charged in schedules A and B, not now remaining in my hands, together with a state- ment of the manner and purposes of its disposal. 1063 Forms. No. Y9. Schedule E, hereto annexed, contains a statement in form of debit and credit of all moneys received and disbursed by me on account of said ward, since the said day of , , and distinctly states the balance now remaining in my hands. Schedule F, hereto annexed, contains the name, age, and place of residence of the ward for whom I have acted as general guardian. Schedule G, hereto annexed, contains a statement of all other facts affect- ing my administration as such general guardian. I charge myself as follows: With amount of property, as per Schedule A $ " " increase, " " B Total $ I credit myself as follows: With amount as per Schedule D $ " " of disbursements, as per Schedule E Total $ Leaving a balance of dollars to be distributed to said ward, subject to the amount of my commissions and the expenses of this accounting. The said schedules, which are severally signed by me, are a part of this account. [Signature}, General Guardian of , infant. IV. Oath to Account. [Tenue."] I, A. B., the general guardian of M. N., infant, being duly sworn, do depose and say, that the foregoing account and schedules contain, to the best of my knowledge and belief, a full and true statement of all my receipts and disburse- ments on account of said ward; and of all moneys and other personal property of the said ward, which have come to my hands or have been received by any other person by my order or authority, or for my use, since my appointment; and of the value of all such property, together with a full and true statement and account of the manner in which I have disposed of the same, and of all the property remaining in my hands at the present time, and a full and true de- scription of the amount and nature of each investment made by me since my appointment; and I do not know of any error or omission in the foregoing account and schedules to the prejudice of said ward. [Jurat.'] [Signaturel, General Guardian. V. Decree Settling Guardian's Account. [Title. '\ A. B., general guardian of M. N., infant, having heretofore made application to the surrogate of the city and county of New York, for a judicial settlement of his account as such general guardian, and a citation having been thereupon issued, pursuant to statute, directed to said M. N., citing and requiring him personally to be and appear before the said surrogate, at his office in the city of New York, on the day of , , last past, at ten o'clock in the forenoon of that day, then and there to attend such judicial settlement, and the said citation having been returned with proof of the due service thereof on said M. N., and the said general guardian having appeared on the return day of said citation, by G. H., his attorney [name other appearances, if any], and the said general guardian having rendered his account under oath, before the said surrogate; and the said account having been filed, together with the vouchers in support thereof, and [recite the filing of ohjections and reference, if any"], and the same matter having been duly adjourned to this day, the said surrogate, after having examined the said account and vouchers, now here finds the state and condition of the said account to be as stated and set forth in the m. 80. EoEMs. 1064 following summary statement thereof, made by the said surrogate as settled and adjusted by him, to be recorded with and taken to be a part of the decree in this matter, to wit: A summary statement of the account of proceedings of A. B., general guard- ian of M. N., infant, made by the surrogate as judicially settled and allowed. The said general guardian, A. B., is chargeable as follows: [give summary as in account of proceedings] . And it appearing that the said general guardian has fully accounted for all the moneys and property of the estate of said infant, which have come into his hands as such general guardian, and his account having been adjusted by the said surrogate, and a summary statement of the same having been made as above and herewith recorded, It is hereby obdebed, adjudged, and decreed, that the said account be and the same is hereby judicially settled and allowed as filed and adjusted. And it is fubtheb obdebed, adjudged, and decbeed, that [add, if desired, clauses as to payments to infant on attaining majority, and as to a final dis- charge of the guardian}. VI. Discharge of Guardian ty Ward, after Reaching Majority. [Title.'] I, M. N., of the county of , New York, do hereby declare and state the fact to be that I became of the full age of twenty-one years on the day of , . And further that since I so became of full age my general guardian, A. B., who was so appointed by the surrogate of said county of , on the day of , , has had an accounting and settlement with me of and concerning all matters in any way relating to my said guard- ianship, and that on such settlement said A. B. did pay to me the sum of dollars, and which sum of money I did and do now receive in full of all claims and demands of every name and nature against said A. B., as my said general guardian, and to the end that said A. B. may be in all things fully and finally discharged from said trust and from all liability to me by reason of such guardianship; I do hereby request, authorize, and empower the surrogate of said county of , upon filing this instrument to enter the proper order or decree fully, finally, and in all things releasing and discharg- ing said A. B. of and from all claims, demands, and liability to me by reason of any and all matters in any way relating to my guardianship. In Witness Whereof [etc.]. [Acknowledgment.'] No. 80. lAnte, § 1045.] Revocation of Letters of Guardianship. I. Petition. [Title.'] To the Surrogate's Court of the county of : The petition of R. M., an infant, respectfully shows: I. That your petitioner is an infant under [or, over] the age of fourteen years [or, state relationship to infant — or, that petitioner is a surety of guardian] . II. That on the day of , , one M. G., of W., in the county of S., was, by a decree of this court, appointed general [or, temporary] guardian of the personal property [or either] of your petitioner [or, said in- fant], and letters of guardianship were thereafter issued to said M. G. by this court. III. [Set forth ground of removal, e. g., thus:] That said guardian has re- moved from the State of New York, and now resides at , in the State of 1065 FoEMS. IS^. 81. Wherefoee, your petitioner prays the decree of this court revoking said letters of guardianship; and that said guardian may be cited to show cause why such a decree should not be made. [Date.] {Signature.'] [Verification.'] II. Citation. [Adapt from above petition and No. 5.] III. Order Removing Guardian. [Title.] On reading and filing the citation heretofore issued in this matter, return- able this day, with proof of the due service thereof on M. G., the guardian of the above-named minor; and the said M. G. [not] having appeared, and the surrogate being satisfied, after hearing proofs and allegations of the parties, as to the truth of the matters stated in the petition of A. B. in this proceeding, it is Ordered and decreed, that the said M. G. be removed from the ofiiee of guardian of the person and estate of said minor, and that his appointment heretofore made be revoked. [Signature], Surrogate. No. 8i. {Ante, § 1042.] Resignation of Guardian. I. Petition. [Title.] To the Surrogate of the county of : The petition of M. G., of the town of W., county of S., respectfully shows: That heretofore your petitioner was, on the day of , , duly appointed by the surrogate of said county the guardian of person and estate of R. M., a minor, and has, as your petitioner verily believes, conducted her- self honestly in the execution of her trust. That A. 6. M. and E. R. M. are the next of kin of said minor, residing in this county, above the age of fourteen years ; and that 0. B. and D. R. are the sureties in the official bond of your petitioner. That your petitioner is desirous of resigning her trust as such guardian, and that her letters be revoked, for the reason that she has removed from this State [or, is about to remove — or other cause], and she prays that she may be permitted to render an account of her proceedings as such guardian, and that the same be judicially settled, to the end that a successor may be ap- pointed, and that your petitioner may be relieved therefrom. [Date.] [Signature.] [Verification.'] II. Citation. [Adapt from No. 5.] III. Order for Delivery of Assets to Surrogate. [Title.] It appearing to the satisfaction of the surrogate, that M. G., guardian of the above-named minor, has, in all respects, conducted herself honestly in the execution of her trust; that she has rendered a full, just, and true account of her proceedings as such, and that the interests of the said minor would not be prejudiced by allowing the guardian to resign her trust, it is Ordered, that said M. G., who has accounted, deliver over all the books, papers, money, choses in action, or other property of said minor, appearing in her hands by her said account to the surrogate, and that she take duplicate receipts for the same. [Signature], Surrogate. ISQ. 82. FoEMs. 1066 IV. Decree Revoking Letters. [Title.] M. G., guardian of tha above-named minor, having heretofore petitioned this court to be allowed to resign her trust, and the said minor having been cited, and also the sureties in the official bond of the petitioner, and such further proceedings having been had that the said M. G. rendered her account as such guardian, and the said M. G. having, in accordance with the order of this court, delivered over to the said surrogate, all the books, papers, moneys, choses in action, or other property of said minor, and having filed in this court one of the receipts taken therefor, it is Obdeeed and decreed, that the said M. G., on her own application, has been and is permitted to resign her trust as guardian of the said minor, and she is discharged from any further custody or care of said minor, or of his estate, and the letters issued to said guardian be and the same are hereby revoked. [May provide for a successor, us thus:] And it is fubthee oedered, that L. R., of , be and he is hereby appointed the successor of the said M. G., as guardian of the said R. M., upon his taking the oath and giving the bond required by law, and that upon so doing letters of guardianship issue to him as such guardian. No. 82. [Ante, § 1093.] Enforcement of Orders and Decrees by Attachment. I. The Attachment. The People op the State of New York, to the Sheriff of the county of , greeting : We command you, that you attach W. B., the administrator [etc.] of M. B., deceased, if he shall be found in your bailiwick, and bring him personally be- fore our surrogate of the county of , at the surrogate's office of the county of , on the day of , , to answer unto us for cer- tain trespasses and contempts against us in not complying with the exigency of a citation heretofore duly issued by our surrogate of the county of , directed to him, requiring him to appear before said surrogate on a certain day, now past, and render an account of his proceedings as such administrator as aforesaid, or show cause why an attachment should not be issued against him, and duly and personally served on the said W. B. 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. Letters of administration [etc.] of said M. B., deceased, having been heretofore, in due form of law, granted and is- sued by our said surrogate to the said W. B. And you are to make and return to our said surrogate, in the surrogate's court of the county of , on the day of , , at the surrogate's office in aforesaid, a certifi- cate under your hand, of the manner in which you shall have executed this writ; and ha\e you then and there this writ. In Testimony Whbeeop, we have caused the seal of office of our said surro- gate to be hereunto affixed. [l. s.] Witness [etc.]. [Signature of surrogate.] [Indorsement:] Let the administrator within named give a bond for his appearance to answer on the retiu'n day of the within writ, in the penalty of dollars, with two sufficient sureties. [Signature of surrogate.] II. Order Directing Interrogatories. [Title: Matter of Accounting, etc.] It appearing to the court that W. B., the administrator [etc.], being in contempt for not appearing, personally or otherwise, and rendering an account of his proceedings as such administrator, pursuant to a citation for that pur- 1067 FoEJts. N"o. 82. pose duly issued and served upon him, a writ of attachment liad issued against him, directed to the sheriff of county, returnable this day, whereupon the sheriff returned that he had attached the said W. B., and had let him at large on bail, according to a bond returned with such attachment [or, taken his body, and that, for want of bail, he had him in custody before the court] ; and he denying that he is guilty of the misconduct alleged against him; It is ordered, that interrogatories specifying the facts and circumstances alleged against the said W. B. be forthwith filed in this office, and that a copy thereof be served on the said W. B.; and that he put in, immediately after the service upon him of such copj', 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 W. B. in his custody until the further order of this court. III. Interrogatories, intle.'i iNTERROfiATOEiES to be exhibited for the examination of W. B., the admin- istrator [etc.], pursuant to an order made in this matter on the day of , ; First Interrogatory, Were you, or were you not, on or about the day of , last, or at any other and what time, 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 render an account of your proceedings as administrator [etc.] of M. B., deceased? When and by whom was such service made? Answer this interrogatory fully and particularly. Second Interrogatory. Is not the citation now shown and read to you' the ono served, and the copy whereof was so left with you? Answer fuUj. Third Interrogatory. Did you, or not, personally or otherwise, appear or I'ender your account as such administrator or otherwise, pursuant to the exi- gencj- of said citation? Did you, on that day, show cause why an attachment should not be issued against you? Answer fully. [Signature of ■surrogate.'\ IV. Ansivers to Interrogatories. [Title.'i Answers to the interrogatories exhibited and filed in the above matter, under the oath of W. B., the administrator aforesaid. To the first interrogatory he, answering, says: I was, on or about the day of , last, duly served with such a, citation as is referred to in this iriterrogatory. A copy of the citation was left with me. The service was made by H. S. To the second interrogatory he, answering, says : It is the same citation and of which a copy was left with me. To the third interrogatory he, answering, says: I did not, personally or otherwise, appear or render any account as such administrator, or otherwise, pursuant to the exigency of the said citation. I did not, on that day, show cause why an attachment should not issue against me. [<7«rot.] [Signature.'i V. Commitment. [Title.1 A writ of attachment having been heretofore issued, out of and under the peal of this court, against W. B., the administrator [etc.] of M. B., deceased, for his contempt in not appearing and rendering an account as such admin- i.strator as duly cited and ordered to do, directed to the sheriff of county, and return.able the day of , instant, and the said sheriff having returned that he had .attach.ed said W. B., and taken his body, and that, for want of bail, he had him in custody before the court [or, and had let him at large on liail, according to a bond returned with such attachment] ; and the said W. B. having been, by virtue of such attachment, personally before ISTo. 83. FoEMS. 1068 the court, on this do,y,, and denying the alleged contempt, it was thereupon ordered that interrogatories specifying the facts and circumstances alleged against the said W. B. should be forthwith filed in this oflace, and that a copy thereof should be served on him, and that the said W. B. should put in writ- ten answers to such interrogatories, upon oath, immediately after the service of such interrogatories upon him, and file the same in his office. And it now appearing, from said interrogatories and answers thereto, and proofs in this matter, that the said W. B. has committed the contempt with which he is charged, and this court now adjudging him to have been guilty of the mis- conduct alleged, and that such misconduct was calculated to, or did, actually defeat, impair, impede, or prejudice the rights of the legatees under the will in this matter. Ix IS ORDERED, that a fine of $25 be, and the same is hereby, imposed upon the said W. B. for his said misconduct. And it is further ordered, that the said W. B. do pay the charges and fees for serving the citation in this matter, amounting to $10, and also pay to the sheriff' of the coimty of his legal charges and fees for executing said warrant of attachment. And it is further ordered, that the said W. B. be, and he is hereby, di- rected to stand committed to the common jail of the county of , there to remain charged upon this contempt, until he shall have rendered an ac- count of his proceeding as such administrator [etc.J of said M. B., deceased, and paid such fine, charges, and costs; unless the court shall see fit sooner to discharge him. And that a warrant issue for that purpose. [Signature of surrogate.] No. 83. [Ante, § 1094.] I. Order to Pay Money. [Title.] On reading and filing the order to show cause herein, dated , , and the affidavits of , on which the same was based, and due proof of the due service thereof on John Jones, temporary administrator; and on read- ing and filing the affidavit of John Jones, submitted in opposition to said motion, after hearing for the motion, and no one appearing on behalf of said Jones to oppose, Ordered, that the said motion be, and the same hereby is, granted. Ordered, that John Jones, as temporary administrator of the above estate, pay to , administrator with the will annexed, of , deceased, or to . Messrs. Jackson & Martine, his attorneys, within five days from the service on him. of a copy of this order, the sum of two thousand dollars, and that upon such payment, and production of a receipt showing the same, to the ref- eree to whom has been referred the settlement of said temporary adminis- trator's account, the said administrator be credited with that amount, the said sum. of $2,000. After the same is so placed in the hands of said administrator, to be subject to the payment of such sum as may be found due said tem- porary administrator for commissions, disbursements, or any other lawful costs and charges. [Signature of]. Surrogate. II. Order for Warrant of Commitment for Nonpayment of Money. [Title.] On reading and filing the affidavits of , administrator with the will annexed of , deceased, and the affidavit of , showing due personal service on said John Jones, of a certified copy of the order made herein, on the day of , , and that more than five days have elapsed since such service; and also showing a demand of the payment of the moneys mentioned in said order of said John Jones personally, and also showing the violation by said John Jones of said order, and his neglect and refusal to pay said moneys or any part thereof, which said order directed said John Jones to pay 1069 Forms. No. 84. the said , as administrator, etc., within five days from the service on liim of a copy of said order, the sum of two thousand dollars; and on reading also the order of the general term of the supreme court, first department, dated the day of , , affirming said order of , , and the costs of this proceeding to compel such payment, being now fixed at dollars. Now, on motion of Messrs. Jackson & Martine, attorneys for said , administrator as aforesaid, It is ordered, that a precept be issued out of, and under the seal of this court, directed to the sheriff of the county of New York, commanding him to take the body of the said John .Jones, if he shall be found in his bailiwick, and commit him to the common jail of said coimty of New York, and to keep and detain him therein, under his custody, until he shall pay the sum of two thousand dollars, as required by said order, and also the further sum of dollars, for the costs and expenses of the proceeding to compel such payment, together with the sheriiT's fees on such precept. III. Warrant of Commitment. The People of the State of New York, To the Sheriff of the county of New York, greeting: Whereas, on the day of , , by a certain order made in our surrogate's court for the county of New York, in a certain proceeding depend- ing therein, entitled " In the Matter of the Accounting of John Jones, as temporary administrator of the estate of , deceased," it was ordered that the said John Jones pay to , administrator with the will annexed of , deceased, or to Messrs. Jackson & Martine, his attorneys, the sum of two thousand dollars, within five days from the service upon him of a copy of said order. And Whereas, it appears that a certified copy of said order has been served upon said John Jones more than five days since, and that a personal demand has been made on the said John Jones for the payment of the said sum of two thousand dollars, by and on behalf of the said , administrator, as aforesaid, and by and on behalf of Messrs. J.aekson &. Martine, his attorneys, and that the said John Jones has hitherto neglected and refused, and still neglects and refuses to pay the same. And Whereas, an order was made herein on the day of , , directing a warrant to issue to commit the .said .John Jones to the common jail of the said coimty, there to be kept and detained until he shall pay the said sum of money, together with the sheriff's fees herein. Now, therefore, we command you, that you take the body of the said John Jones, if he shall be found in your bailiwick, and commit him to the com- mon jail of the county of New York, and keep and detain him therein, under your custody, until he shall have fully paid the said sum of two thoxisand dollars, as required by said older, and also your fees hereon, or until the said •John Jones be discharged according to law. And you are to return this writ and mandate on the day of , , to this court, together with a certificate, under your hand, of the man- ner in which you shall have executed the same. Witness, , surrogate of the county of New York, at the county court- house, in the city of New Y'ork, the day of , ISeal.] [Signature of], Surrogate. No. 84. [Ante, § 1122.] Probate of Heirship. I. The Petition. [Allege death and other jurisdictional facts, as in Nos. 16 and 42.] [[f the court has already acquired jurisdiction of the estate'i That on the day of , , this court acquired jurisdiction of the estate of said ISTo. 84. Forms. 1070 M. N., by virtue of the aforesaid facts and the following facts, to wit: that, on said day, a veriiied petition for a decree awarding the issue of letters of administration [or, of temporary administration — or, for a decree admitting^ to probate a paper writing propounded as tlie last will and testament of said M. N.l, was duly filed in this court, by C. D., stating the foregoing facts, and thereupon all the aforesaid [heirs and next of kin and widow] were duly cited or appeared in this court to show cause why such a decree should not be made. lOr if no surrogatn's court has acquired jurisdiction, allege, instead r That your petitioner is informed and believes, that no application has been made by any one, to any surrogate's court in this State having jurisdiction, for probate of any alleged will of said M. N., or for letters of administration or temporary administration on his estate ; and your petitioner verily believes,, that no surrogate or surrogate's court of this State has acquired jurisdiction of the estate of said M. N.j That the said M. N. died seized in fee of the following described premises: [description in full, with location showing the countyj. [State interest or :hare of parties claiming inheritance; see No. 16.] Wherefore, your petitioner prays that a decree be made herein, establish- ing the right of inheritance to said real property; and that all the heirs of the decedent may be cited to attend the probate of that right. [Date.] [Signature.] [Verification.] II. Citation to Attend Prohate of Heirship. [The command is:] to be and appear personally before our surrogate at his oflice [etc.], then and there to attend to the probate of the right of inheritance of the heirs of M. N., deceased, in said real property. III. Decree of Probate of Heirship. [Title.] [After reciting the filing of the petition, the issue and service of citation, and the appearances on the hearing, proceed as follows:] And the said surro- gate having heard the allegations and proof of the parties, and there being no contest respecting the heirship of any party, nor respecting the share to which any party is entitled as an heir of said M. N., and the surrogate having in- quired into the facts and circumstances of the case; and the said A. B., having established, by satisfactory evidence, that on or about the day of , , said M. N. died at [the city of New York], which at the time was his place of residence [or other facts giving the surrogate's jurisdiction] ; and that said M. N. died seized of the real property in said citation mentioned and hereinafter described; and that said M. N. died intestate [or, without having devised the real property in said citation mentioned and hereinafter described, to any specific person or persons] ; that there are [five] and only [five] heirs of the said M. N. entitled to inherit, in the manner hereinafter mentioned, the real property in , of which M. N. died seized and intestate [or, without, etc., as above'] ; and that said heirs are L. N., aged years, a [son] of said deceased, who resides at [Paris, in the Republic of France] ; K. N., aged years, a [daughter] of said deceased, who resided at No. , street, in the city of Brookljni, county of Kings, and State of New York [and so on], each of whom are proved to be entitled to one- [fourth] share in said real property; and 0. P., aged years, and Q. P., aged years, who reside at No. , street, in said city of , who are [grandchildren of said deceased, and children of his deceased daughter J. P., formerly J. N.], each of whom are proved to be entitled to one- [eighth] share in said real property. Now, on motion of A. T., attorney [etc.]. It is ordered, adjudged, and decreed, 1. That the right of inheritance of [naming heirs'], in and to the real property situated in the of ; of which M. N., late of the [city and county of New York], died seized, and which is hereinafter described, has been established to the satisfaction of the surrogate of [New York] county, in accordance with the fact hereinbefore recited; and that said L. N., K. N. [etc.], are each entitled to one undivided 1071 FOEMS. No. 85. [fourth] part or share, and said O. P. and Q. P. are each entitled to one un- divided [eighth] part or share of said real property, which said real property is bounded and described as follows: [description.'] 2. That said pay to the sum of dollars, for his costs and disbursements herein. ISignature.} No. 85. [Ante, § 1118.] Bill of Costs.i [Title.} DISBTJBSEMENTS. Costs pursuant to section 2561 of the Code of Civil Pro- cedure Contest No contest Days occupied in the trial or hearing, less two, and less adjournments Motion for new trial Allowance to accounting party under section 2562, Code of Civil Procedure, viz. ; Days occupied in trial or hear- ing, less adjournments Days necessarily occupied in preparing account Days necessarily occupied in otherwise preparing for trial Total Costs and Allowance.. Disbursements For serving citation on par- ties For publication citation. Law Journal For publication citation For referee's fees For appraiser's fees For stenographer's fees For affidavits and acknowledg- ments For postage For certified copies, orders For certified copy decree For satisfaction of decree For certificate of filing satisfac- tions For necessary copies of papers, as follows: For attendance of witnesses. . Total [ ss. : STATE OF NEW YORK, County of , A. B., being duly sworn, says that he is [managing clerk for] the attorney and counsel for [the executors] in the above-entitled proceeding; that the foregoing disbursements have been actually made or will be necessarily in- curred therein, by or in behalf of the said [executor]. That such disburse- ments are correctly stated, and are for reasonable and necessary expenses in this proceeding. Deponent further says that the time stated in the foregoing bill of costs as having been occupied as therein specified, was actually, substantially, and necessarily so occupied and employed in this matter by deponent, and that the time occupied on each day in the rendition of the services aforesaid, and their nature and extent in detail are as hereinafter set forth, opposite the date of the rendition of the services and under the appropriate head of particular class of services rendered in the above-entitled proceeding. That no compensation has been paid or given out of the funds of the estate of the said deceased, for or on account of the services specified herein. [■Jurat.] 1 No indorsement of this bill is required. See |§ 2561 and ! Rule 22 of Surrogate's Court, of New York county. I of the Co. Civ. Proc. and No. 86. ToEMs. 1072 No. 86. lAnte, § 1128.] Appeals.^ I. Notice of Appeal. [Title as in surrogate's court, in name of the proceeding therein.'] Take notice, that S. K., one of the legatees named in the last will of M. N., deceased, appeals to the general term of the supreme court, in the [first] de- partment, from the decree entered herein on the day of , , and from each and every part thereof [or, 'if from a portion only, specify what portion] . [Dote.] [Signature and address of], Attorney for S. R. To Hon. , Surrogate of [New York] county. 0. P., Attorney for X. Y., Executor, etc., of A. B., deceased. [l^ames of parties, if any, who have not appeared ty attorneys.] II. Undertaking on Appeal. [Title.] Whereas, on the day of , , this court made a decree [or, order] in this matter [state briefly the result sufficiently to identify it]. And Whereas, W. V., feeling aggrieved thereby, intends to appeal there- from to the supreme court: Now, THEREFORE, We, E. F. [specifying residence and occupation], and G. H. [specifying residence and occupation], hereby, pursuant to the statute, jointly and severally undertake to and with the people of the State of New York, that the appellants will pay all costs and damages which may be awarded against them upon the appeal, not exceeding two hundred and fifty dollars. [Date.] [Signatures.] [Acknowledgment ; Affidavit of sufficiency; and Approval of judge.] III. Same, on Appeal from Money Decree. Whereas, etc., [reciting decree and appeal, as above]. Now, THEEEFORE, We [specifying residence and occupation of sureties], hereby, pursuant to the statute, jointly and severally undertake to and with the people of the State of New York, in the sum of dollars, that if the decree, or any part thereof, is affirmed, or the appeal is dismissed, the appel- lants will pay all the costs and damages which may be awarded against them upon the appeal, and will pay [or, deposit — or, distribute] the sums so di- rected to be paid [or, collected] by the decree [or, and will deliver the prop- erty so directed to be delivered by the decree], or the part thereof as to which the said decree is affirmed. [Date.] iSigrMture.] 1 For forms of notice of appeal in proceedings to enforce transfer tax, see Form 66, XV and XVIII, ante. INDEX TO FORMS, ri073] INDEX TO FORMS. [References are to pages.} ACCOUNTING, voluntary, petition for, 1043. citation, 1044. waiver of service of citation, 1044. compulsory, petition for, 1044. answer of representative, 1044. order for accounting, 1044. intermediate, order to show cause for, 1045. order discharging order to show cause, 1046. order for accouni, 1045. account, form of, 1046. oath to accounts, 1047. objections to, 1047. affidavit for order directing examination of executor, 1048. order thereon, 1048. order of reference, 1048. referee's report, 1048. report of special guardian, 1049. exceptions to referee's report, 1049. notice of motion to confirm report, 1050. affidavit of regularity, where no contest, 1050. decree settling accounts, 1050. release of representative, 1051. testamentary trustee, petition for voluntary, 1052. account, 1053. guardian. See Guardian. ADMINISTRATOR. See Letters. with will annexed. See Letters, de honis nan. See Letters. ANCILLARY, administrator. See Letters. executor. See Letters. administrator c. t. a. See Letters. guardian. See Guardian. APPEAL, notice of, 1072. in transfer tax proceeding. See Transfer Tax. undertaking on, general form, 1072. appeal from money decree, 1072. appeal in transfer tax proceeding, 1024. APPEARANCE, notice of, 953. ATTACHMENT to enforce decree, 1066. order directing interrogatories, 1066. interrogatories, 1067. answer to interrogatories, 1067. commitment, 1067. BOND, of executor or administrator, 985. affidavit of surety, 986. petition for leave to deposit securities, to reduce penalty of, 997. order allowing deposit, 997. receipt of depositary of securities, 998. ri075] 1076 Index to Eoems. BOND — continued. petition to compel filing of new bond, 998. order thereon, 999. decree revoking letters on failure to give new bond, 999. release of sureties, petition for, 999. citation thereon, 999. decree releasing sureties, 999. action on, after letters revoked, petition for leave, 1000. order permitting suit, 1001. same; in action by the People, 1001. of representative on sale of lands, etc., 1033. of guardian of property and person, 1056. of legatee, on payment within year, 1027, 1028. of general guardian on receipt of legacy, 1028. CERTIFICATE, of disqualification of surrogate, 947. of appraiser's fees in transfer tax proceedings, 1020. of probate, 971. CITATION, AND SERVICE THEREOF. petition for citation, general form, 949. order for citation, 949. citation, general form of, 949. . to attend probate, 950. order for service by publication, 951. same; shorter form, 952. affidavit for additional service on infant or incompetent, 950. order for additional service, 950. affidavit of personal service, 953. of mailing, in case of publication, 953. waiver of service, 954, 1044. admission of service, 954. See Various Proceedings. COMMISSION, interrogatories upon, 957. waiver of cross-interrogatories, 958. COMMITMENT. See Attachment; Money. COMPROMISE OF DEBTS. See Debts. COSTS, bill of, 1071. DEBTS, publication of notice to creditors, application for, 1009. order to publish, 1009. notice to creditors to present claims, 1009. proof of claim, 1010. notice of rejection of claim, 1010. consent to determination of claim by surrogate, 1010. agreement to refer claim, 1010. order of reference, 1010. report of referee, 1011. judgment on report, 1011. compromise of, petition for leave, 1011. order authorizing compromise, 1012. execution on judgment against executor, petition for leave to issue, 1012. notice of application, 1013. order to show cause, 1013. undertaking by legatee, etc., before execution, 1014. order that execution issue, 1014. on judgment against decedent, petition for, 1015. answer of representative, 1016. decree allowing execution, 1016. compelling payment of, petition for, 1025. citation thereon, 1026. decree for payment, 102C. execution to enforce decree, 1027, Index to Fokms. 107Y DEBTS — continued. application of real estate to pay, petition for, 1029. creditor's notice of pendency of action, 1031. order directing accounting by representative, 1031. order for citation, 1032. citation, 1033. bond of representative, 1033. order appointing special guardian, 1033. order for jury trial, 1033. order appointing appraisers, 1033. oath of appraisers, 1034. report of appraisers, 1034. verification of report, 1034. decree directing sale, etc., 1034. decree for lease or mortgage, 1037. order directing execution of decree, 1037. order appointing freeholders, 1037. notice of sale, 1037. report of sale, 1038. order confirming or vacating sale, 1038. representative's deed, 1039. notice to widow as to satisfaction of dower, 1040. consent of widow to accept gross sum, 1040. order for publication of notice of distribution, 1040. notice of distribution, 1041. order for publication of notice of distribution of surplus money paid into Surrogate's Court, 1041. citation in such case, 1042. entry of demands found due, 1042. order of distribution, 1043. DEED of representative of lands sold, etc., 1039. DEPOSIT of property, where executors disagree, petition, 1006. order to show cause, 1006. order for deposit, 1006. DEPOSITIONS. See Examination; Prolate. DISCOVERY of property withheld, petition for inquiry, 1007. citation thereon, 1007. order for examination, 1007. • answer to petition, 1007. order as to requisites of bond to prevent decree, 1008. bond to prevent decree, 1008. decree for delivery, 1008. warrant to seize property, 1008. EXAMINATION of infirm witnesses, aifidavit to obtain, 956. order for examination, 956. notice of, 956. record of, 957. certificate of surrogate to, 957. of foreign witness, interrogatories, 957. waiver of cross-interrogatories, 958. of executor on accounting, affidavit and order for, 1048. of witnesses on probate. See ProT)ate. EXECUTION. See Debts. GUARDIAN, petition of infant for, 1054. affidavit of third person, 1055. consent of appointee, 1055. consent of parent, etc., 1055. oath of guardian, 1055. decree appointing, 1055. bond of guardian of property, 1056. bond on receipt of legacy, 1028. 1078 Index to Poems. GUARDIAN — continued. bond of guardian of person, 1056. letters of guardianship, 1056. temporary, petition for, 1057. testamentary, consent of guardian, 1057. oath, 1058. letters, 1058. ancillary, petition for, 1058. decree, 1059. letters, 1059. inventory of, order to file, 1060. affidavit of failure to file, 1060. order appointing special guardian to prosecute, 1060. annual inventory, 1061. accounting, petition for voluntary, 1061. petition for compulsory, 1062. account, 1062. oath to account, 1063. decree settling account, 1063. release of guardian by ward, 1064. revocation of letters, petition, 1064. citation, 1065. order revoking letters, 1065. resignation, petition for, 1065. citation, 1065. order for delivery of assets to surrogate, 1065. decree accepting resignation, 1066. HEIRSHIP, probate of. See Probate. INTERROGATORIES. See Attachment; Commission. INTERVENTION OF PARTIES. See Probate. INVENTORY, application for appointment of appraisers, 1001. order thereon, 1001. oath of appraiser, 1001. ^^ notice of appraisal, 1002. inventory, 1002. oath to inventory, 1004. petition for further time to return inventory, 1004. order thereon, 1004. affidavit of failure to return, 1004. order to return or show cause, 1005. petition for order to set apart exempt articles, 1005. citation thereon, 1005. decree to set apart or pay value, 1005. of guardian. See Guardian. JURY TRIAL, order for, in proceedings to sell lands, etc., 1033. LEGACY, petition for payment of, 1025. citation thereon, 1026. answer of executor, 1026. decree for payment, 1026. bond to refund legacy paid pursuant to decree, 1027. to refund, where legacy paid within year, 1028. on payment of legacy to general guardian, 1028. LETTERS, testamentary, renunciation of, 973. retraction of renunciation, 974. oath of executor or administrator, 974. petition to compel executor to qualify, 974. order thereon, 975. order that executor be deemed to have renounced, 975. form of letters testamentary, 975. Index to Foems. 1079 LETTERS — continued. supplementary, petition for, 975. order for supplementary letters, 975. affidavit of intention to object to issue of letters, 976. objections to grant of letters, 976. answer to objections, 977. order for inquiry and. stay of letters, 977. order on objections, 977. ancillary, on foreign probate, petition for, 978. affidavit as to heirs, legatees, etc., 979. exemplification of record, 979. citation, 979. decree, 979. letters, form of, 980. administration c. t. a., petition for, 980. renunciation of, 981. decree, 981. letters, form of, 981. ancillary letters of administration o. t. a., petition for, 982. letters, form of, 982. administration, letters of, petition for, 982. renunciation of, 983. consent that another be joined, 983. affidavit as to heirs, etc., 983. citation, 983. decree, 983. letters, form of, 984. same; shorter form, 985. administration de bonis non, petition for, 986. decree, 986. letters, form of, 986. ancillary letters of administration, petition for, 987. decree, 987. letters, form of, 987. public administrator, letters, etc., notice of application, 990. affidavit on application for, 990. temporary administration, notice of motion for, 990. affidavit for use on motion, 990. petition, in case of absentee, 991. order for letters, 991. letters, form of, 992. guardianship. See Guardian, revocation of, petition for, 994. order enjoining executor, 994. order revoking letters, 995. order revoking letters for failure to give new bond, 999, upon resignation, petition for, 995. order for accounting for purpose of discharge, 996. decree allowing resignation and discharge, 996. of letters of guardianship. See Guardian. MONEY, order for payment of, 1068. order for warrant of commitment, 1068. warrant of commitment, 1069. PROBATE PROCEEDINGS, petition for probate, 959. same; shorter form, 961. affidavit as to heirs and legatees, 961. petition, where citation not necessary, 962. for proof of nuncupative will, 962. for proof of lost or destroyed will, 963. for leave to file exemplified copy of will, 963. citation, 950. 1080 Index to Eoems. PROBATE PROCEEDINGS — continued. answer to petition for probate, 964. notice requiring examination of witnesses, 967. order that testimony be taken by clerk, 967. deposition of subscribing witness as to execution, 967. as to custody of will, 968. as to handwriting of testator, 968. as to handwriting of attesting witness, 968. notice of hearing of objections, petition of executor as to, 965. order directing giving of notice of hearing, 966. notice of hearing, 966. petition for leave to intervene, 966. order allowing intervention, 967. consent of special guardian to act, 969. report of special guardian, 969. decree granting or refusing probate, 969. same; where there is no contest, 970. establishing lost or destroyed will, 970. certificate of probate, 971. revocation of proiate, petition for, 971. decree revoking or confirming probate, 972. of heirship, petition for, 1069. citation, 1070. decree, 1070. SgG IjG'tiiGt'S PUBLIC ADMINISTRATOR, proceedings by, 988. affidavit for order to sell perishable property, 988. order thereon, 988. petition to seize property to prevent waste, 989. affidavit to accompany petition, 989. order thereon, 989. letters of administration to. See Letters. REAL ESTATE, sale of, to pay debts. See Debts. REFERENCE, order of, to determine questions of fact, 958. same, on consent, 959. on accoimting. See Aocounting. of claim against estate. See Debts. RELEASE, of executor, etc., 1051. RESIGNATION. See Guardian; Letters. REVOCATION. See Guardian; Letters. SPECIAL GUARDIAN, petition for appointment, 954. consent of appointee, general form, 954. affidavit of qualification, 955. aiffidavit of person with whom infant resides, 955. order appointing special guardian, 955. report of special guardian on probate, 969. appointment of, on failure of general guardian to file inventory, 1060. SUBPOENA from Surrogate's Court, 955. TEMPORARY ADMINISTRATION, letters of. See Letters. petition of administrator to pay debt, 993. decree thereon, 993. TESTAMENTARY TRUSTEE, accounting of. See Accounting. resignation and revocation of letters. See Letters. TRANSFER OF PROCEEDINGS TO ANOTHER COURT. certificate of disqualification of surrogate. 947. petition for order establishing authority of another officer to act, 947. order thereon, 948. order transferring proeeedines to Supreme Court, 948. notice of removal of proceeding, 948. order remitting proceedings to Surrogate's Court, 948. Index to Forms. 1081 TEANSFER TAX, petition by executor for appraisal, 1017. order appointing appraiser, 1017. notice of appraisal, 1018. affidavit by executor as to decedent's property, 1018. report of appraiser, 1019. oath of appraiser, 1020. certificate of appraiser's expenses, 1020. notice to superintendent of insurance to value annuities, 1021. notice of motion to confirm report, 1021. order confirming report, 1021. petition by district attorney for appointment of appraiser, 1022. citation thereon, 1022. order assessing tax in such proceeding, 1023. notice of assessment of tax, 1023. notice of appeal to surrogate, 1023. order of affirmance by surrogate, 1024. notice of appeal to Supreme Court, 1024. bond on appeal, 1024. UNDERTAKING, on appeal, generally, 1072. on appeal, in transfer tax proceeding, 1024. by legatee before execution, etc., 1014. WITNESS. See Examination. GENERAL INDEX. [References are to sections.'i ABATEMENT AND REVIVOR: of probate proceedings, 101. of proceeding to revoke probate, 101. of other proceedings, 103. to whom right to proceed survives, 103. of proceedings for accounting, 102. of accounting by executor of deceased executor, 923, «. surrogate may not of his own motion order, 102. death must have occurred after jurisdiction acquired, 102. of actions by public administrator, 379. of action, etc., by or against executor, 564. of appeal from Surrogate's Court, 1136. substitution in case of death before appeal, 1136. provision in case of death before hearing, 1136. effect of failure to substitute, 1136. proceedings in such case, 1136. ABSENTEE: appointment of temporary administrator on estate of, 403. county treasurer to apply for letters, 404. application for letters on estate of, must be by petition, 405. petition for, contents of, 406. mode of proof, 405. no statutory rules of priority, 406. realty of, authority of temporary administrator over, 413. acts of administrator bind, 413. family of, provision for, by temporary administrator, 415. grounds for revocation of letters on estate of, 436. ACCOUNTS: of executors and administrators, form of, 978 rule in New York county as to, 917, m. subject-matter of, 978. verification of, 982. vouchers to be filed with, 983. when vouchers dispensed with, 983. of testamentary trustees, 915, 924, 929. See Accountings, etc. of temporary administrators, 422. of guardians by will, 1064. of general guardians, annual inventory, 1030. final account, 1033. See Guardians. of public administrator, 395. of county treasurer acting as public administrator, 384. grounds for opening. See Decree. effect of settlement of. See Accountings, etc. ACCOUNTING, ACTION FOR: jurisdiction of, belongs to what court, 62, 908. when court of equity will not act, 62, 908. [1083] 1084 Geneka. I.BEX. ^TZZr A(X!OUNTING, ACTION FOR — continued. when it may compel, 62, 908. where one assumes to act as executor, 908, n. in cases of dissension between executors, 908. questions of individual right, 908. in cases where surrogate is without jurisdiction, 908. in case of foreign executor or estate, 908. in case of devastavit, 908. special reasons must be proved, 908. surrogate's jurisdiction, in general, concurrent, 908. who may maintain, 908, n., 935, n. not allowed at same time with surrogate's accounting, 908, n., 931, n. effect of judgment decreeing distribution upon surrogate's juris- diction, 931, TC. against trustee or guardian by sureties, 908, n. executors and administrators deemed trustees, 908. plaintiff may elect as to mode of procedure, 908. ACCOUNTINGS IN SURROGATES' COURTS: jurisdiction of surrogate to direct and control, 909. jurisdiction, in general, concurrent with that of Supreme Court, 908, 909. authority of surrogate pending accounting in Supreme Court, 909, 931. effect of judgment of Supreme Court directing distribution, 931, n. locality of the jurisdiction, 910. in case of executor of executor, 910. the different kinds of, 911, " final accounting " explained, 912. meaning of " final " under former statutes, 912. two modes of, under Revised Statutes, 912, n. general object of, 912. power of courts of other States to discharge executors, etc., appointed in this State, 910, to., 919, n. Intermediate accounting, definition of, 911, 913. distinguished from final accounting, 911, 912. voluntary, permitted at any time, 913. when compellable in surrogate's discretion, 914. on applying for execution on judgment against representative, 914. on applying for execution on judgment against decedent, 914. on proceeding to obtain legacy or share, 914. after eighteen months from letters, unless judicial settlement pend- ing, 914. surrogate, no power to refer, 817, n. by testamentary trustees, 915, 924. may be on surrogate's motion, 916. surrogate's limited authority in such cases, 917. rule in New York county as to form and contents of account, 917, to. authority of surrogate exhausted when account filed, 917. may be contested by any party interested, 918. consolidation of proceeding, 918. limitation of, 918. effect of, on power of surrogate, 918. Judicial settlement, meaning of, 912 to. whose accounts subject to, 919. executor or administrator must have received letters, 919. where one year has elapsed since letters, 919, 928, 941. where notice to creditors published, 919, 941. where letters have been revoked, 919, 928. in case of resignation, 919. where one assumes to act as executor, etc., 919. one tortiously interfering, and subsequently qualifying, 919. one named in will but not qualifying, 919. one of two cannot petition for, 920. ""ZZZror^!' G^^^«^^ Index. 1085 ACCOUNTINGS IN SURROGATES' COURTS — continued. nor be required to account alone, 920. but he may voluntarily account for his separate acts, 920. executor, etc., of deceased executor, 921, 923. what such executor must account for, 923, n. compelling delivery of trust property, 922. where executor is also trustee, 924, n. where executor acts under a deed of trust, 924, n. in what cases had voluntarily, 919. after one year from letters, 919, 941. where notice to creditors published, 919, 941. upon resignation, 919. where letters revoked, 919, 923, n. , where real property sold under a power, 919. by executor of deceased executor, 923. by temporary administrator, when, 926. by administrator with will annexed, 927. by testamentary trustees, 924, 929. in what cases compellable, 928 et seq. by executors and administrators, 928. aiter one year from letters, 928. after cessation of powers for any cause, 928.. after sale, etc., of real estate, under decree, 928. after sale under will, 926. executor of deceased executor, 921, 923. when compellable, 921. where letters revoked, 923a. by testamentary trustees, 924, 929. representative of deceased trustee, 921, 923, 925. where trustee appointed by Supreme Court, 925. temporary administrators, 926. when accounting a matter of right, 933. successive accountings, 930. limitation of proceeding, 932. period of limitation extended by act of executor, 932, 951, n. in case of trustees, no lapse of tiine a bar, 932. when order to account discretionary, 944, 953. when must be made, 933, 944, 954. who may compel, 933. creditor or person interested in estate, 933. post-testamentary child, 933. suretj' in accountant's bond, 465, 933. representative of such surety, 933. accounting of testamentary trustee, 934. of representative of deceased representative, 921, 923. at whose instance, 934. "persons interested" defined, 98, 143, 934, 936. creditors, 936. co-representative may compel, 935. successor of representative may compel, 935, n. surviving executor, 935, n. legatees and distributees, 937. assignees of creditors, legatee, or next of kin, 938. trustee in bankruptcy of legatee, 921, n., 938. receiver of legatee, 938. persons entitled to next eventual estate, 939. intervention of third persons, 958. surrogate of his own motion may compel, 916. petition for voluntary accounting, 940. time for filing, 9*41. pendency of compulsory proceeding no bar, 940. 1086 Gbneeal Index. iJeferewces are to sectwns. ACCOUNTINGS IN SURROGATES' COURTS — continued. requisites of, 940. in case of resignation, 942. in case of revocation of letters, 942. where testamentary trustee petitions, 943. where one of two executors, etc., petitions, 920, 940. co-executors to be cited, 99, 920, 940. Cshange of compulsory to voluntary, 955. when made, 965. when consolidation cannot be effected, 955. proceeding in such case, 955. supplemental citation in such case, 955. of proceeding by or against representative of deceased represen- tative, 956. intervention of third persons, 105, 958. petition to compel, 944. prayer of, 944. when citation must issue on, 944. requisites and object of, 944, 946. where accounting of trustee is sought, 945. time of filing, 944. allegation of interest in, 947. citation, to whom issued, 940. on voluntary accounting, 940, 957. by executors, etc., 937. where proceedings are consolidated, 955. on accounting of representative of deceased executor, etc., 923. on revocation, 942. on resignation, 942. on accounting by testamentary trustee, 943. where one of two executors petitions, 99, 920, 940. on compulsory accounting, 944. if distribution desired, all parties must be cited, 944, n. proceedings on return of, on voluntary accounting, 974. effect of default of persons cited, 974. special guardian for infant parties, 974. report by, 974. supplemental, when to be issued, 955, 1008. answering petition and citation to compel, 948. representative's answer to petition, 948. traversing allegation of interest, 947, 949. grounds of opposition to petition, 948. fact that petitioner's claim is disputed, no defense, 949, n, so, too, an allegation of release by petitioner, 949. pleas to the jurisdiction, 948. pleas in abatement, 931, 948, 950. defense of prior accounting, 950. pendency of action for accounting, 931. outlawry of petitioner's claim, 951, statute of limitations, 932. statute must be pleaded, 951. counterclaim cannot be set up, 950. denial of assets, 952. order directing account, 954. attachment for failure to obey, 954. executor bound, without service of, 954. filing the account, 959. proceedings on neglect to file account, 954. examination of account and accountant, 960, 976, n. filing objections to account, 961. who may file, 961. by persons not parties, disregarded, 961, n. ""^ZZ::' G-NEBAL I.BEZ. 1087 ACCOUNTINGS IN SURROGATES' COURTS — continued. form of objections, 961. may be required to be verified, 87, n., 962. further objections may be filed, 961, n. rule in New York county as to filing objections, 961, n. serving copy of objections, 962. account and objections considered as pleadings, 961, n. referring the account, 963. surrogate no power to refer intermediate account, 817, n. no power to refer a disputed claim, when, 963, n. proceedings before referee, 975. powers of the referee, 964. may allow filing of further objections, 961, n. may allow amendments, 961, n. referee subject to surrogate's direction, 965. report must be passed on by surrogate, 965. surrogate may send back report for further findings, 118, 119, 965. or he may himself modify it, 965. report of referee and its confirmation, 977. after report filed, referee cannot act, 977, n. rule in New York county as to confirmation of report, 977, n. filing of exceptions to report, 977. principles governing confirmation, 977. principles governing settlement of account, 966. what assets to be accounted for, 529. issues triable on accounting, 967. limits of surrogate's power in decreeing distribution, 968. impeaching inventory, 985, 986. disputed claims of creditors and others, 49, 968, 969. equitable interests, 968. validity of assignments, 968. of release, 47, 949, 968. claims of legatees or distributees, 968, 969. no distribution unless all parties cited, 944, n. amount of advances to legatees, 969, n. cannot question decree of Supreme Court, 951, n, power to construe will, 253, 254, 970. right to inheritance of heirs-at-law, 970. reimbursement for advances to beneficiaries, 971. taxability of legacy or distributive share, 969. claims by and against representatives, 972. joint claims due from representative and another, 9'72. contra, as to joint claims against estate, 972. on accounting by testamentary trustees, 973. burden of proof, on whom, 976, 984. additional allowance for expenses, 552, 989. decree on, must direct distribution, 1006, 1008. must contain summaries of account, 1007. when may direct delivery of specific property, 1009. must direct retention for undetermined claim, 1010. direction as to disposition of infant's share, 1011. direction to deposit moneys, etc., with county treasurer, 1012. direction as to payment of unclaimed legacy, 1012. may construe will, 253, 254, 970. conclusive effect of, directing payment, 1013, 1075. direction for payment, satisfied only by compliance, 1013. effect of, to protect or charge accounting party, 1073. , on voluntary accounting of trustees, 924. on accounting of one of two executors, 1074, n. on accounting of testamentary guardian, 1065. how far conclusive, in general, 1074. upon parties not cited, 1013, n. 1088 Ge^ebai. I^bex. Z'ZZr ACCOUNTINGS IN SURROGATES' COURTS — continued. upon sureties in accounting party's bond, 1076. effect of, as bar to action, 1074, 1075, n. on subsequent accountings, 930, 1074, n. conclusive as evidence only, 1076. opening, vacating, etc., 1077. form and matter of account, 978. items on debtor side, 978. items on creditor side, 979. classes oi credits enumerated, 979. expenses of accounting should not appear, 979, »., 1115, ». credits subtracted from debits, 979. entry of unsold and exempt articles, 979. statement of articles set apart, 979. facts additional to the pecuniary items, 980. separate trusts, how stated, 981. verification of account, 982. form of, 982. vouchers; to be filed, 983. when dispensed with, 983. effect of lack of, 984. proof on nonproduetion of, 984. production of, when deemed waived, 984. relation of inventory to account, 985. inventory prima facie evidence of what, 985. inventory not conclusive against either party, 985. assets not in inventory, 987. rectifying erroneous debits, 986. impeaching inventory, 985, 986. who may impeach, 986. chattels subject to life estate, 987. remedy of rMnainderman, 987. ACCUMULATION: of rents, etc., restrictions on power of testator to direct, 260, 262, n. of income, 262. implied directions for accumulation also prohibited, 262. legacy not void, because of, 262. of income of personalty, when valid, 262. when must commence, 262. for minors, when must terminate, 262. how far void, where ownership suspended, 262. effect of void direction for, on will, 263. ACKNOWLEDGMENT : by representative, of debt, etc., effect of, 630, 860. ACTION: to determine validity of devise, 60, 137. who cannot bring, 60, 137. proof in, 137, n. judgment in, 137. to establish will, 61, 134. limitation of, 565. where original cannot be produced, 61, 134. of personalty, of nonresident, 61, 135. judgment in, 136. lost or destroyed will, 59, 61, 134, 234. limitation of such action, 234, «., 565, n. judgment in such action, 239. jurisdiction of Federal courts, 63. to determine validity of probate, 60, 138. by whom brought, 138. issues in, 138. triable by jury, 138. effect of verdict, 138. ^t\ZrLT^ Geneeal Index. 1089 to sections. ACTION — continued. verdict may be directed, 138, n. limitation of, 138. to revoke probate, 424. to recover a chattel from representative, 565. limitation of, 565. to collect assets, 565. limitation of, 565. ' legatee cannot maintain, 99, «., 563, n. by and against executors generally, 564 et seq. between co-executors, 525. survival of rights of action to representatives, 541 et seq. joinder of parties and causes of action, 568. against executor, etc., personally when, 567, n. rules of survival and revivor, 564. pleadings; set-off, 569. judgment against representatives generally, 570, 677. action on judgment by representatives, 570. by and against foreign executors, etc., 518, 567. by and against temporary administrators, 418. by and against public administrator, 395. costs in actions by representative, 571, 656, 657. execution thereon, 678, 679. security for costs in such actions, 572. on claim rejected, 650. limitation of, 639, 646. for distributive share, 833, n. for accounting, 62, 908. for legacy after one year, 778. when accrues, 778. lies when, 778. defenses to, 779. execution in, leave to issue, 779. undertaking before execution, 682, 778, 779. form of undertaking, 682. for legacy charged on land, 739. to construe will, by whom maintained, 257, 280. by heirs-at-law, for reimbursement, after lands sold, etc., 907. to vacate appointment of guardian, not maintainable, 1025. on surrogate's decree, 1087. limitation of, 1087. on oflBcial bond of surrogate, 30, 31. leave to prosecute, 31, 32. proof in action on, 33. defenses, 34. execution, 35. apportionment of recovery, 36. of executor, administrator, or guardian, 467, 1085. after execution unsatisfied, 467. after revocation of letters, 467. of temporary administrator, 466, n. ACTING SURROGATE. See Surrogate. ADEMPTION: distinction between, and revocation, and satisfaction, 750. of specific legacies, 751. of demonstrative legacies, 752. ' of general legacy, 751. of legacy to debtor, 748. by advancement, not applied to devises, 753. ADJOURNMENT: failure to adjourn to a day certain, effect of, 71. proper practice, in such ease, 71. surrogate's power to order, 52. 69 1090 Genekal Inbex. ^^Sn."" ADMINISTEATOE: when to be appointed, 337. origin of office of, 515. quality of title of, 514. takes no title to lands, 530. representative character of, 516. no distinction in general between executor and, 515. when title vests, 364, 516, 521. no rights before grant of letters, 364, 562. authority by letters relates only to personalty, 364. is a trustee for benefit of persons interested, 516, 522. foreign, rights of, in this state, 318, 518, 567. who competent and qualified to act as, 343, 361. grounds of incompetency enumerated, 361. competency of corporations, 361. of infants, 361. of married women, 344, n. oath of, 362. presumption as to, in collateral action, 362. bond of, 363, 470. must be joint and several, 363, 470. to be filed with surrogate, 363, 470. penalty of, 363, 470. modified security on limited letters, 360, 471. restraint upon representative in such case, 471. modified security on consent of next of kin, 472. minimum amount of such security, 472. special on selling, etc., lands, 869, 874, 870. condition and penalty of such bond, 473, 876. letters of, surrogate's jurisdiction to grant, 338. nature and extent of jurisdiction, 338. exclusive and concurrent jurisdiction, 339. when jurisdiction acquired, 342. extends to estates of all residents, 338. and to those of nonresidents leaving assets here, 338. residence defined, 341. when letters granted to, 338. estate may be settled without letters, when, 364, ■«. in case of resident, 338. married women leaving no descendants, 346. in case of unmarried illegitimate, 343, n. in case of alien intestate, 344. to nonresident, 343. to minor's guardian, 343. order of preference among relatives, 343. other than relatives, 344. persons in same class, 345. selection discretionary, 345. public administrator, 343, 344, 346, n., 378. county treasurer, 344, 378. to surviving husband, 346. to married women, 344, n. to divorced wife, 347. nonresident alien not entitled to, 361. joinder of person not entitled, 348. preference not to be delegated, 349. may be limited, 360. modified security in such case, 360. when grantee entitled to receive, 359. foundation as well as evidence of authority, 364, 366. relate solely to personalty, 364. priority among different letters, 364a. ^TSr Geneeal Index. 1091 .ADMINISTRATOR — continued. are conclusive evidence of authority until revoked, 364a. retroactive effect of, 364a. effect of grant of, by way of estoppel, 365. collateral impeachment of, 366. burden of proof on party attacking, 366. record of, as evidence, 367. renunciation of right to, 352. mode of, prescribed, 352. must be filed, 352. absolute or qualified, 353. retraction of, 353. petition for, who may apply, 350. mode of application, 351. contents of petition, 351. citation, presumptive proof requisite for, 354. not to issue, of course, 354. when unnecessary, 354. examination of witnesses to ascertain facts, 354. cases where it must issue, 355. letters revoked when one having prior right not cited, 355. ' when to issue in surrogate's discretion, 355. who to be cited, 355. contents and service of, 356. to creditors, to be published, 355, n. due citation, how proved, 1081. appearance by person not cited, 357. hearing, proceedings on, 358. two kinds of, 358. stay on allegation of will, 358. questions of marriage, legitimacy, etc., 358. presumption in such case, 358, n. decree may be made on presenting petition, when, 354, 355. proof prerequisite to, 354, 358. always to be made, 354. may be made without examining grantee, when, 358, 359. may award letters to any party entitled, 359. formal defects in letters may be remedied, 366. Revocation of letters, power of surrogate, 44, 50, 59, 425, 429. power confined to our courts, 424. by action, 424. by motion, 425. incidental, 426. on failure to give additional security, 463. on application of surety, 426, 465. by subsequent probate of will, 427. pending appeal from decree declaring will void, 427. summary, for misconduct, 428. cases of misconduct enumerated, 428. petition for, 429, 437, 438. who may apply, 429, 437. how application made, 429. surrogate no power to grant, unless conferred by statute, 429. power of, discretionary, 429. petition for accounting by successor, 444. right to reappointment, 447. cessation of powers, 448. does not affect validity of prior acts, 130, 448. effect of, 448, 1072. no stay, though decree appealed from, 441, 448. incompetency and disqualification as cause for, 430. malfeasance, dishonesty, etc., 431. 1092 Genebai. Index. ""TsZ^!' ADMINISTRATOR — continued. gross negligence, 431. particular grounds stated, 431. willful violation of law, 432. false suggestion of fact, 433. pendency of action for, no bar, 437. citation and service, 438. proceedings upon the hearing, 439. dismissing proceeding, notwithstanding proof, 440. decree of revocation, 441. must be recorded, 441. resignation, on petition of, 442. granting discretionary, 442. petition and order, 443. proceeding same as on accounting, 443. citation and service, 443. accounting on, 444. appointment and powers of successor, 445. ADMINISTRATOR, ANCILLARY. See Ancillary Letters. ADMINISTRATOR DE BONIS NON: meaning of term, 368. when to be appointed, 368. has no greater rights than his predecessor, 369, n. may compel delivery of trust property by predecessor, 922. powers of, 369. petition for letters, etc., 370. bond of, 370, n. penalty, 370, n. form of letters, 370. public administrator may be appointed, 370, n., 378, n. ADMINISTRATOR, TEMPORARY: Appointment of, in what cases allowed, 403. on delay in granting letters or probate, 403. on estate of absentee, etc., 403. extent of surrogate's power as to, 403. power is discretionary, 403, 407. proceedings for letters in chief must be pending, 403. power to make, not lost by removal to another court, 405, n. not appointed pending appeal from decree revoking letters, 441. appeal from decree of probate, not ground for, 403. pending application for letters of administration, 403. pending application for modified security, 403, 472. Letters to, from Surrogate's Court, 404. who may apply for, 404. when county treasurer may apply for, 404. on decedent's estate, mode of applying for, 404. notice of such application, 403, 405. notice, how served, 410. manner of giving notice may be prescribed by surrogate, 410. may be granted on aflSdavits, 405. grant of, without notice, irregular, 405, n. proof, how made, 405. much slighter proof of death sufficient, than for permanent letters, 405, n. on absentee's estate, application for, is by petition, 405. contents of petition and proceedings in such case, 405. citation on such petition, 405. form of letters not specified in statute, 409. effect of letters, 409. public administrator may apply for, 402, 404. grant of, not reviewable, on appeal, 407. References are General Index. 1093 to sections. ^ADMINISTRATOR, TEMPORARY — co« tinned. Competency and qualification of, 408. no statutory rules as to priority, 406. who eligible as, 408. executor named in will may be appointed, 408. party to contest not ineligible, 408. usually a disinterested person should be selected, 408. in Kings county, public administrator may be appointed, 408. bond of, same as ordinary administrator's, 475. Powers and duties of, 411, 412. authority over personalty, 411. sales on surrogate's order, after appraisal, 411. paying funeral expenses, 414. or other administrative expenses, 414. but not expenses of probate, 414, 870, n., 1116. payment of legacy or distributive share, 414. must preserve estate, not administer it, 412. providing for absentee's family, 415. acts of, bind absentee, 413. advertising for claims, 416. effect of, 416. paying debts on surrogate's order, 417. petition to compel such payment, 417. order on such petition, 417. duty as to deposit of moneys, 419. attachment for default as to deposit, 420. practice in New York county, 420, n. effect if warrant not served, 420, 421, 428. such moneys, how withdrawn, 419. liable for interest on funds retained, 419, 420, 610, n. authority over realty of decedent, 412, 595, n. of absentee, 413. lease of, on surrogate's order, 412. term of such lease, 412. cannot sell realty, 412. actions by and against, 418. leave necessary to sue, when, 418. right to sue cannot be questioned collaterally, 418, n. Accountings by, 422, 926. compellable at any time, 422, 926. on revocation of letters, 422. bond of, not to be canceled on, 422. sureties in ofiBcial bond of, continue liable, 422, n. disputed claims by and against, adjusted on, 422, n. inventory by, m.ay be compelled, 500. conclusive effect of decree on, 1074, n. Compensation of, 423. same as ordinary administrator, 423. when permanent letters issued, entitled to, in one capacity only, 423. must elect as to, 423. apportionment of commissions among several, 423, •«. not entitled to expenses incurred on applying for his appointment, 423, n. based upon property specifically bequeathed, 423, n. Revocation of letters, 421. on estate of decedent, 421. on issuance of permanent letters, 421. for default as to deposit, etc., 421, 428. of absentee, when. 421, 428. on resignation, 421. effected by decree revoking letters, 421. surrender of estate on, 421. who may petition for, in case of absentee, 421. 1094 Gen^bai, I^dex. ^TZZr^:' ADMINISTRATOR WITH WILL ANNEXED: office of, considered generally, 326. distinguished from administrator de ionis non, 326, n. in general, included in term, " administrator," 326. receiver with powers of, when appointed by Supreme Court, 326, n. Appointment of, by surrogate, 327. failure of will to appoint executor, 327. cessation of oflBce of executor, etc., 327. application by one not having prior right to, 331. when must be by petition, 331. citation in such case, 331. renvmeiation required of all others having prior right, 331. practice in New York county, 331, n. notice of, discretionary, where no petition, 331. to what surrogate application made, 330. questions determinable by surrogate, 330, n. Letters of, who entitled to, 328. under Revised Statutes, 328. statutory order of preference, 328. priority among applicants of same class, 329. no discrimination between males and females, 329. among creditors, 329. " proper person," whta, 329. when to public administrator, 328. on proof of foreign will, 333. when issuable, in general, 330. Qualifications of, 332. official oath, 332. must be filed before letters issue, 332. bond like ordinary administrator's, 332. penalty, how fixed, 332. Powers and duties of, 326, 334. governed by will, 334. statute requires will to be performed, 335. construction of this statute, 335. bound by decree against predecessor, 334. may enforce obligations of testator, 334. may compel accounting by representatives of predecessor, 334. restrictions as to lands, discretionary powers, gifts in trust, etc., 335, 527. unless ordered sold for payment of debt, 335. estate of, in real property, 335, 527. estate of, in personal property, 335, 527. liability upon his own contracts, 336. but not for defaults of his predecessor, 336. ancillary letters to, 312. accounting by, 927. ADMISSION: of service of citation, 76. by representative, of debt, effect of, 630, 637, 860. ADOPTION: of children, surrogate may cancel for cause, 46. name of child after, 815. relation of parties after, 815. child has right of inheritance, 815, 819. exception to such rule, 815. rights of heirs, etc., of adopted child, 815. legacy to child, exempt from transfer tax, 706. ADVANCEMENT: what is, 233, 753, 811, 830. effect of, on heir's share of real property, 811. when to be deducted, 811. Ref^ences are Geneeal Index. 1095 to seottons, ADVANCEMENT — continued. how adjusted, 812. efiFeet of, on distributive share, 830. eflfeet of, on legacy, 751, 753. when presumed satisfaction of legacy, 753. testator must stand in loco parentis, 753. evidence of, 753. reckoned as surplus of personalty, 811, n. when gift not deemed, 753. principle of, not applied to devises, 753. allowed representative in accounting, 969, n., 971. See Legacy. ADVERTISING FOR CLAIMS: applications for leave to publish, 636. may be published at any time after letters, 636. in what papers published, 636. notice to creditors, and contents of, 636. errors in notice immaterial, 636. no absolute obligation to give, 636. See Debts. AFTER-BORN CHILD. See Posthumous Child; Post-testamentary Child/rev,^ AGE: disqualification of surrogate by reason of old, 7. at what, testator competent to make will, 208. policy of statute, 208, n. testamentary, burden on proponent to prove, 187, 208. nonage, how proved, 208, n. question of, as affecting probate, 208, 211, n. fraud in execution of will not presumed from old, 210. of infants, how proved, 77, »., 208, n. ALIEN: meaning of term, 305. ancestor, inheritance through, 810. nonresident, incompetent as executor, etc., 305. may dispose of property here, by will, 209. nonresident, entitled to be cited, when, 92, n. ALLEGATIONS AFTER PROBATE: contesting will on, 277. See Prohate. ALLOWANCE. See Costs, etc. ALTERATIONS. See Will. AMBIGUITIES: latent and patent, discussed, 270. extrinsic evidence to explain, 270. See Will. AMENDMENT: of pleadings and proceedings, 57. surrogate's power to allow, 57. of inventory, 498, 503. of objections to account, 961. of papers on appeal from Surrogate's Court, 1138. ANCIENT WILL: what is an, 132, 252. presumption as to genuineness of, 132, 252. record of, as evidence, 252. ANCILLARY GUARDIAN. See Guardian, General. ANCILLARY LETTERS OP ADMINISTRATION: jurisdiction to grant, when possessed, 371. which Surrogate's Court has jurisdiction to grant, 371. object of, to protect claims of domestic creditors, 314. when letters ancillary and when principal, 371, n. in what cases issuable, 372. 1096 Ge^ebal Inbex. T=;r ANCILLARY LETTERS OF ADMINISTRATION — cojiHraMed. petition for, 373, 718. proof requisite, where decedent resident of foreign country, 373. in case of resident of another State, 373. to whom issued, 372. where two or more are named in the foreign letters, 372. cases where letters shall not be issued, 372. bond of grantee, 316, 477. penalty of, 316, 373, /i., 477. rights and powers of grantee over domestic assets, 318. domestic assets, how disposed of, 317, 795, n. qualifications of grantee, 315. rights, powers, and duties under, 318. with will annexed, 312. ANCILLARY LETTERS TESTAMENTARY: practice to grant independently of statute, 312. which Surrogate's Court has jurisdiction, 312, 313. when granted, 312. application for, how made, 313. notice of, to creditors, 314. proceedings on hearing, 314. to whom granted, 315. where two or more named in foreign letters, 315. qualification of grantee, 315. bond of grantee, 316. sale of realty not authorized under, 318". domestic assets, how disposed of under, 317. See Ancillary Letters of Administration. ANNUAL ACCOUNTING. See Guardians; Trustees, etc. ANNUAL RESTS. See Commissions; Trustees, etc. ANNUITY. See Legacy. ANTENUPTIAL AGREEMENT: power of surrogate to construe, 47, n. waiver of widow's right to exempt articles by, 507, n. APPEALS FROM SURROGATE'S COURT: procedure under Revised Statutes, 1130. To the Supreme Court, under the Code, 1128. changes eflfeeted by the Code, 1128. not governed by general chapter (12) of Code, 1128. lies from what, 1129. every final decree of Surrogate's Court, 1129. orders affecting substantial right, 1129, 1130. meaning of substantial right, 1130. from decree of surrogate though docketed in Supreme Court, 1129, n. order appointing special guardian, when, 1134, n. order directing accounting, when, 1130. order for new trial in proceeding to sell, etc., 865, 1146. order awarding proceeds of sale for debts, 896. examples of appealable orders, 1130. order for execution on judgment against executor, how far, 681. when discretionary orders reviewable, 1130. from surrogate's finding of sufiiciency of assets, 1130. order denying motion for commission, 1130, n. when does not lie, 1130. from order or decree on default, 1129, 1131. from decision on which no order is entered, 1129. from ex parte order on ground of irregularity, 1129, n. remedy in such ease, 1129, n. order appointing guardian, 1130. order of reference, 1130. order appointing temporary administrator, 407. ^T?J^-' r^ Geneeal Index. 1097 to sections. APPEALS FROM SUREOaATE'S COURT — continued. instance of nonappealable orders, 1130. when discretionary orders not reviewable, 1130. who may appeal, 1131. persons not parties, 1132. intervention of such persons in, 1132, 1133. special guardian, 1131. legatees, 1131. representative on accounting, 1131. on probate, 1131, n. creditors, 1132. attorney, asserting lien for services, 1131, n. respondent; who necessary, 1133. necessary, brought in by appellate court, 1133. surrogate cannot order intervention pending, 1133, n. infants, represented by special guardian, 1134. appointment of special guardian by appellate court, 1134. designation of parties and proceeding, 1135. substitution of, in case of death before appeal, 1136. provision in case of death before hearing, 1136. effect of failure to substitute, 1136. proceeding in such case, 1136. to whom application for substitution made, 1136. undertaking on, in such case, 1136, n. limitation of time for taking, by parties, 1137. by strangers, 1137. in such case time computed from entry or order or decree, 1137. where title acquired by assignment, 1137. omission to take, in time, fatal, 1137. motion to dismiss where not taken in time, 1137. enlarging time, curing defects on, etc., 1138. under the Revised Statutes, 1137, ■«. perfecting appeal, 1139. notice of, how served, 1139. where respondent, appearing personally, cannot be found, 1139. security to perfect, requisites of, 1140. giving of undertaking may be waived, 1140, n. service of notice and filing of security ends surrogate's jurisdic- tion, 1140, n. no security required of public administrator of New York, 395. 1140, n. stay of proceedings on, 1141. how effected, 1141. on appeal from decree directing payment, 1141. in proceeding for leave to issue execution, 1141. perfected appeal effects, when, 1142. in probate cases, etc., letters may issue, 1142. decree revoking letters, etc., 1142. decree of removal, 1142. effect of pending appeal on proceeding to revoke probate, 1142. order granting letters of administration, c. *. a., 1142, n. order appointing temporary administrator, 1139, n., 1142. order appointing appraiser, 1142. order requiring executor to file a bond, 1142, n. ' undertaking for, generally, 1141. in commitment cases, 1141. papers on appeal, 1143. case to be made and settled, 1143. exceptions, necessity of, 1143. request for finding, 114, 115, 1143. in absence of findings, nothing to review, 114, 1143, n. extending time to make case, 1143. settlement of case, 1143. 1098 Geneeal Index. References are to sections. APPEALS FROM SURROGATE'S COURT — continued. determination of, principles governing, 1144. appellate court may send back to have findings stated separately, 114, n. appeal may be dismissed for lack of necessary parties, 1133. effect of not returning evidence, 1144. dismissal of, if not taken in time, 1137. when no reversal for error in evidence, 1144. findings of referee not disturbed unless contrary to the evidence, 119, n. what appeal brings up for review, 1129, 1144. qiiestions not considered below, not reviewable, 1144, n. former discrimination as to probate cases abrogated, 1145. same power to determine facts, as surrogate, 1145. or to take further testimony, 1145. or appoint a referee, 1145. on appeal from order opening, etc., decree, 1145. may be a reversal, affirmance, or modification, 1145. or may grant a new hearing, 1145. proceedings may be remitted to surrogate, 1145. when proceedings must be so remitted, 1145. when probate directed, on appeal from decree refusing, 1145. affirmance where evidence evenly balanced, 1144, n., 1145. where decree aiBrmed in part and reversed in part, 1145, n. costs on. See Costs on Appeal. in probate cases, special regulations as to, 1146. jury trial on reversal or modification, 1146. not a requirement, when, 1146. review of verdict after jury trial in Supreme Court, 164, 1146. To Court of Appeals, from Appellate Division, when lies, 1147. order directing account not appealable, 953. nor order of Appellate Division reversing surrogate upon the facts, 1129, n., 1147. what questions reviewable on, 1148. security to perfect, 1141, n. how far evidence will be looked into, 1148. matters of discretion not reviewable, 1148. proceedings after determination of, 1149. Appellate Division order to be filed with surrogate, 1149. where proceedings remitted by Court of Appeals, 1149. powers of surrogate after, 1149. surrogate cannot rehear, after affirmance, 1149. APPEARANCE: of parties in Surrogate's Courts, 85 et seq. effect of, 85. in person, 85. by attorney, 85. of infants by special guardian, 108. of nonresident aliens, by consul, 85, n. of idiots, lunatics, etc., 108. not a waiver of irregular service, 85, n. answering petition equivalent to, 85, n. party though not cited may appear, 105, 154a, 357, 958. See Parties. APPORTIONMENT: of commissions. See Commissions. ■ of rents, 492, 532, «. of dividends, 749. APPRAISER: of decedent's assets, 494. oath of, 494. APPRAISER — continued. compensation of, 494. fixing compensation of, 494. of value of estate subject to transfer tax, 719. APPRAISAL. See Assets; Real Estate, etc.; Transfer Tax. ARBITRATION: executor may submit claim to, 629, n. ARREST. See Attachment; Decrees and Orders. ASSETS: what are, to be accounted for, 529. interference with, before probate, 130, 131, 540, n. possession of, by executor before probate, 131, 562. coming into State after death, jurisdiction of surrogate over, 141, 142, 338. how disposed of, by ancillary executor, etc., 317, 795, n. defined, 338, 486. nine classes enumerated in statute, 488. object of statutory enumeration, 488. statute list not exhaustive, 488, interest in lands, 489, 530. leases for years, 489. estate from year to year, 489. estate pour autre vie, 489. remainder in term for years, 489. devised for years to executor to pay debts, 489. church pew, not, 489. proceeds of base fee not, 489. parol lease, 489. lease for indefinite period, 489. devised for life, then to be sold, 489. proceeds of realty, sold before resident's death, 489. vendee's interest in executory contract for land, not, 493, «., 530. proceeds of partition sale, 489, n. fixtures, defined, 490. declared assets, 490. when annexed for trade or manufacture, are, 490. others excluded, 490. as to certain, rule between landlord and tenant applies, 490. as to others, rule between grantor and grantee applies, 490. power of testator to declare by will what shall be deemed, 490. eflfect of contract of afBxment, 490. good-will of testator's business, 534. right to use of name, not, 534. literary property, 535. insurance policy payable to executors, 536. interest in policy on life of another, 536. on life of nonresident, 529, n. payable to widow, etc., how far, 536. special statutes as to such, 536. when specifically bequeathed, 536. against fire, distinction as to time of loss, 537. depends on character of property insured, 537. fire policy taken out by executor, etc., 537. benefit association fund, when not, 537o. trust deposit, 493, «., 537o. pension money, when, 538. government payment of Alabama claim, not, 538, n. damages for decedent's death, not, 539. contracts of decedent, 541 et seq. wrongs to decedent's property, 543. wrongs to his person, 544. things in action, 540. 1100 ge^eba. i^bex. ^tzz::' ASSETS — continued. disaifirming decedent's wrongful acts, 545. crops and produce, certain, declared assets, 491. cultivated and spontaneous, distinguished, 491. cultivated, are, 491. spontaneous, when severed, are, 491. sale of, effects a severance, when, 491. status of growing grain on land devised, 491. growing grass, 491, n. fruit when gathered, 491. rents are, if accrued at time of death, 492. must have been payable before death, 492. rule not affected by extension of payment of, 492. though if received after death must be accovinted for, 492. effect of rule as to apportionment of, 492. rents under lease from Indians, 492, n. things in action and other property, 493. representative's debt to decedent, when not, 496. gifts to representative by decedent, when, 529, n. gift for life of rents, not, 532. appraisal of, 494. appraisers to be appointed, 494. oath of, 494. compensation, 494. taxing bill of, 494. notice of, 494. who entitled to notice of, 494. notice must be posted, 494. effect of failure to post notice of, 494. where assets are in different places, 494. made in whose presence, 494. inventory of, duty of representative to make, 486. penalty for not joining in, 487. contents and form of, 495. disputed questions as to existence of assets, 495. assets, how enumerated in, 495. statement of values, 495. specification as to choses in action, 495. not only property exhibited, but all property, 529, n. claims against representative included, 496. effect of bequest, on such claims, 496. foreign assets may be included, 497, 529, n. representative not bound to include such assets, 497. duplicates to be signed by appraisers, 498. executor must verify and file, 498. must be filed within three months from issue of letters, 498. mistakes in, may be corrected, 498, 503. report of appraisers receivable as, 498, n. unverified list of assets, not treated as inventory, 498, n. supplemental, when necessary, 499. when to be returned, 499. when supplemental inventory compellable, 499. oath to inventory, 498. compelling return of a sufficient, 500. petition to surrogate for, 500. who may present petition, 500. order to return, or show cause against attachment, 500. order of surrogate on motion, 500. application, when to be made, 501. limitation of proceedings, 501. service of order to show cause, 501. disobeying order, how punished, 502. ASSETS — continued. order for attachment must be personally served, 502. excusing failure to return, 503. defenses to application, 503. questions arising on hearing, 503. extending time to return, 503. reference on application, 503, n. disposal of assets no excuse for failure to file, 503. amending inventory, 498, 503. surrogate may award costs, 504. rule in New York county, 504. defaulting representative, how discharged from imprisonment, 505. revoking letters after thirty days' imprisonment, 505. where citation cannot be served, etc., 505. exempt articles, estate of representative in, 506. executor, etc., entitled to, in order to inventory, 506. takes as trustee, 506. interest of widow, etc., in, 507. waiver of right by antenuptial agreement, 507, n. enumeration of, 508. widow may sell before inventory, 507. testator's will cannot defeat, 507. what ownership of testator necessary to entitle widow to, 507. right to, of widow's surviving minor children, 508. appraiser's estimate of value of, 508. surrogate may correct, 508. proceedings void, if articles exceed statute limit, 508. additional, selected in appraiser's discretion, 508. executor liable for excessive payment, 508. decedent must " have a. family," 509. need not have children, 509. nor be a householder. 509. nor be living with his family, 509. compelling setting apart of, 506, 510. petition for, 510. who may present, 510. decree may direct payment of value, 508, 510. same relief allowed on judicial settlement of account, 510, 985, n., 1009, n. effect of inventory as evidence, 511, 985. intended for whose protection, 511. only presumptive against person filing, 511, 985. how rebutted in action or special oroceeding, 511. not evidence against successor, 511. not conclusive against either party, 985. former rules of evidence preserved, 511, n. where inventory made by co-executors, 511. is prima facie eviderce of what, 512, 985. formerly impeachable only on accounting, 512. omission of executor to claim set-off to his debt, 512. of acknowledgment of barred claim, 512. where deposit in failing bank entered as cash, 512. relation of inventory to account, 985. assets not in inventory, 512, 987. rectifying erroneous debits, 512, 986. impeachment of, on accounting, 512, 985, 986. chattels subject to life estate, 987. discovery and collection of assets, 573. proceedings before letters, 562. pursuit of legal remedies in general, 5i62. special proceeding for, 573. See Discovery, etc.; Distribution. 1102 &ENEEAL Index. merences are ASSIGNEE: of creditor, as party to proceedings, 97. of legatee, as party to proceedings, 97. validity of transfer, 97. when may be questioned, 97. of executor's commissions, standing of, 54, n. payment of distributive share to, 97. of legatee, when may not compel payment of legacy, 97, 968. ATTACHMENT: for failure to return inventory, 502. for failure to obey order to account, 954. for neglect of temporary administrator as to deposit, etc., 420. effect, if warrant of, not served, 420, 421, 428. enforcement of decrees and orders by, 1084. by execution against person, 1084. on return of execution against property, 1094. without execution, 1094, n. by proceedings to punish for contempt, 1089, 1093. practice in such cases, 1093. warrant of, 1097. fine and imprisonment, 1095, 1098. AUDITOR: office of, no ]on2;er exists, 964. «. ATTESTATION. See Will. ATTORNEY: disqualification of surrogate in proceedings where he has acted as, 7. clerk of court cannot act as, 22. surrogate cannot act as, in his own court, 7, 8. surrogate's partner cannot act as, 85. appearance by, in Surrogate's Court, 85. control of surrogate over, 48. substitution of, power of surrogate as to, 48, 552. service of papers on, in surrogate's proceedings, 86. and testator, privileged communication between, 174, 176. employment of, when allowed as administrative expense, 552, 555, n., 1115. claim of, for services is primarily against executor personally, 552. lien of. See Executors, etc.; Surrogate's Court. ATTORNEY-GENERAL : citation to, on probate, 104, n., 158. when may intervene on probate, 104, n. may compel public administrator to account, 384. BENEFICIARY: when may sue for protection of trust, 602, n. BENEVOLENT SOCIETIES: bequests to, restrictions on, 260 ct seq. BEQUEST. See Legacy. BOARDING-HOUSE : keeper of, to report to public administrator, 388. BOND (OFFICIAL) : of surrogate, 28. where to be filed, 28. form and penalty, 28. county clerk, judge of sufllciency of, 28. justification of sureties, 28. filing and recording, 28. copy of, evidence, 28. of temporary surrogate, 28. of officer acting as surrogate, 28, 29. liability on, 30. for fund received from predecessor, 30, 66, n. ^'ZZZr Geneba. Index. 1103 BOND (0¥¥1C1KL) — continued. action on; leave to bring from what court, 30, 31. leave may be given without notice, 31. affidavit on applying for such leave, 31. vacating order giving leave, entered without notice, 31. order for prosecution, 32. proof in action on, 33. defenses to, 34. execution in, 35. apportioning recovery in, 36. of administrator of intestate, 470. statute requires, 470. to be filed with surrogate, 470. form and condition of, 470. must be joint and several, 470. penalty of, how determined, 470. rights and liabilities of sureties on, 466. modified security on limited letters, 471. restraint upon representative in such case, 471. modified security on consent of next of kin, 472. minimum amount of such security, 472. may be increased, 470, n. special, on selling, etc., lands, 869, 874, 876. condition and penalty of such bond, 473, 876. of administrator with will annexed, 474. requisites of, same as executors, 474. of temporary administrator, 475. sureties in, not discharged on accounting of principal, 422, n. requisites same as ordinary administrators, 475. effect of recitals in, on sureties, 422, n. of administrator de bonis non, 476. requisites same as ordinary administrators, 476. where estate partly administered, 476. penalty in such ease, 476. of ancillary executor or administrator, 477. requisites same as domestic administrator, 316, 477. special penalty of, 316, 477. when special penalty not required, 477. of executors, in general, not required, 302, 473. when necessary, before letters will be granted, 302, 473. when required of nonresident executor, 302, 473. provision as to, in will, 473. on stay of letters, 473. preventing revocation by giving, 440, 473. form and penalty of, 473. liability on, 466. special, on selling, etc., lands, 369, 874, 876. condition and penalty of such bond, 473, 876. court not authorized to impose condition not directed by will or law, 473. of general guardian of property, 478, 1027. form, condition and penalty of, 478. on receiving legacy, etc., 478, n. where trust company appointed, 1027, n. surrogate may limit penalty of. 478. amount of security on limited letters, 479. liabilities of sureties on, 480. for proceeds of real property paid to guardian, 478, n. of general guardian of person, 481. surrogate may require, 481, 1027. form, condition and penalty of, 481. of guardian by will or deed, 483. surrogate may require, 482. 1104 General Inbex. ^TZZm.' BOND (OFFICIAL) —cowtimted. upon whose application, 482. in what cases required, 482. required only in cases where executor required, 482. requisites same as surrogate's guardians, 482. rights and liabilities of sureties on, 482. failure to give, ground for removal, 482. of guardian ad litem, 483. no statute as to, in Surrogate's Court, 483. of testamentary trustee, 484. surrogate may require, when, 484. upon whose application, 484. requisites of, same as executor's, 484. failure to give, ground for removal, 484. only those appointed by will may be required to give, 484. only required in a case where executor required, 484. breach of trust, not a ground for requiring, 484. of freeholder, selling, etc., lands, 877. of county treasurer acting as public administrator, 382. form and general requisites of, 456. must be joint and several, 457. must be executed as a dsed to be recorded, 456. number and qualifications of sureties, 457. aflidavit by sureties, 457. justification of sureties, 457. as to husband or wife as surety, 457, n. where bond is over $5,000, 457. rule in New York county, 457, n. bond by surety company, 456, 458. how such bond executed, 458. bonus to surety company, 459. deposit of securities to reduce penalty of, 460. such securities, how withdrawn, 460. order therefor, 460. approval and filing, 461. liability of surety in, 466, 468. petition for new bond or sureties, 462. who may present such petition, 462. citation on such petition, 462. order thereon, 463. dismissal on filing bond, 463. effect of failure so to renew, 463. no provision for renewal on death of surety, 462, ». petition by sureties to be released, 464. who may present such petition, 464. accounting required, 465. sureties released or letters revoked, 465. to what bonds remedy applicable, 464. extent of liability on, 466. where difierent letters issue, 466. remedies available on, 467. not barred by principal's imprisonment, 469, action on, after execution unsatisfied, 467. to be in whose name, 467. defenses in such action, 469. action on, by successor, 467. for what causes permitted, 467. recovery therein, 467. action on, after revocation, 467. by whom maintained, 467. leave to bring. 467. recovery therein paid into court, 467. distribution of such recovery, 467. BOND (OFmClAh) — continued. condition of surety's liability, 468. sureties in, concluded by decree, 469. rights of surety on paying judgment in such action, 469. when right of action accrues, 468, n. svirety's ignorance or mistake no defense, 469. sureties estopped to deny jurisdiction, 469. contribution bv co-sureties, 469. BOOKS AND PAPERS: books to be kept by surrogate, 24. to be properly indexed, 24. always to be open for inspection, 24. custody and renewal of surrogate's records, 27. surrogate to preserve papers, 26. to be delivered by surrogate to his successor, 26. discovery of, for use on trial, 127. power of surrogate to direct deposit of, 127. BURDEN OF PROOF. See Evidence. BURIAL PLOT: expense for, when allowed against creditors, 550. CANONS OP INTERPRETATION: of wills. See Wills. CASE: on appeal; when required, 1143. how made and settled, 1143. exceptions on making, 1143. request for findings on making, 1143. enlarging time for excepting and making, 1143. settlement of, 1143. CAVEAT: against probate, before Revised Statutes, 133. by whom filed, 133. abolished, 133. CERTIFICATE: of surrogate's disqualification, 11. indorsed on will, after probate, 246. contents of, 246. CHARGE: of legacies on land. See Legacy. of debts on land. See Real Estate, etc. CHARITABLE BEQUEST: to literary institutions, 260. lestrictions on, 260 et seq. limitations on, 267. how far valid, 267. to foreign charities, 267. exempt from inheritance tax, 708. CHILDREN: meaning of, in will, 269, n. exempt from legacy tax, when, 705. adopted. See Adoption. CITATION: power of surrogate to issue, 52. special proceedings commenced by, 68, 69. petition a preliminary to, 72. issuing of, 72, 73, 74." order for, iinnecessarj', 73. form and contents of, 74. varies according to proceeding in which employed, 74. returnable, before whom, 74. return day of. 74. proceedings on return of, 85. 70 1106 Ge^eba. I^b.x. ^Tsmir CITATION — continued. to a class where names are unknown, 75. original to be filed, 85. service of, 76. may be served in any county of the State, 76. must be served within sixty days, 70. personal, within State upon natural person, 76. upon corporations, infants, and incompetents, 77. by whom made, 159. rule in New York county, 76, n. substituted, when permitted, 78. by publication, when permitted, 79. how such service made, 82, 83. without the State, 82. within the State,- in such case, void, 76, n. where residence or person unknown, 80. contents of order of publication, 81. delivery or deposit of copy in such case, 81. when copies of papers must be served, 82. when service of publication complete, 81, n. provision for publication in State paper, repealed, 83, n. return of such service, 82, n. irregularities in, waived by answering, 76, n. classes of persons to be ser\'ed with, on probate, 157. on public "administrator, when, 158. on consul, for nonresident alien, when, 76, n. on attorney-general, when 104, n., 158. proof of service, 76. admission of service, 76. waiver of service, 84. when jurisdiction complete, 76, n. on probate, contents and service of, 159. for revocation of probate, 283. persons to be served, 282. effect of service of, on executor's proceedings, 284. for ancillary letters, 314. CLAIMS OF CREDITORS. See Belts. GLASS: legacy to a, 269. citation to, 75. CLERK: for surrogate's office, 20, 21. of Surrogate's Court, 20, 21. appointment and powers of, 20, 21. removal of, 20. surrogate's liability for acts of, 23. .additional powers of, in probate cases, 21. disabled to act in certain capacities, 22. requiring security from, by surrogate, 20, 23. fees of, 39. emplo^Tment of. by executors, etc., 558, See Surrogates' Crnirts. CODICIL: defined, 231. how executed, 231. effect of, on will, 223, 231. effect of revoking will upon, 226. republication of will by, 197, 231. term " will " includes, 232. revocation of, 230. propounding, 232. instrument, referred to in will distinguished from, 233. See Prolate; Will. ''T^::nZ'' Geneba. Inbex. 1107 COLLATERAL INHERITANCE TAX. See Transfer Tax. COLLATERAL RELATIVES : right of, to share in intestate's real property, 801. to share in intestate's assets, 831. doctrine of representation stated, 802, 818. limitation on representation among, 818. computing degrees of kindred, 820. table showing mode of distribution among, 820. See Intestate Succession. COLLEGES AND UNIVERSITIES: beqi'.est to, 264. COMMISSION: to take testimony, surrogate's power to issue, 124, 127. COMMISSIONS: law in force at accounting governs, 990, n,, 1002. Of testamentary trustees, same as those of executor, etc., 990. Of executors and administrators, rate of, 988. ground of right to, 991. when surrogate no power to withhold, 991. doctrine of common law as to, 991. statute allowance exclusive, 991, 992. transferable nature of right to, 991, n., 1005, n. of insolvent executor, etc., to be applied on his debt to estate, 991, n. election between, and provision for, in will, 557. n., 992. time within which election to be made not limited, 992, n. compensation by will regardless of statute, 993. when representative estopped from claiming, 994. assignee of, cannot object to order denying, 54, n. forfeiture of, on resigning before completed administration, 995. by refusing to join in inventory, 995. gross mismanagement of estate, 995. wrongfully withholding assets, 995, /■.. double, when executor acting as tru>stee entitled to, 996. allowed only where the two offices are separable, 996, 997. where office of trustee succeeds that of executor, 997. when annual income exceeds $100,000, 999. when executor acting as guardian, entitled to, 1040, n. half, when only allowable, 998. ~ when each of several executors, etc., entitled to, 998. full commissions on estates over .$100,000, 999. apportionment in such case where more than three executors, etc., 999, 1003. value of estate in such case, how and when estimated, 999. must be " over all debts," 999. real estate equitably converted regarded aa personalty, 999. on successive letters, in one capacity only, 1000. at election of executor, etc., 1000. applies only where two sets of letters are issueil, 1000. on trust income, 999, 1001. out of what fund paid, 1001. annual rests, 1001. when not allowed, 1001. basis for computing, 1002. on securities, 1002. rents of land occupied by life tenant. 1002. n. on proceeds of land directed to bo sold, 1002. real property unsold not to be considered, 1002. on debt due representative from estate, 1002. on amount charged against representative for losses, 1002. on assets having only a constructive value, 1002. ■//,. on purchase price of land sold, subject to mortgage, 1002. assets specifically bequeathed not subject of, 1002. nor property inventoried but not sold, 1002. 1108 GE.EBAI. Index. TSJ" COMMISSIONS — continued. legacies not subject to charge for, 1002. nor deductions for advances, 1002, ■«. reinvestment of principal not ground for allowing, 1002. amounts paid in satisfaction of dower, 1002. apportioning among several representatives, 999, 1003. of three commissions, 1004. payable only on accounting, 1005. counsel fees and expenses an addition to, 552, 989. Of gua/rdian of infant, same as executors, 1038. not allowed for extra services, 1039. not to be computed till end of guardianship, 1040. principles governing computation of, 1040. when denied compensation, 1038, n. of temporary guardian, 1040. on annual statements, 1041. of testamentary guardian, 1066. Of public administrator, in New York county, 386, 397. in Kings county, 402. Of county treasurer, on transfer taxes collected, 734. as public administrator, 384, 385. Of comptroller, on transfer taxes collected, 734. COMPROMISE: of debt due estate, surrogate's power to authorize, 629. of claim against estate, surrogate has no power to direct, 629. executor may, 606, n., 629. application to surrogate for leave to, how made, 629. when called in question, 629. CONDITIONAL WILL. See Will. CONSOLIDATION: of proceedings on probate, 155. on accounting of representative, 955. of representative of deceased representative, 956. when cannot be effected, 955. proceeding in such ease, 955. supplemental citation to issue on, 955. CONSTRUCTION. See Will. CONSUL: foreign, right of, to intervene, 150. right of, to letters on estate of alien, 344, 470, n. to assets of alien, 344, n., 1012, n. to appear for foreigner in proceedings by public administrator, 391, n. CONTEMPT: power of surrogate to punish for, 52, 1089. in disobeying order or decree, attachment for, 954, 1089, 1093, 1095. attachment for, when issuable, 1094. for not returning inventory, 502. for not filing account when ordered, 954. for default as to deposits, 420. discretion of court, 1096. fine or imprisonment, 1095. service of, 1097. commitment under, 1096, 1098. See Attachment; Decrees. CONTEST. See Probate. CONTESTANT. See Probate. CONTRACTS: survival of rights under, 541. by decedent for purchase of land, executor may perform, 630, n. extent of executor's liability upon decedent's contracts, 637. upon their own, 606. CONVERSION: of real into personal property, 269, 529. when real estate is an asset, and vice versa, 531. COPARTNERSHIP. See Assets; Debts; Executors, etc. CORONER: in New York, to report inquests to public administrator, 388. CORPORATION: service of citation on, 77. what a sufBeient designation of, in will, 274. bequests to, validity of, 268. COSTS: in action by or against executor, etc., 571, 656. plaiutiflf, when to give security for, 572. in action on claim unreasonably resisted, 656, n. personal liability of representative for, 657. on reference of disputed claim, 656, 657. whether discretionary or of right, 656, 657. referee's fees and disbursements, 659, n. question for the court, not the referee, 660. certificate for, 660. in Surrogates' Courts, 1099 et seq. of appeal from Surrogates' Courts. See Costs of Appeal. COSTS IN SURROGATE'S COURT: Award of, under former laws, 1099 et seq. general sections of Code inapplicable to, 1103. formal rules as to, superseded by Code, 1103. security for, surrogate cannot require, 1103, «. by intermediate order, 1104. is discretionary, and may be awarded to any party, 1104. maximum amount of, 1104, 1117. upon motion for new trial upon a case, 1117. on dismissal of proceedings, 1105. may be absolutely, or to abide event, 1104. how collected, 1104. want of jurisdiction as affecting, 1105. by decree, generally discretionary with surrogate, 1106, 1118. when a matter of right, 1106. on special direction of appellate court, 1106, 1107. to successful party on jury trial, of course, 1106. in contested probate case, restricted, 1106. to contestant on probate, 1106, 1112. in general cannot be made to unsuccessful contestant, 1106. nor to a person not a party, 1106, n. contestant may be charged personally with, 1112. on new trial, after appeal, 1108. where one named as executor propounds will, entitled of course, 1110. otherwise where propounded by third persons, 1110. where executor contests proof of subsequent will, 1110. on jury trial in proceedings to sell lands, etc., 1109. of appeal after jury trial in such proceedings, 865. to special guardian.? must be fixed by surrogate, 1111. on appeal, 1119, n. for services on appeal, cannot be made by surrogate, 1111. on probate, 1106. on accounting, 1111, n. in transfer tax proceedings, 1111, n. on proceedings to sell lands, etc., 904, n. on application for, or revocation of, letters, 1113. on transfer tax proceedings, 733. on accounting proceedings, 1114. additional allowance on, 559, 1115. to accounting party, 559, 1115. 1110 ge^eba. inbex. T;:sr COSTS IN SURROGATE'S COURT — cmtinued. when charged against representative personally, 1114. when against contestant personally, 1114. should be to parties, not to counsel, 1105, n., 1115. where no objections filed, no allowance to legatees, etc., 1104, n. nor where account has not been surcharged, 1114, n. may be payable out of estate, or by party personally, 1116. where accountant has been removed, 1114, n. restricted, where estate less than $1,000, 1116. direction for payment by temporary administrator, 414, 870, »., 1116. on proceedings to sell lands for debts, 904. Amount of, 1117 et seq. provisions as to, apply to hearing before referee, 1118, n. includes disbursements, 1118. in contested eases, 1118. on motion for new trial upon a case, 1117, 1118. upon appeal, 1119. rule in New York county as to taxation of, 1118, n. to be fixed by surrogate and inserted in decree, 1118. security for, no statutory provision for, 1103, n. stay of proceedings to collect interlocutory, 1090. COSTS OF APPEAL: special direction by appellate court, 1106, 1107. award of, is discretionary with appellate court, 1107, 1119. may be awarded to either party, 1119. to infant respondents, when, 1119, n. on appeal from order for new trial in proceedings to sell, etc., 865. absolutely, or to abide the event, 1107. payable out of the estate or by party, 1107. effect of failure of appellate court to award, 1107. to special guardian, surrogate no power to award, 112, 1111. not made on new trial after reversal, 1108. where judgment appealed from is reversed, 1107, n. COUNSEL FEE: allowance of, on settlement of account, 552, 554, it., 1115. COUNTERCLAIMS: in actions by or against executors, 569. in proceedings on rejected claims, effect upon questions of costs, 659. COUNTY CLERK: when to docket money decree, 1091o. COUNTY COURT: supplementary proceedings in, on surrogate's decree, 1092. jury trial in, after appeal from surrogate's court, 1146. on proceedings to sell, etc., lands, 121, 863. COUNTY JUDGE: when to act as surrogate, 1, 4. COUNTY TREASURER: right to administer, after creditors, 344, 378. on estate of absentee, 404. may receive letters of administration, etc., 344. functions of, as public administrator, 381. deposit of legacies to minors with, 792. decree for payment of unclaimed legacy to, 1012. when made, 1012. how such legacies paid out, 1012. to receive proceeds of lands sold for debts, 893. securities in such proceedings to be in name of. 898. duty of, as to investing widow's dower, etc., 899. deposit by, of infant's share in proceeds of sale, 900. may intervene on accounting, on question of transfer tax, 970. proceedings thereupon. 970. commissions of, in such cases, 734. COURT OF APPEALS: appeals to, in cause originating in Surrogate's Court, 1147. See Appeals. CREDITOR OF DECEDENT: as party to proceeding in Surrogate's Court, 96. proof of character as such, in proceeding, 96. assignee of, as a party, 97. intervention of, 106. when unknown, service of citation on, 80. domestic, protection of, where ancillary letters issue, 314. may apply for probate of will, 96, n., 148. for appointment of administrator, c. t. a., 329, 331. for letters of administration, 350. for accounting, 936. Claims of, liquidation of, 636 et seq. publication of notice to present claims, 636. in what papers published, 636. presentation of claim of, 637. what claims need not be presented, 637. may be presented, 637. when claims may be presented, 637. effect of omission to present, 639. kind of proof required, 640. acceptance or rejection of claim, 645. what amounts to a rejection, 648. rejection of claim may be waived, 649. compromise of claim, 629. determination of, by surrogate, upon consent, 645. surrogate has no jurisdiction except upon consent, 49, 968, 969. determining disputed claim by reference, 650 et seq. steps necessary to confer jurisdiction, 651. what claims may be referred, 650. order of reference and hearing, 651. judgment on referee's report, 655. awarding costs to successful party, 656, 657. action on disputed claim, when barred, 639, 646. Payment of claim of, by representative, 662. what law governs as to priorities between, 662. order of priority, 663. different classes of preferred debts, 663. out of what fund payable, 672, 673. mortgage debts, 675. partnership debts, 676. judgments against representatives, 667, 677, 678. vendor's lien on sale of realty, 675, n. by ancillary executor, etc., 317. by temporary administrator, 417. Compulsory payment of claim, 679 et seq. by execution on judgment against executor, etc., 679. application for leave to issue execution, 679, 680. in case of judgment for legacy or distributive share, 682. by execution on judgment against decedent, 683. application for leave to issue execution, 683, 684, 687. to whom application made, 683, 684, 687. when execution issued without leave, 686. by order of Surrogate's Court, 689. nature of the proceeding, 689. power of surrogate in such proceeding, 692. when proceeding must be dismissed, 691. effect of denial of application, 693, n. effect of decree as evidence of assets, 695. decree will protect representative, 695. 1112 GB.BBA. INBEZ. TSJ" CREDITOR OF DECEDENT — continued. docketing decree for payment, 696. enforcing decree for payment, 696. See Debts J Decrees. CRIME: conviction of, as affecting competency of executor, etc., 303, 307, 361. CRIMINAL CONTEMPT. See Contempt. CROPS: when are assets to be included in inventory, 491. cultivated and spontaneous, distinguished, 491. cultivated, deemed assets, 491. spontaneous, when severed, are assets, 491. sale of, effects a severance, when, 491. status of growing, on land devised, 491. growing grass, 491, n. fruit ungathered, 491. included in conveyance on sale, etc., of land for debts, 889. CURTESY: estate by, not affected by statute of descent, 813. right of, does not prevent sale, etc., of lands for debts, 841, n. husband having, in surplus of lands sold, etc., for debts, may receive gross sum, 901. OY PRES: doctrine of, has no place in our law, 268, n. DAMAGES: for causing death, not assets to be inventoried, 539. See Assets. DATE: of will may be corrected by parol evidence, 272, n. DEATH: damages for causing, not assets, 539. of party in Surrogate's Court, effect of, 101 et seq. of witness to will, effect of, 166, 169. words in will referring to, relate to time of testator's death, 269. of decedent, burden of proving, 186, 351. presumption of, 186, 351. fact of, jurisdictional, 186, 342, 351. sufficiency of proof of, 186, 351. means actual, not civil, 342. civil, does not confer jurisdiction, 342. DEBT: defined, 145, n. is personal property, 145. DEBTS OF DECEDENT : to be paid with diligence, 631. whole estate liable for, 661. old system of preferential administration described, 631, 632. action by creditor; pleas and proceedings therein, 631. present system aims at equality, 633. is under control of surrogate, 633. necessity for ascertaining amount of assets, 634. as well as amount and nature of debts, 634. restrictions on creditor's actions to compel payment, 635. execution allowed only on leave, 635. costs not recoverable, except, etc., 635. right of action not absolutely suspended, 635. notice to present claims, 636. application for leave to publish, 636. may be published at any time after letters, 636. in what papers published, 636. contents of notice, 636. DEBTS OF DECEDENT — continued. errors in notice immaterial, 636. no absolute obligation to give, 636. presentation of claims, by creditor, 637. when claims may be presented, 637. ' bill of particulars may be required, 640. what claims need not be presented, 637. what claims may be presented, 637. decedent's joint obligation, 638. contingent obligations, 638. includes those both legal and equitable, 638. as to unliquidated claims, 638. tolls, 638. effect of not presenting, 639. when action barred, on failure to present, 639. proof of claim, 640. vouchers demandable, 640. effect of verifieation, 640 what proof representative may demand, 640. allowance by representative implies nonpayment of claim, 640, n. of personal claim of representative, 641. power of surrogate to determine such claim, 49, 642, 972. power does not include joint claim of representative and an- other, 642, 972. representative cannot retain personal claim, 641. character of proof of such claims required, 643. suspension of limitation against such claims, 644. acceptance of claim, 645. dispute or rejection of claim, what amounts to, 648. unreasonable, effect of, 656, 657. short limitation of action in case of, 639, 646. extent and application of such limitation, 646. when statute begins to run, 647. what amounts to a. rejection of claim, 648. mere silence of representative not an admission, 648. may be oral or written, 648. must be made to claimant or his agent, 648. waiver of statute, 649. agreement to determination of claim by surrogate, 645. effect of failure to agree, 639, 645, 656, »., 660. reference of disputed claim, offer of, 650. agreement for, 650. approval of referee, 650. entry of order in Supreme Court, 650, 651. form of order, 651. what claims referable, 650. steps necessary to confer jurisdiction, 651. naming the referee, 652. proceedings before referee, 653. powers of referee, 653, 654. defenses of representative, 653. effect on proceeding, of amendment of 1893, 654. referee's report and judgment thereon, 655. report need not be confirmed. 654, 655. appeal from judgment, 654, 655. allowing; costs, 656, 657. rule prior to amendment of 1893, 656. present rule as to costs, 656. where allowed and by whom. 657. extra allowance may be granted. 657. three conditions necessary to obtain costs, 657 et seq. to what actions conditions apply, 657. 1114 General Index. ^tZZZT^ to sections. DEBTS OF DECEDENT — continued. claimant must recover more than $50 to receive costs, 657. claimant entitled to disbursements, 659, n. compromise of claim, 629. executor has power for, 606, n., 629. surrogate's power to authorize, 629. does not extend to claims against estate, 629, 645, n. when called in question, 629. order of preference of, what law governs, 662. as between foreign and domestic creditors, 662. order of preference stated, 663. at common law, 663. testator cannot create different order by will, 663, n. funeral and administration expenses first, 663. other preferences prohibited, 664. rents on leases, 6C4, 670. pew rents, 670, n. status of debts not due, 664. debt in judgment, 664. debt due representative, 664. preference under United States laws, 665. taxes and assessments, 666. ■judgments and decrees, 664, 667. different rule of priority where property acquired after judg- ment, 667, n. expiration of lien of judgment immaterial, 667. judgment against representative, 667. judgments for costs, 667. status of judgments entered after party's death, 668. award in arbitration not a judgment, 667, n. foreign judgments, 669. judgments of Federal courts, 669. debts by specialty, 671. j)aymeiit, from what fund, 672, 673. personalty primarily liable, 673, 834. but not when land specially charged with, 673. land descended liable before that devised, 672, 674. land not charged with legacies before land so charged, 673, n. residuary legacies before general legacies, 680, n. common-law rule, how far applicable, 673. where personalty specifically bequeathed, 673. regarded as realty, 673. real property equitably Converted, 673. where assets are insufficient, 674. when out of rents of real estate, 674. out of proceeds of sale under a power, 674. mortgage debts, 675. deficiency on foreclosure, 675, n. vendor's lien on sale of realty, 675, n. copartnership debts, 676. judgments against representatives, 667, 677, 678. by ancillary executor, etc., 317. by temporary administrator, 417. by public administrator, 395. compelling, jurisdiction of surrogate as to, 44, 689. by execution on judgment against executor, etc., 679. surrogate's leave for execution necessary,' 679, 680. in whose name issued, 679. to what claims applicable, 680. for what sum issued, 680. more than one may issue, 680. no execution for costs, when, 680. DEBTS OF DECEDENT — cojitiwted. time to apply for leave, 681. surrogate may require intermediate account, 681. pending appeal from judgment, 681. notice of application, 681. order on, appealable, 681. execution on judgment for legacy or distributive share, 682. undertaking on granting, 682. form of, 682. by execution on judgment against decedent, 683. continuance of lien of judgment, 68,5. leave necessary from court rendering judgment, 683, 684, 687. also from Surrogate's Court issuing letters, 683, 684, 687. what time must have expired since death, 683. ■when execution issued without leave, 686. leave, how obtained from court rendering judgment, 687. notice of application, to whom given, 687. how given, 687. application to surrogate; by petition and citation, 687. contents of petition, 688. to whom citation directed, 688. surrogate may require intermediate account, 688. power of surrogate on application, 688. when proceeding will be dismissed, 688. decree of surrogate permitting, 688. by original proceeding before surrogate, 689. as to what debts, 689. after six months from letters, 690. by whom made, 690. citation to show cause, 690. dismissal of proceeding on the answer, 691. form of answer, 691, 693. rules as to claims in judgment, 692. powers of surrogate on application, 692. where appeal from the judgment is pending, 692. as to claims, not in judgment, 693. denial of application not conclusive, 693, n. dismissal for want of assets, 694. burden of proof, as to assets, 694. surrogate may require intermediate account, 694. petition cannot pray for intermediate accounting, 694. limitation of proceeding, 694. decree, conclusive evidence of assets except on appeal, 695, 872. how far provisional, 695. docketing and enforcement of decrees, 696. not enforceable by supplementary proceedings, 696. form of transcript, 696. eflfeet of docketing, 696. DEBTS INCURRED BY REPRESENTATIVE: for funeral expenses of decedent, 546. for expenses of administration, 552. for employment of counsel, 552, 555, «., 1115. for employment of clerk or agent, 558. for personal services of representative, 557. on contract for benefit of estate, 606. for borrowed money, 607. on continuing decedent's business. 610. when personally liable on, 546, 552. DEBTS DUE TO ESTATE: with respect to personal property, 529. to real property, 542. to decedent's partnership property, 533. 1116 GB.EBAL INBEX. TSJ" DEBTS DUE TO ESTATE — continued. to property in action, 540. to property held in common, 533. to injuries to decedent's person, 544. to wrongs to decedent's property, 543. survival of right of action on decedent's contract, 541, 564, 638. actions by representative to collect, 564 et seq. beneficiary cannot maintain, 99, n. compromise and compounding of, 629. uncollectible, stale or douDtfiil, may be sold, 599, 629. representative's debt to estate, 628, 972. surrogate may determine validity, 49, 628. liability of representative for loss of, 628. by representative, application of commissions to, 991, n. DECISION: of surrogate, form and contents of, 114. to be filed, 114. on probate generally, 243, 244. all issues to be decided in, 244. ground of, to be entered, 244. may contain findings stated separately, 114. separate findings only necessary in case of appeal, 114, 1143, n. of referee, 118, 977. need not state findings separately, 118. DECLARATIONS. See Evidence. DECREES AND ORDERS: intermediate and final orders distinguished, 1088. must be signed and recorded, 1088. may be signed, during vacation, out of surrogate's county, 6. orders and decrees defined, 1088. conclusive effect of, in general, 1069. in the nature of judgments in rem, 1069. on probate, as to personalty, 247, 1070. except on appeal, 1070. distinction as to, where construction or validity of will in- volved, 1070. decree of probate of another State, 1070, n. of wills of realty under Revised Statutes, 1071. where will proved on testimony of subscribing witnesses, 1071. by other evidence, 1071. under the Code, 1071. decree evidence against whom, 1071. of letters testamentary, 1072. transcript of decree to be recorded, 249. on judicial settlement of executor's, etc., account, 1073. effect of, to protect or charge accountant, 1073. how far conclusive in general, 1074. on sureties upon accountant's bond, 1076. as to payment to creditors, 1075. effect of, as bar to action, 1074, 1075, ». conclusive as evidence only, 1076 on accounting by one of two executors, 1074, n. testamentary guardian, 1065. on successive accountings, 1074, n. opening, amending, vacating, etc., power of surrogate as to, 44, 52, 54, 425, 1077, 1081. on probate by motion, 276, 425, 1076. by direct proceedings, 277, 429 et seq., 1077. limitation of proceeding in probate, 279. effect of decree of revocation of probate, 287. notice of revocation to be published, 288. ''tiTcZnZ' G.NEBAL I.B.X. 1117 DECREES AND ORDERS — continued. application of doctrine of estoppel to prevent, 1075, n., 1077. in general, is discretionary, 54, 276. distinction between power to open, and to grant new trial, 1077, n. power to be cautiously exercised, 54, 1077. that decree is based on erroneous theory, no ground for, 54. that no guardian was appointed for incompetent, ground for, 108, n. application to open, etc., how made, 55. when granted, or refused, 54. grounds for, 1077, n. laches as ground for refusal, 55, 1077. not affected by limitation of time applicable to judgments, 54, 55, 279. after appeal, 1077. after time to appeal expired, 1077, n. when decree void, for want of jurisdiction of the subject- matter, 54, 1078. of the parties, 54, 1082. decrees must have been a judicial act, 1080. impeaching by collateral attack, 1078. when proof outside the record admissible, 1081, n. principles governing, 1079, n. burden of proof on, 1081. recitals in pleadings as evidence of facts, 1079, 1081. in decree, effect of, 77, «., 1081. rules as to effect of, in decrees, etc., 1081. effect of defective, on process issued, 1082. effect of, where all parties in interest not cited, 1082. effect of irregularities and omissions not jurisdictional, 1083. objection available only on appeal, 1083. or by amendment, 1083. enforcement of, 1084, 1088. under Revised Statutes, 1084. by attachment and execution against person, 1084. by action on bond, 1085. both remedies might be pursued together, 1085, «. by execution against property, 1086. by action on the decree, 1087. under the Code of Civil Procedure, 1088. of intermediate orders, 1089. costs on such proceeding, 1089. by proceedings for contempt, 1089. of order for costs, 1089, 1090. by execution, 1090. by stay of proceedings, 1090. of final orders for money, when docketed, 1091. may be satisfied in same manner as a judgment, 10910. docketing order for money, 1091o. execution thereon, 1090, 1092. how issued, 1092. execution irregular, unless decree docketed, 1092, 1094. when leave to issue necessary, 1092, n. supplementary proceedings may 'be instituted, 1092. proceedings to punish for contempt, 1093. does not apply to order for costs, 1093, n. ' by action on bond of ofiScial, 467, 1091. when attachment will issue without execution, 1094, n. of orders other than for money, 1093. by proceedings for contempt, 1093. 1118 G..BBA. INB.X. ^T:x>r DECREES AND ORDERS — continued. certified order to be served before proceedings, 1093. how proceedings conducted, 1093. final process against person, 1094. by attachment on return of execution unsatisfied, 1094. when will issue without execution, 1094, n. demand necessary before attachment, 1094. when warrant to commit issued without notice, 1094. order to show cause; for contempt, 1095. hearing and determination on return of, 1095. by fine or imprisonment, 1095. defenses to proceeding, 1095. commitment discretionary with surrogate, 1096. warrant of attachment; to whom directed, 1097. may be executed in any county, 1097. liability of sheriff for default in executing, 1097. commitment with benefit of jail liberties, 1098. undertaking for release, 1098. DEED: of lands sold to pay debts, etc., 887. See Real Estate, etc. DEFINITIONS: "alien," 305. " ancestor," in statute of descent, 807, n. " assets," 340, 486. "children," 269, n. " contested probate," 290, n. "death," 342. " estate " under transfer tax act, 699. "executor," 291, 513. " fixtures," 490. " having a family," respecting exempt articles, 509. " heirs-at-law," 92, 269. " inheritance," under statute of descent, 796, n. " intestate," 338. " issue," 269. " legal heirs," 269, «. " judicial settlement," 912, n. " letters testamentary," 290. " lineal descendant," under transfer tax act, 705, n. " money," 269, n. " natural heirs," 269, «. " next of kin," 93, 269. " now," in wills, 269, n. " persons interested," 98, 143, 437, 934, 936. " personal property," 145, 340. " presenting for probate," 290, n. " probate," 290. " property " generally, 486. under transfer act, 699, 704. " real estate," under statute of descent, 769, n. "relations," 269. " relatives," in statute of distribution, 816, n. " representatives," 528. " residence," 341. , " testamentary trustees," 319, «., 924, n. " to admit to probate," 290, n. " to attend probate," 290, n. " transfer," under transfer tax act, 701. DEGREE OP CONSANGUINITY: how computed, 820, DELEGATION: of right to letters, none, 349. of appointment of executor, 513. of power, by executor, 513, 594. of Bale, 594. DEMURRER: unknown as such in Surrogates' Courts, 87. DEPOSIT: of moneys and securities paid in Surrogates' Courts, 66. liability of surrogate for, 66, n. of securities to reduce penalty of bond, 460. of moneys and property on disagreement of executors, 520. of moneys, duty of representative as to, 618. with countj'' treasurer of imclaimed legacy, 1012. how such deposit withdraT\'n, 1012. by temporary administrator, 419. liability of representative for loss of, by failure of bank, 618. and custody of will, 64a. fees for deposit of wills, 64o. to whom will returned, 64a.. of books of estate, power of surrogate to direct, 127, 520. DEPOSITARY: protected in paying moneys to foreign representative, 518, n. DEPOSITIONS: taking, in the State for use in Surrogates' Courts, 123. in another county, 125, 167. without the State, 124, 127. by commission, 124, 127, 166. by letters rogatory, 124, 127. by open commission, 124. as proof in probate proceedings, 160, 166 et seq. DESCENT: statute of, 796. See Intestate Succession. DESIGNATION: of beneficiary in will, 274. of parties to appeal, 1135. of officer to act as surrogate, 14. of surrogate, official, 4. DESTROYED WILL. See Lost Will. DESTRUCTION: of will, how proved, 237. See Lost Will. revocation by, 224, 225. DEVISE: validity of, as incident to partition, etc., 60, 137. how questioned, 60. action to determine validity of, 60, 137. who may bring, 60, 137. proof in, 137, n. judgment in, 137. lapsed, falls into residuum, 769. validity of, not to affect right to probate, 244, n., 255, n. suspension of power of alienation of, 261. restrictions on power to create trusts bv, 260. DISABILITY: of surrogate, 7. See Surrogate. of executor, 303. by reason of drunkenness, improvidence, etc., 303, 307. nonresident aliens, 302. adversity of interest, 308. 1120 Geneeal Index. ^VtZ'LT to sections. DISABILITY — continued. infancy, 303. conviction of crime, 303. removal of disability, 306. of witness, examination in case of, 166 et seq. DISAGREEMENT: of executors, surrogate may order deposit of property, 520. DISCONTINUANCE : of proceedings for probate, not allowed, 156. DISCOVERY AND COLLECTION OP ASSETS: proceedings before issue of letters, 562. pursuit of legal remedies in general, 562. actions to be brought, in what capacity, 567. limitation of actions, 565. special proceeding for, when concealed, etc., 573. by whom maintained, 573. object of the proceeding is twofold, 574. is to determine possession, not title, 579. debts due decedent cannot be recovered by, 574. petition for, 575. if more than one representative, all must join, 575. cannot be maintained bv one representative against another, 575. to whom petition presented, 576. substitutes, in case of surrogate's absence, 576. powers of substitute, 576. evidence accompanying petition, 577. citation, Avhen will be denied, 577. when will issue, 578. must be issued by surrogate, not his clerk. 578, n. when person cited resides in another county, 578. service of citation, 578. order to attend in addition to, 578. citation and order must be personally served, 578. service ineflfectual unless accompanied by witness fee, 578. failure to attend, how punished, 578. answer, dismissal on, 579. laches as a defense, 577. various defenses, considered, 579. issue as to title, not triable, 579. how such issues raised, 579. may be received pendiijg examination, 579, n. examination, how conducted, 580. evidence on, 580. refu.sal of witness to answer, how punishable, 580. •surrogate acts judicially on, 580. limited to personal property, 580. decree for possession, 581. contents of, 581. secvirity to prevent decree, 582. effect of giving security, 582. giving security, cannot be compelled, 582. form of bond, 582. enforcement of decree, 583. decree not an adjudication of title, 581, n. warrant to seize property, 583. to whom issued, 583. , execution of, 583. proceedings by public administrator, 376. DISCOVERY OF BOOKS AND PAPERS: surrogate's power to compel, 127. DISCOVERY or WILL: custodian of will may be compelled to deliver up for probate, 129. DISINHERITANCE : effect of, upon intestate succession, 826. DISPUTED CLAIM: of creditor, no power of surrogate to determine, 49, 968, 969. of distributee, 968, 969. of legatee, 44, 784, 968, 969. surrogate's jurisdiction as to, on accounting, 645, 968, 969. on proceeding to sell lands, etc., 858. reference of, etc., by consent, 650. DISQUALIFICATION : of surrogate, 7, 8. See Surrogate. of executors, etc., 303. See Letters Testamentary. of witness, 170, 171, 172, 174, 176, 213 et seq. DISTEIBUTION OF PERSONAL PROPERTY: none, without administration, 833. intestate defined, 338. partial intestacy, 817. origin and policy of statute of distribution, 816. is governed by law of intestate's domicile, 795. of nonre.sident, when will be made here, 795. classification of kindred entitled to, 816. order of distribution stated, 816a. right to share vests on intestate's death, 818. doctrine of representation, 818. how far representation restricted, 818. computing degrees of kindred, 820. mode of, table showing, 820. advancements, when chargeable against share, 830. rights of adopted children, 819. of widow, 821. of divorced wife, 823. of widower, 824. of lineal kindred, 826. of children, 826. of illegitimate children, 827. of mother of illegitimate, 829. of parents of intestate, 826. of collateral kindred, 831. of children of the half-blood, 826. of after-born children, 826. of brothers, sisters, nephews, and nieces, 831. of first cousins, 831. payment of distributive share by proceeding, 832. when may be maintained, 833. in advance of .accounting, 833. when will be ordered, 333. to infant, or where distributee is dead, 833. to assignees of distributees, 97, 833, n. scope of inquiry on, 833. notice, to whom given, 833. action at law for, 833, n. DISTRIBUTION, STATUTE OF. See Intestate Succession. DISTRICT ATTORNEY: when to act as tempor.iry surrogate, 10. to collect transfer tax, 710. costs to, on such proceeding, 733. DIVORCE: of wife, deprives her of right to administer on husband's estate, 347, 823. bars her right to share in husband's estate, 823. 71 1122 Geneba. Ikdez., ^tZZr DOCKET: of money decree, with county clerk, 1091a. of transcript of decree of probate, 249. DOMICILE: right to probate not affected by, 141, 143, 143a. distinction between " residence " and, 143a. DOWER: surrogate no power to admeasure, 45. forfeiture of, ,560, n. estate by right of, not affected by statute of descent, 813. right of, no bar to widow sharing in decedent's assets, 822. not assigned, barred by conveyance on sale, etc., of lands, 889. how provided for, on sale of lands to pay debts, 899. DRUNKENNESS: habitual, as affecting validity of will, 211, •«. disqualitirs one as executor, 303, 307, 431. as administrator, 361, 431. as ground for revokin? letters, 431. DUPLICATE WILLS: probate of, 154. contents of petition for probate of, 154. presumption as to revocation of, 154. either of, may be proved without the other, 154, n. nonproduction of both no ground for revocation, 154, n. EQUITABLE CONVERSION: of real into personal property, 269, 529. when real estate assets and vioe versa, 269, 531, 673. EQUITY: Surrogate's Court does not possess general powers of court of, 47. ESTABLISHMENT: of will by action, 61, 134. of foreign will of personalty, 61, 135. judgment of, 137. of lost will, 59, 61, 134, 234. limitation of such action, 234, n., 565, n. judgment, contents of, 239. ESTOPPEL: effect of grant of letters, by way of, 365. of decree on settlement of accounts, 1073, 1074. of decree directing payment to creditors, etc., 1013, 1075. of decree of probate, 280, n., 1071. doctrine of, not applied to proceeding to revoke decree, 1075, n., 1077. or to appeals therefrom, 1077. applied to sureties and principal on administration bond, 1076. applied on accountings, 966, 1074. of legatee, accepting legacy to attack will, 257, 280, n. EVIDENCE: several rules of, apply to Surrogates' Courts, 113. depositions of witnesses as, 123, 127, 160 et seq. of parties, taken before trial, 124, n., 127. effect of surrogate's certificate as proof of will, 247. record of ancient will as, 132, 252. of foreign will, 250, n. of letters testamentary, 325, 562, 1072. of delivery, etc., of gifts causa mortis, 585, 589. in proceeding for probate of wills, 160. of testator's handwriting, 169. of witness's handwriting, 169. dispensing with proof of handwriting, when, 169. photographs of will as, 169. EVIDENCE — continued. chemical tests as, 169. of interested parties, 170 et seq. privileged communications, 174 ei seq. questions of, governed by lea) fori, 179. extrinsic, only competent as to factum of will, 184. as to testamentary intention, 220, 260. order of proof, 185. decedent's death and identity, 186, 351. •weight of, 188, 204. formalities of execution, 189, 193, 194. subscription, 190. sufficiency of, as to publication, 195, 196. as to mark of testator, 169, 191, 202. as to death, 186, 351. attestation clause, effect of, 187, 203. effect of want of, 203. of subscribing witness does not control, 201, 204. corroboration by third persons, 204, n. conflict of testimony of, 204. as to testamentary capacity, 212, 214. of experts as to mental capacity, 213. of nonprofessional witness as to capacity, 214, 215. declarations of testator, on question of undue influence, 218, n. on question of capacity, 213, n. on proof of lost will, 238, n. on question of publication of will, 196. of intent to revoke will, 225. of revocation of will by destruction, 225. burden of proof, on probate, 187, 212. on proponent, to show testator's knowledge of contents of will, 205, 217. to explain unnatural will, 217. to show general competency of testator, 187, 212. that testator understood nature of his act, 217. in ease of presumptive fraud, 217. to show existence of lost will, 235. on contestant, when, 212. to show undue influence, 212. that influence was exerted on the act, 216. delusions, 212. shifting burden on question of sanity, 212. as to death, 186, 351. on proceeding to compel payment of debt, 694. to revoke will, 285. to revoke letters, 439. on contested accounting, 976. to show sufficiency of assets, when, 952, n. on proceeding to impeach decree, 1081. parol, to impeach validity of will, 220, 272. in aid of interpretation, 270. to vary meaning of words in will, 220, 271. to correct mistakes, 221, 259, 260. to explain ambiguities as to beneficiary, 274. to ascertain testamentary intention, 220, 260, 270. presumptions of death, on probate, 186. on application for administration, 351. from want of attestation clause, 203. of undue influence, none from old age alone, 217. of fraud, 217. from injustice of will. 218. as to existence of lost will, 235. 1124 Geneba. I^bex. T^SJ" EVIDENCE — continued. of intention to revoke willj 223. none from tearing, etc., 224, 225. from change of property, 227. from subsequent marriage, 228. from subsequent birth of child, 229. of genuineness of ancient will, 132, 252. conclusive effect of surrogate's decrees, generally, 1069. of decrees of probate, 1070, 1071. of inventory, 54, 985. of letters testamentary, 325, 562, 1072. of letters of administration, 365, 367. of decrees on accounting, 1073. of decrees directing payment, etc., 1013, 1075. > See Decrees; Prolate. EXAMINATION: of witnesses within the State, 123, 127, 160. in another county, 125, 167. without the State by commission, 124, 127, 166. by open commission, 124. by letters rogatory, 124, 127. of disabled witnesses, etc., 125, 166 et seq. of persons, not parties, before trial, 124, n., 127. as to property withheld, 580. EXCEPTIONS: to surrogate's rulings, how taken, 114, 116. to referee's reports, how taken, 118, 977. EXECUTION: on judgment against representatives, 678, 679. leave to issue, by surrogate, 680. on judgment for legacies and distributive shares, 779. on judgment against decedent, 683. leave necessary from what courts, 683, 684, 687. without leave, 686. on money decree of surrogate, 1090, 1092. when leave to issue necessary, 1092, n. decree must have been docketed, 680, n. proceedings on return of, unsatisfied, 1093. supplementary to, 696, 1092. EXECUTOR: meaning of the term, 291, 513. . nature and origin of office of, 513. nomination of, in will, 291. executor by the tenor, 291. de son tort, 513. quality of title of, 514. number of, 292. grant of letters to, 291, 293. different executors for different States, 292. or with separate functions, 292. selection of, under a power, 291, 294. within what time selection must be made, 294. renunciation and acceptance of appointment, 295. right to renounce, 295. how effected, 296. agreement to renounce, void, 295, n. retraction of renunciation, 297. cannot retract after qualification, 297. must qualify within thirty days, 298. exclusion on failure to qualify or renounce, 298. only when named in letters can act, 299. acceptance and oath of office, 300. EXECUTOR — continued. bond of, when required, 302. office of, distinguished from that of trustee, 319, 514. not made trustee by probate, 319. need not separately qualify as trustee, 320, 449. necessary qualifications of, 303. married woman competent, 304. illiterate persons, 303. nonresidents, 305. nonresident aliens, 303, 305. infants incompetent, 303. one incapable of making a contract, 303. conviction of crime as affecting competency, 303, 307, 361. drunkards, etc., 303, 307, 431. certain grounds of incompetency considered, 307. adversity of interest, 308. dishonesty and improvidence, 307. objections alleging incompetency, 309. disposition of objections, 310. staying grant of letters thereupon, 309. when may be obviated by giving bond, 311. removal of disability, 306. supplementary letters, 306. EXECUTOR BY THE TENOR: defined, 291. EXECUTOR DE SON TORT: doctrine of, 513. EXECUTORS AND ADMINISTRATORS: office of executors, 513. distinction between, and that of trustee, 319, 514. quality of title of, 514. of administrator, 515. origin of office of, 513, 515. no distinction, in general, between, 515. representative character of, 516. two classes of representatives, 528. when title vests, 516, 521. are also trustees for benefit of persons interested, 516, 522. represent both decedent and beneficiaries, 516, 522. as to representative who is also sole legatee, 522, n. foreign executors and administrators, 517. right and liabilities here, 518. authority local, 518. may collect domestic assets, 518. where one appointed here removes to another State, 518, n. have no standing as plaintiffs in actions here, 99, 518, 567. rule does not apply to foreign trustees, 99, n. assignee of, may bring action here, Q9, n., 518. cannot be sued in purely legal action, 518. nor be substituted in pending action, 518. but they are liable to action in equity, under proper allegations, 518. responsibility extends to assets in their hands here, 518. no defense by reason of their being, when, 518. liability of, on bringing assets into the State, questioned, 518, n. surrogate's control over, in general, 519. extends to what, 519. illustrations of, 519. does not extend to proceedings in other courts, 519. nor as to property they do not hold as such, 519. in general cannot interfere with, in orderly discharge of duty, 519. 1126 G.NEKAL I.B.X. ^TZtnT EXECUTOES AND ADMINISTRATORS — continued. powerless to overrule decision of, except on proof of misconduct, 519. in case of disagreement between executors, 520. may grant order to show cause why he should not give directions, 520. who may apply for such order, 520. proceedings in such case, 520. may order deposit in joint custody, 520. disobedience of such order a contempt, 520. may authorize compromise of debt by, 629. interference with assets before probate, 130, 131, 540, n., 562. possession of assets by, before proba>te, 131, 562. derive title from will, 131, 562, 594. no power to dispose of estate before letters, 131, 562. proceedings before issue of letters, 563. by administrator, 563. by executor, 563. letters, how far retroactive, 130, 324, 563. estate of, 521. general power over assets, 521. distinction between assets bequeathed and unbequeathed, 522, n. is in autre droit, 521. cannot pledge assets in payment of his own debt, 522, n. qualified title of, 522. merger of, in individual estate, 523. joint tenancy, where two or more, 524. act of one is act of all, 524. death of one does not change quality of, 524. vests in the survivor, 524. except where an act is to be done by them jointly, 524. as testamentary trustees, must act jointly, 524. saje by one, where other refused to act, 524. of^survivor, 626. of substituted trustee, 527. all unexecuted trusts vest in Supreme Court, 527. of testamentary trustee cannot be continued after his death, by will, 527. includes whole of personalty, 528, 529. but not realty, 528. in personal property in possession, 528, 529. in foreign assets, 529, n. in real property under will, 530. in rents of real estate, 532. where land equitably converted, 532. in contract to purchase, 530. in land bought by, on foreclosure sale, 523, n., 530, 617. in proceeds of realty directed to be sold, 531. under discretionary power, 531. where realty is in another State, 531, n. where proceeds given to another, 530, n., 531. as donees of power, 531. estate not vested, by mere authority to sell, 531. power to sell, when not implied, 531. gifts of rents, for life, 532. of property held in joint tenancy, 533. in partnership property, 533. partnership property a question of intention, 533, n. subject to rights of surviving partner, 533. survivor holds decedent's share in trust, 533. in property held in common, 533. good-will of testator's business, 534. right to use name of, 534. EXECUTORS AND ADMINISTRATORS — continued. literary property, 535. insurance policy payable to executors, 536. insurance on life of nonresident, 529, n. interest in policy on life of another, 536. payable to widow, etc., when, 536. how far such policy applicable to debts, 536. special statutes as to such, 536. where proceeds payable to one as trustee for children, 536, n. when specifically bequeathed, 536. against fire, distinction as to time of loss, 537. ' depends on character of property insured, 537. fire policy taken out by executor, 537. policy taken out after death and payable to estate, 537, n. benefit association fund, 537a. trust deposit, 537a. pension moneys, 538. government payment of Alabama claim, 538, n. damages for decedent's death, 539. in property in action, 540. survival of rights under contract, 541. contract for purchase of land, 630, ». contracts determinable by death, 542. personal actions, when do not survive, 542. when do, 542. rights relating to realty do not, 542. covenants running with decedent's lands, 542. those which do not run with the land, 542. wrongs to decedent's property, 543. wrongs to his person, 544. suit to disaflfirm decedent's acts, 545. proceedings by, to discover property concealed, etc., 573 et seq. possession and control of, when vests, 516, 521. who entitled to, 600. joint tenancy of two or more representatives, 524, 600. in case of death or resignation of one, 524. in case of disagreement, 520. when estate vests in two or more, 600. neither as against the other has exclusive right to, 600. acts of one the act of all, 524, 600. where one is a beneficiary, 601. cannot act in both capacities, 601. such a one may terminate the trust as to him, 601. , liability of, for funeral charges, 546. such charges have a preference, 546, 663. duty as to burial, 646. right of relatives to designate place of, 546, «. charge for, as a debt of decedent, 546, §45. expenses, when a charge against estate, 546. executor personally liable, when, 546. authority of executor to pay before letters issued, 546. who primarily liable, 546. liability for, when incurred by third person, 546. only reasonable expenses allowed, 549. what allowed as against creditors, 550. includes charge for a tombstone, 549, 845, ». as well as burial lot, 550. expenses incident to death, 551. constitute a debt against estate, 550, n. mourning for family generally a charge, 551. proceedings to compel payment of, 547, 548. 1128 Genbba. I.BEX. T;SJ" EXECUTORS AND ADMINISTRATORS — continued. for administration expenses, 552. primarily individual, 552. right to reimbursement paramount to claims of creditors, 661, n. for reasonable and necessary disbursements, 552. what are, 552, 556. employment of counsel, 552, 555, n., 1115. executor cannot create lien for services of attorney, 552. incurred but not paid, 553. incurred in proving will, 554. traveling expenses, 554, 555, n. * of litigation generally, 555. expert witness fees, 554. for personal services of representative, 557. reimbursement for costs and expenses, 555. employment of co-representative, 557. of clerks and agents, 558. in preparing account for settlement, 559. for misconduct of co-representative, 602. intrusting property to co-representative, 603. evidence of connivance or assent, 604. joining in account as evidence, 604, n. for waste of agent, 605. on their own contracts, 606. when such contracts bind estate, 606. cannot bind estate by executory contract, 606. exceptions to rule exonerating estate, 606. statute of frauds as to, 006. cannot revive demand once expired, 606, 630. may settle claim or state an account, 606, »., 629. confession of I'lidgment by, 606. may submit to arbitration, 629, n. borrowed money, 607. for rents, on failure to terminate decedent's tenancy, 608. where representative is co-tenant, 608. on covenants in lease, 609. effect of entry, 609. on continuing decedent's business, 610. largely at representative's risk, 611. for debts incurred for so doing, 533, n., ull. exception to general rule of liability, 611. losses payable from income, 611. status of creditors, 611, 667, n. continuing interest in co-partnership, 612. where representative is surviving partner, 533, «., 612, «., 613. status of surviving partner, 533, 612. forming a new firm. 613. for repairs, taxes, and incumbrances on realty, 614, 615. to third persons for condition of property, 614. for not insuring against lire, 616. on foreclosing mortgage and buying la property, 617. for moneys not deposited in bank, 618. for failure of deposit bank, 618. for mingling trust funds with their own, 618. for not keeping funds at interest, 619. for interest on fund, 619, 620, 621. compound interest, 620, n., 621. where they deal with estate for their own benefit, 620. incurred in making investments, 621. character of investment, 622. TS;r Ge^ebai. Index. 1129 EXECUTORS AND ADMINISTRATORS — continued. instructions in will as to, 622. continuing decedent's investments, 623. speculation forbidden, 622. duty to realize on assets, 621, 623. cannot loan on personal security, 622. nor upon leasehold interests, 622. may purchase land to straighten boundaries, 622, n. foreign investments, 624. in purchasing from beneficiary, 625. administrator may do so, 530. land bought in on foreclosure, 617. for profits realized or losses incurred on securities, 626. not for unavoidable losses, 627. for loss on sales of personalty, 598. by robbery, 627. of debts due estate, 628. for their own debts to estate, 628. for incompetency of attorney, 628, n. for misapplication of assets, 630. for erroneous payment of claims, etc., 630. payment of legacies, 630. actions, between co-executors, 525. at law, cannot be maintained, 525. otherwise in equity, 525. by and against, in what character brought, 567, 677. cannot be brought before letters issued, 563, 567. when brought in individual character, 567, n. rules of survival and revivor, 564. extension of limitation of, 565. of time to appeal, 566. joinder of parties and causes of action, 568. designation of parties, 567. pleadings in; set-oft', 569. form of judgment in, 570. lien of judgments in, 570. real estate of decedent not bound by, 570. execution on judgments in, 568, n. costs in, 571. security for costs in, 572. proceedings by and against in Surrogate's Court, 99. all must be joined as parties, 99. are " interested parties," 99. by representative against co-representative, 99. power of, over real estate, 527, 594. terminates at death of trustee, 527. cannot be delegated, 594. exercise of power, 594. is derived from the will, 594. where he takes as donee of power, 594. when power is without an interest, 594. not exercised by conveyance to legatee, 594. administrator has no power, 595. to grant easement, 594, n. to mortgage or lease, 594, n. power of sale, under will, 594. when implied, 594, n. is derived solely from will, 594. probate and letters, necessary, 594. must be exercised in mode prescribed, 594. whether public or private, 594. 1130 Gbnebai. Inbex. T=J." EXECUTORS AND ADMINISTRATORS — continued. effect of naked power of sale, 594. of collusive sale, 594, n. by one where other refused to act, valid, 524. joint consent to exercise of power, 594. cannot be delegated, 594. discretion vested in two cannot be exercised by one, 594, n. as to time of sale, 596. what is a reasonable time, 596. formalities must be observed, 594, n. nominal conditions may be disregarded, 594, n. disposition of proceeds, 597. of lands in another State, 594, n. power of sale of real estate to pay debts. See Real Estate. sales of personal property, 598. when must be made, 598. if necessary to pay debts of legacies, 598. power to make,' though not so necessary, 598. may be public or private, 598. terms of credit on, 598. order of sale, 598. purchaser protected, 598. of stale or doubtful claims, 599, 629. direction in will as to disposal of personalty, 630. EXEMPT ARTICLES: what are free from seizure by creditors, 506. interest of widow, etc., 507. sale of, before inventory, 507. appraisers' estimate of value of, 508. compelling setting apart of, 506, 510. EXEMPTIONS: from transfer tax, 705. See Transfer tax. EXPENSES or ADMINISTRATION: what are, 552, 556. representative's duty and liability in respect to, 552. right to reimbursement paramount to claims of creditors, 661, n. preference in payment of, 663. EXPERTS: opinions of, as evidence of testamentary capacity, 213. classes of, treated, 213. subscribing witnesses as, 214. EXPOSITION OF WILL. See Will. EXPRESS TRUSTS. See Will. EXTRINSIC EVIDENCE: on probate, only competent as to factum of will, 184. to correct clerical errors in will, 221, 259, 260. meaning of technical words in will cannot be varied by, 270. to explain ambiguity as to beneficiary, 274. to aid reading of will, 271. testing of will, 272. applying will, 273. interpretation of will, 270. rules of admissibility, 270, n. on impeachment of decrees, when allowed, 1081. See Evidence. FEDERAL COURTS: concurrent jurisdiction of, in testamentary cases, 63. FEES: of appraiser, 494. ta.'cing bill of, 494. FEES — continued. of executor, etc., selling lands, etc., 904. of freeholder, selling lands, etc., 904. of special guardian, 1111. on appeal, 1111, 1119, n. on transfer tax proceeding, 1111, n. on proceeding to sell lands, etc., 904, n. on probate, 1106. on accounting, 112, 1111, n. of referee, 120. taxation of, 120. motion to tax, where party refuses to proceed, 120, n. of stenographer, 25, n. of surrogate, 39. for searches, 39. none in certain cases, 40. book of, to be kept and annual report made, 41. for traveling to take testimony, 39. disposition of, in New York county, 41. See Costs. FINAL ORDER; of surrogate, defined, 1088. See Decree. FINDINGS: when to be filed, 114. separate statement in decision of surrogate, 114. in referee's report, 118. either party may request, 114, 115, 1143. FIXTURES: when are assets, to be included in inventory, 490. question as to, one of fact, 490, n. FORECLOSURE: right of executor to buy in land on, 617. surplus on, goes to heirs, 530. See Surplus. FOREIGN: assets, to be inventoried, 529, n. investments, liability of executor on, 624. probate, ancillary letters on, 312 et seq. letters c. t. a. upon, 333. FOREIGN REPRESENTATIVE: application of the terra, 517. not a party to proceeding in Surrogate's Court, 99. cannot sue in our courts, 99, 518, 567. rule does not apply to foreign trustees, 99, n. not required to give bond unless objected to, 477. power of, to take eh.aTge of estate here, 312, ra., 317, 518, 795, n. to -sell lands, 318. rights and liabilities here, 318, 518. assignment by, recognized here, 99, n. FOREIGN WILL: meaning of term, 333. of personalty, establishment by action, 61, 135. probate of, 149. recording here, 250. record of, as evidence, 250, n. power of sale under, 250, n. certified copy of, to be filed with secretary of state, 251. letters c. *. o. on proof of, 333. appointment of guardian by, 1060, n. FORMS. See Indesa to Forms. 1132 Geneba. I^bex. T7eX;r FRAUD: in procuring execution of will, 216, 217. declarations of testator not competeni, to prove, 218, n. presumptions of, 217. where will drawn by devisee, 217. family physician, 217. attorney, 217. clergyman, 217. guardian, 217. where testator was blind, 217. illiterate, 217. weak in body and mind, 217. not presumed from old age alone, 217. from injustice of testamentary provisions, 218. from opportunity and interest, 219. precise mode of, need not be proved, 218. illustrations of principles respecting, 210, n. PEEEHOLDER: appointed to sell lands, etc., 869. See Real Estate, etc. FUNERAL EXPENSES: payment of, by temporary administrator, 414. by public administrator, 390. preference of claim for, 546. whose duty to incur, 546. where a charge against estate, 546. when estate relieved of liability for, 546. not a debt of decedent, 546. third persons may be liable for, 546. executor personally liable for, when, 546. allowance for, on accounting, 549. proceedings to compel payment of, 547. hearing and decree thereon, 548. who primarily liable for, 546. must be reasonable in amount, 549. what are allowable, as against creditors, 550. cost of tombstone included in, 549, 845, n. as well as burial lot, 550. and mourning for family, 551. expenses incident to death and burial, 551. sale, etc., of lands to pay, 845. GIFTS CAUSA MORTIS: origin of, 584. characteristics of such gifts, 584. distinguished from other dispositions, 584. from nuncupative will, 584. from gift inter vivos, 584. from legacy, 584. Tinchecked by statute, 584. strictly viewed by courts, 584. power of surrogate to determine validity of, 584. subject of, 585. applies only to personal property, 585. presumption as to, 592, n. requisites of, enumerated, 586. must be made in view of death, '587. time of death immaterial, 587. donor's death, 588. gift must be absolute, 590. there must be a delivery, 589. what constitutes delivery, 585, 589. GIFTS CAUSA MORTIS — con imiifd. rules governing delivery, 589. transfer of dominion necessary, 590. must be acceptance by donee, 589. must accord with nature of gift, 589. constructive delivery, 589. of shares of stock, 585. of promissory note, 585. of bonds, 585, 590, n. of mortgage, 585, 590, n. of deposit in bank, 585, 589, 590, n. in escrow, 589, 592, n. void as against creditors, when, 591. revocation of, 592. by reclaimer, 588, 592. by any act which would effect revocation of will, 592. bequest of all testator's property, not a, 592. evidence of, 593. burden of proof on the donee, 593. not necessary to show testamentary capacity of donor, 593. prima facie case made out by proof of requisites, 593. GUARDIAN AD LITEM: infant parties must be represented by, 108, 974. general guardian of infant may act as, 108. committee of incompetent may act as, 108. clerk of court cannot act as, 22. surrogate's power to appoint, 108, 109. for infant, 108. for incompetent, 108. appointment, not nullified by existence of general guardian, 108. effect of failure to appoint, 108. appointment cannot be made nunc pro tunc, 110. nor until after service of citation, 110. on appeal, 1134. evidence of appointment in proceedings to sell, etc., 906. application for appointment, 109. notice of, 109. time of notice, 109. order to show cause on, 109. rule as to, in New York county, 109, n. vacating appointment, 108, n. nomination of, 109, n. duties and responsibilities of. 111. compensation of, 112, 1111. entitled to costs, though unsuccessful, 112. as counsel, not entitled to allowance, 112. on appeal, surrogate cannot award, 112, 1111, 1119, n. on accounting, 112, 1111, n. on proceedings to sell, etc., lands, 904, n. on transfer tax proceeding, 1111, to. on contested probate, 1106. bond of, 483. GUARDIAN, BY WILL OR DEED: appointment of, by whom, and how made, 1058. power to appoint does not exist except by statute, 1058. statutes relate only to domiciliary guardianships, 1058. by foreign will, 1060, n. foreign guardian, 1058, to. former rule as to, 1058, to. father and mother joint guardians of their children, 1058. the survivor only, has right to appoint, 1058. 1134 Gei^eeal Index. ^T!Zt.T to sections. GUARDIAN, BY WILL OR DEED — omitinued. includes guardianship of unborn child, 1058. adopted child, 1058. statute refers only to children of testator, 1058. of joint guardians, 1059. what language in will amounts to, 1059, n. not confined to infants with property, 1059. is valid as against guardian in socage, 1059. operates to prevent appointment by surrogate of infant over fourteen, 1059, TO. defeated by subsequent appointment by surrogate, when, 1060. letters should not issue to nonresident alien, 1060, n. Powers and duties of, defined, 1059. of joint guardians, where one refuses to act, 1059. prerequisites to authority to act, 1060. will must have been proved and letters of guardianship issued, 1060. if appointed by deed, same must be recorded, 1060. effect of not recording deed within three months, 1060. presumption as to renunciation, 1060, 1061. oath of, to be taken within thirty days from probate, 1061. time may be extended, 1061. filing objections to issue of letters to, 1061. renunciation of appointment, 1061. requiring security from, 1062. petition for security; by whom presented, 1062. contents of petition, 1062. proceedings thereon, 1062. compelling filing of inventory and account by, 1063. judicial settlement of account by, 1064. may be voluntary or compulsory, 1064. decree on, effect of, 1065. compensation of, 1066. whether, when also executor entitled to double commissions, 1040, n. legacy given in lieu of, 1066, «. Removal of, by Surrogate's Court, 1067. proceedings for, same as in case of testamentary trustee, 1067. validity of will may be attacked on proceedings for, 1067, m. by Supreme Court, 1067, n. suspension of guardian, pending proceedings, 1067. order for, when revoked, 1067. Resignation of, permitted, 1068. to what surrogate application directed, 1042, m., 1068. proceedings on, same as in case of general guardian, 1068. where guardianship is sole, successor may be appointed, 1068. GUARDIAN, GENERAL: appointment of, 1014 et seq. general jurisdiction of surrogate to appoint, 1014. extent of power to appoint, 1015. to restrain from acting, 1014, n. of married female infant, 1015. • effect of marriage upon such appointment, 1015, n. jurisdiction concurrent with other courts, 1014. what surrogate has jurisdiction, 1016. depending on residence of infant in surrogate's county, 1016. on property therein, if infant resides out of State, 1016. actual, not merely legal, residence intended, 1016. deemed an oflSeer of the court, 1014, n. temporary guardianship of infant under fourteen, 1017. must be nominated by surrogate, 1017, 1023. no notice to infant necessary, 1021, to. Jieferences are r^ t 1 -< o r to section. Gei^eeal Index. 1135 GUARDIAN, GENERAL — continued. when office of, expires, 1014. such office continues, until successor appointed, 1017, n. by whom application made, 1017. effect of prior appointment on surrogate's powers, 1018, 1025. petition for appointment, of infant over fourteen, contents of, 1019. of nonresident, married woman, 1015, n. discretionary with surrogate to appoint person named, 1019, n.. 1023. citation not always essential, 1020. time of service of, on infant petitioner's father, 1020. to relatives, is discretionaiy with surrogate, 1021. husband of female infant to be cited, 1021, n. hearing of application, 1022. inquiry into circumstances where no citation, 1022. as to infant's property, 1022. as to infant's relatives, 1021. subpoena for that purpose, 1022. nomination of, by whom made, 1017, 1019. infant under fourteen, 1017. infant over fourteen must nominate, 1019. right of infant to nominate not absolute, 1017, n., 1019, «., 1023. guardian of person of married woman not to be appointed, 1022. surrogate must approve nomination, 1023. neglect of infant to nominate, effect of, 1023. principles governing appointment, 1023. preference among relatives, 1023, n. nonresident relatives not ineligible, 1023, n. surrogate not restricted to relatives, 1023. corporation may be appointed, 1023, n. same person may be appointed in both capacities, 1023. joint guardians of infant's person not to be appointed, 1023. limited letters to, form of, 478. decree, valid until reversed by direct proceeding, 1025. Office of, begins from delivery of letters, 1024. for infant under fourteen, is temporary, 1017. how affected by marriage of female infant, 1015, n. where two or more, is joint and several, 1026. is deemed an authority coupled with an interest, 1026. oath of, to be filed before letters issue, 1027. bond of, guardian of property must give, 478, 1027. guardian of person may be required to give, 481, 1027. where trust company appointed, 1027, n. rules governing prosecution of, 1027, n. sureties on, liability of, 480, 1027, n. remain liable until accounting by, 480, 1044. See Bonds. powers and duties of, 1028. may represent infant in proceedings, etc., 108. keeping up inheritance, 1028. penalty for waste, 1028. application of infant's property, generally, 1029. applying property to support, on surrogate's direction, 1029. turning over legacies, etc., to minor on reaching majority, 1011. ordering application of property, on petition of creditor, 1029. revoked by death, 1049. annual inventory and account to be filed, 1030. only applies to guardianship of property, 1030. contents of inventory, 1030. of account, 1030. must be verified, 1030. not to be judicially settled, 1030. 1136 Genbba. Index. " ''t'^ZZ^:' GUARDIAN, GENERAL — conH««erf. object of, 1030. scrutiny of, by clerk or examiner, 1031. remedy where account, etc., not filed or defective, 1032, neglect to file not a ground for removal, 1045. proceedings to supply deficiency, 1032. rule in New York county as to, 1032, n. how annual account made conclusive, 1033. final account, judicial settlement of, 1033. when compellable, 1033. by ward, on attaining majority, 1033. by executor, etc., of ward who has died, 1033. by guardian's successor, 1033. by surety on guardian's bond, 1033. by legal representatives of such surety, 1033. of deceased guardian, 1033. of guardian of person by guardian of property, 1033. proceedings thereon, 1033. of executor, etc., of deceased guardian, 1033. may be compelled by successor or ward after decree on resigna- tion, 1044. citation on, to whom directed, 1033. limitation of proceeding, 1036. procedure on judicial settlement, 1035. separatoaccounts for each ward, 1035. vouchers to be filed, 1035. examination of guardian, 1035. subject-matter of accounting, 1037. accounting limited to proceedings under letters, 1037. questions determinable^ 1037. voluntary accounting and discharge of, 1034. petition for, contents of, 1034. when may be presented, 1034. upon whom citation to be served, 1034. procedure on, 1035. separate account for each ward, 1035. compensation and expenses allowed, 1038. same rate as that allowed executors, 1035, n., 1038. not allowed for extra services, 1039. commissions not to be computed, till end of guardianship, 1040. when denied compensation, 1038, n. principles governing computation, 1040. of temporary guardian, 1040. on annual statements, 1041. resignation of, surrogate may permit, 1042. petition for, guardian may present, 1042. prayer of, 1042. surrogate may decline to entertain, 1042. notice to third persons, in surrogate's discretion, 1042. guardian ad litem must be appointed, 1043. hearing, reasons must be shown, 1043. order to account as preliminary to, 1043. decree permitting, on accounting and delivery, 1044. decree is tentative only. 1044. does not prevent proceeding for compulsory accounting, 1044. apportionment of costs on, 1044, n. removal of, grounds for, enumerated, 1045. surrogate will not remove, unless for cause specified, 1045. neglect to file inventory, no ground for, 1045. who may apply for, 1046. petition for, prayer of, 1046. GUARDIAN, GPJNERAL — cowtirmetf. inquiry into facts before citation issued, 1046. subpoena to attend for such purpose, 1046. citation, when to issue, 1046. suspending guardian on issue of, l047. certified copy, order of suspension to accompany, 1047. proceedings on return of, 1047. ■when proceedings dismissed, 1048. decree of revocation, 1049. appointment of successor, 1049. appeal, effect of, 1049. foreign, appointment of, dependent on what, 1050. of property cannot act here, 1050. of person when recognized here, 1056. ancillary letters, when granted, 1051. where infant resides in the United States, 1051. petition for, contents of, 1051. who may apply for, 1051. proofs to accompany petition, 1051. issue of citation thereon discretionary, 1053. security by ancillary guardians not required, when, 1054. payment of debts due to residents before issue of, 1053. where infant resides in foreign country, 1052. proof necessary on application, 1052. security not condition precedent to letters, 1054. decree granting letters, 1053. powers of ancillary guardian, 1055. when authorized to receive property from resident guardian, etc., 1055. revocation of ancillary letters, 1057. GUARDIAN, in socage, has power, etc., as general guardian, 1028, n. HALF-BLOOD: relatives of, entitled equally with whole-blood, 805, 826. See Intestate SuGoession. HANDWRITING: proof of, when allowed, 169. rule as to, applied to proof of testator's mark, 202. on probate, 169. knowledge of contents of will presumed from proof of, 205. dispensing with, when, 169. HEARING: before surrogate or referee, 113, 118, 964. adjournment of, surrogate's power to order, 52. See Surrogate's Court; Trial Practice. HEIRS- AT-LAW: defined, 92, 269. as parties in Surrogate's Court, 92, 93. descent of real property to, 796 et seq. as tenants in common, 809. distribution of personal property to, 816a, 826. land aliened by, sale for debts, etc., 879. may sue for reimbursement, after lands sold, etc., 907. must satisfy mortgage, without resort to representative, 595. heirship of, probate, 1120 et seq. HEIRSHIP, PROBATE OF: generally considered, 1120. allowed, of what estates, 1121. who may apply for^ 1122. what court has jurisdiction to grant, 1122. petition for, contents of, 1122. 72 1138 Gekebal Ihbex. TSJ" HEIRSniP, PROBATE OF — continued. citation, contents of, 1122. to whom directed, 1122. heir not cited may appear and contest, 1122. rights of heir not a party, unaffected, 1122. proceedings must be dismissed, if contested, 1123. what petitioner must establish, before decree granted, 1123. decree granting, must recite facts established, 1123. effect of, as presumptive evidence, 1124. may be recorded, 1124. revoking or modifying decree of, 1125. who may apply for, 1125. limitation of, 1125. must be made by written petition, 1125. requisites of petition, 1125. to whom citation directed, 1125. requisites of petition, where heir has died or aliened, 1126. decree of revocation, etc., 1127. may be recorded, 1127. HEALTH OFFICER: to account to public administrator for effects of those dying at quar- antine, 388. HUSBAND: of decedent, not her next of kin, 94, 269, n., 821. liable for wife's debts, when, 346. right to share in assets of, 346, 824. where wife left no descendants, 824. prior right of, to administer wife's estate, 346. relatives of, descent of property of wife to, 806. IDIOTS, LUNATICS, ETC.: service of citation on, 77. appearance by committee in Surrogate's Court, 108. appointment of special guardian for, 108. wills of, invalid, 210. mere imbecility does not incapacitate, 210. insane delusions, 211. monomaniac competent, when, 211. habitual drunkards, 211, n. descent of property of, 796, n. ILLEGITIMATE: meaning of term, 92. not included in term " children," in will, 269, «. status of, 92. administration on estate of, 343, n. illegitimacy not presumed, 827, n. what law governs succession to property of, 795. descent of real estate of, 804. cannot inherit ^eal estate, 804. when may inherit personalty from mother, 827. mother of, may inherit from, when, 829. INCUMBRANCES: on land, right and duty of executor, etc., to pay, 614, 615. INDIANS: not subject to surrogate's jurisdiction, 341. disposition of property of, 341. INFANT: age of, how ascertained, 77, n., 208, n. service of citation on, 77. appearance by general guardian in Surrogate's Court, 108. party, appointment of special guardian for, 108 et seq., 974. where infant ordered brought in as a party, 107. ^I^'ZZr Genebal Index. 1139 INFANT — eontinued. incompetent to make will of realty, 208. at what age, competent to bequeath personalty, 208. may be administrator through general guardian, 361. residence of, that of parent, for purposes of jurisdiction, 341. direction as to payment of share of, on accounting, 1011. legacies and distributive shares of, to whom paid, 792. children of decedent, exempt articles for, 508. guardians of person and property of, 1014 et seq. adopted, right of, to inherit, when, 815, 819. legacies, etc., not subject to transfer tax, 706. cancellation of adoption, when, 46. female, though married, cannot devise realty, 208, n. guardianship of, how affected by marriage, 1115, n. investment of share of, in proceeds of lands sold, etc., 900. INHERITANCE: defined, under statute of descent, 796, n. of real estate, 796 et seq. of personal property, 816 et seq. See Intestate Succession. INJUNCTION: power of surrogate to issue, 52, 53. against sale, etc., to pay debts, 866. INSANE DELUSIONS. See Testamentary Capacity; Will. INSTRUMENTS: referred to in will, 233. INSURANCE POLICY: duty of executor to insure against fire, 616. on life, payable to executors, as an asset, 536. of another, 536. of nonresident, 529, n. payable to widow, 536. special statutes as to such, 536. when specifically bequeathed, 536. against fire, distinction as to time of loss, 537. taken out by executor, 537. INTENTION: of testator. See Will. INTEREST: on mortgage, etc., when to be paid by representative, 614. on funds, liability of executor, etc., for, 619 et seq. liability of temporary administrator, 419, 420, 619, n. compound for, 620, n., 621. when payable on legacies, 776, 777. on claims of representative, 642, re. liability of general guardian for, 1037. INTEREST IN ESTATE: of a party, what is, 98, 934, 936. executor is one possessing, 99, 104. effect of, on competency of witness, 170, 172. what interest entitles one to intervene, 104. apparent interest sufficient, 98, 949. allegation of, when sufficient, 98, 949. in petition for accounting, 949. may be litigated as a preliminary issue, when, 98, 104. INTERLINEATIONS : in will, effect of, 224. See Will. INTERMEDIATE ACCOUNT. See Accounting. INTERPRET.4.TI0N OF WILL. See Will. INTERVENTION OF PARTIES. See Parties; Prolate. 1140 Gekebai, Index. ^IZZSJ:" INTESTATE SUCCESSION: intestate, defined, 338. partial intestacy, 817. object of statute regulating, 794. what law governs, 795. when intestate was illegitimate, 795. descent of real property; order of descent, 796. lineal descendants in equal degrees, 797. children living, and descendants of dead children, 798. descendants of unequal degree, 798. when father to inherit, 799. when mother to inherit for life, and when in fee, 800. when collateral relatives inherit, 801. brothers and sisters, and their descendants, 802. when such descendants are of unequal degree, 802. doctrine of representation, 802, n. brothers and sisters of father, and their descendants, 803. when uncles and aunts inherit, 803. when maternal uncles and aunts preferred, 803. when maternal and paternal uncles and aunts inherit equally, 803. of property of illegitimate, 804. of property of insane person, 796, n. relatives of half-blood inherit equally with whole-blood, 806. relatives of husband or wife, 806. in cases unprovided for, common-law rule prevails, 807. heirs to take as tenants in common, 809. to posthumous descendants and relatives, 808. illegitimate children not entitled to inherit, 804. estates by curtesy and dower not affected by statute, 813. of estate in trust, 813. of property of alien ancestor, 810. advancements to be set off, 811. when to be deducted, 811. how adjusted, 812. additional portion to widow, 814. when adopted children may inherit, 815. of personal property, 816. such property has no locality, 795, n. origin and policy of the statute, 816. order of distribution, 816a. doctrine of representation, 818. adopted children, 819. computing degrees of kindred, 820. mode of distribution, table showing, 820. rights of widow, 821. right of dower no bar, 822. effect of divorce, 823. rights of widower, 346, 824. of next of kin of husband or wife, 825. of lineal kindred, 826. of children, 826. of child disinherited, 826. of posthumous children, 826. of illegitimate children, 827. of mother of illegitimate, 829. of parents of intestate, 828. of relatives of half-blood, 826. advancements to children, 830. rights of collateral kindred, 831. proceedings to compel payment of distributive share, 832 et seq. See Distribution of Personal Property. INVENTORY: of decedent's assets, 486 et seq. to be filed by guardian, 1030. by temporary administrator, 500. by public administrator, 380, 396. by county treasurer, 381. INVESTMENTS: temporary administrator cannot make, 412. liability of representative in making, 621. character of, by representative. 622. foreign, 624. of legacies to minors, 792. of infant's share of lands sold, etc., 900. of dower fund, on proceedings to sell, etc., lands, 899. IRREGULARITY: surrogate's power to correct, 44, 52, 54, 425, 1077, 1081. effect of, on surrogate's decrees, 1078, 1083. when cannot be corrected on motion, 1082. when not jurisdictional, 1083. when may be corrected by amendment, 1083. cannot be urged in collateral proceeding, 1083. when available only on appeal, 872, 1083. in appeal proceeding, corrected, how, 1138. in proceedings to sell, etc., lands, cure of, 872. JOINDER: of person not entitled in administration, 348. of parties and causes in action by or against executors, 568. JUDGMENT: in action to determine validity of devise, 137. to establish foreign will, 136. lost, etc., will, 239. by or against executor, etc., 570, 677. against decedent, a preferred debt, 664, 667. representative, status of, 667, 677, 678. for costs, status of, 667. entered after party's death, status of, 668. foreign, 669. of Federal courts, 669. execution on, 679, 682. against representative not a lien on decedent's real property, 521, n. effect of, as evidence of debt, 637, 861. See Actions; Debts; Decrees. JURISDICTION: of Federal courts in testamentary cases, 63. of Supreme Court in probate, etc., cases, 59-61. of Surrogate's Court, generally, 42. See Surrogates' Courts. JURY TRIAL: surrogate may order, when, 121, 164, 863. in probate, 121, 164. contents of order for, 121, 164. review of verdict, 164, 1146. new trial, when granted, 164. appeal from order granting, 1146. in setting aside verdict, issues triable before another jury, 121, n. surrogate has no power to direct new trial after, 121. in action to determine validity of probate, 138. verdict in such action, conclusive, 138. in proceedings to sell, etc., lands, 121, 863. on reversal of surrogate's decree of probate, 1146. 1142 G-ENEEAL Index. References are to sections. LAPSE: of legacy, 763. See Legacy. LATENT AMBIGUITY: in will, discussed, 270. extrinsic evidence to explain, 270. LAW OF PLACE: what law governs probate, 177 et seq. intestate succession, 795. validity of devise, 179. LEASE: considered personal property, 489. of lands to pay debts, etc. See Real Estate, etc. LEGACY: general description, 735. when vests, 765. different kinds and characteristics enumerated, 735. specific; defined, 736. illustrations of, 736, n. not subject to abatement, 736, 754. when payable, 736, 754. necessary description, 736. interest on, 736. demonstrative; defined, 736. qualities of, 736. does not abate, 736. general; defined, 737. presumption of generality, 737. includes annuities, 737. residuary legacies, 737. legacy of specific amount in bonds is, 754, n. annuities; defined, 737. are general legacies, 737. on failure of fund, how payable, 737. residuary; defined, 737. what carried by, 737. legacy charged on land, 738. intention to charge land, necessary, 738. what will indicate such intention, 738. personal liability of devisee for, 739. vested and contingent; defined, 740. principles for distinguishing between, 740. distinction relates mainly to lapse, 740. test of contingency, 740. effect of futurity on vesting, 740. law favors vesting, 740. vested right to a contingent estate, 741. in case of gift by direction to pay, 740, n. legacy pur autre vie, how vests, 740. absolute and conditional; defined, 742. conditions precedent and subsequent, 742. failure of condition, 742. accepting condition of, 742. disposition of rejected conditional, 742. legacy to executor, when conditional, 743. presumption as to, 743. cumulative; defined, 744. presumption is against, 744. intent of will governs as to, 744. legacy of rents, restrictions on, 260 et seq. legacy to a class, 269, TSJ" Geneeal Ikdex. 1143 LEGACY — continued. legacy in lieu of dower, 745. legatee must elect, 745. principles governing, 745. legacy to executor, 743, 746. when deemed conditional on acting, 743. in lieu of commissions, 746. election in such case, 746. legacy to guardian in lieu of commissions, 1066, n. legacy to creditor, 747. in general implies bounty, not payment, 747. when deemed satisfaction of debt, 747. legacy to debtor, 748. presumption as to, 748. of amount of debt in terms, 748. effect of debtor's nomination as executor, 748. validity of, as against creditors, 748. legacy to witness of will, when not avoided, 171. to witness, effect of, 171. legacy to corporation, 268. foreign corporation, 268. designation of corporation, 274. to the United States, 268. to the city of New York, 268, n. legacy to unincorporated society, validity of, 268. executory bequest to, 268. to literary institutions, 264. legacy for charitable uses, 266 et seq. restrictions on, 260 et seq. limitation on, 267. foreign charities, 267. legacy for life, 749. if specific and perishable, is absolute, 749. right of life tenant to possession of, 749. security by life tenant, 749. dividends on securities, 749. if general, legatee has only income, 749. on what remainder may be limited, 749. ademption and satisfaction, defined, 750. distinction between, 750. of specific legacies, 751. what effects, 751. by alteration of fund, 751, n. intent of testator immaterial, 751. advancements as ademption of legacy, 751. by extinction of fimd, etc., 751. case of bond and mortgage foreclosed, 751. sale of lands devised, 751. of demonstrative legacies, 752. satisfaction of general legacies by advancement, 753. ademption by subsequent portion not applied to devises, 753. advancement, when presumed a satisfaction, 753. parol evidence of testator's intention, 753. testator must stand in loco parentis, 753. as to advancements, etc., after execution of will, 753, n. evidence of advancement, 753. testator's books as evidence, 753. declarations of testator as to, 753. burden on executor to establish satisfaction, 753, n. abatement, rule as to specific legacies, 736, 754. of general legacies, 755. 1144 Genebai, Inbex. TSJ" LEGACY — continued. distinction between mere bounties and those given for prior in- debtedness, 755. of legacies for maintenance, etc., 755. of legacies for piety, 755. of legacies to widow, 756. of legacies to executors, 757. of residuary bequests, 758. of legacy given by codicil, 759. testator's intention governs, 759. order of, 760. occurring after payment, refunding, 761. where deficit caused by waste of executor, 761. surrogate cannot require legatee to refund, 47, 761, «., 774. by birth of child after will, 762. action by, for contributive share, 762. design of the statute, 762. lapse of legacies, 763. effected by legatee's death, before testator's, 763. statutory exception in favor of descendants, 763. of legacy to one " and his heirs," 763. of legacy " pur autre vie," 740. death of legatee prior to execution of will, 764. death of legatee after that of testator, 765. in such case confined to contingent legacies, 765. of bequest to joint legatees, on death of one, 766. of bequest to legatees in common, 766. when bequest depends on prior estate, 767. where legacy to debtor is accepted, 768. where legacy to creditor, whose representative accepts, 768. legacy subject to, falls into residue, 769. if no residuary bequest, falls to next of kin, 769. in case of lapsed devise, 769. where legacy charged on land, 770. interest on, begins to run on general legacies, whei;!, 776. where will revoked and a later one proved, 777, n. not allowed on arrears of annuity, 777, n. on legacy of income for life, 776. on legacy from parent to child, 777. on legacy for maintenance, 777. on legacy to posthumous child, 777, n. on legacy of such securities as may be selected, 776, n. on legacy to widow in lieu of dower, 777. on legacy payable at a certain date, 777. on trust income, 776. on legacy payable out of lands to be sold, 777. when directed to be paid by will, 777. on legacy of a debt, 777. on legacy to executor, 777. validity of, to colleges and literary institutions, 264. depends on law of legatee's domicile, 179. limitation on amount of charitable bequests, 267. not to be determined on probate, 255. effect on, of direction for accumulation, 262. legacy of rents, 260 et seq. suspending absolute ownership, how far illegal, 261. effect of mistake in number of class, on legacy, 273, n. description of subject-matter of legacy, 275. identity of legatee, how proved, 274. payment of, 771. executor's assent to, 771. when legatee entitled to, 772. ""fo'sTm^ Genebai, Index. 1145 LEGACY — continued, under common law, one year after death, 772. under present statute, one year after letters, 772. " letters " includes letters of temporary administration, 772, n. object of statute, 772. executor's option to make, before year ends, 773. liability of executor for erroneous payment, 773, 774. surrogate cannot require legatee to refund, 47, 761, n., 774. remedy of executor, where paid legacy is afterward declared void, 774. within the year, direction in will for, 775. bond may be required in such case, 775. form of bond, 775. action to compel, after one year, 778. when right of action accrues, 778. lies upon demand and refusal, 778. defenses to, 779. execution in, leave to issue, 779. undertaking, before execution, 682, 778, 779. form of undertaking, 682. special proceeding to compel, after the year, 780. jurisdiction of surrogate to entertain, 780. who may bring, 781. remedy of assignee of legacy, 781. when may be brought, 781. must be founded upon a petition, 782, n, contents of petition, 782. limitation of, 782. answer to petition, 783. contents of answer, 783, 784. dismissing proceeding on answer, 784. dismissing proceeding on the merits, 786. questions to be determined, 785. payment should not be ordered pending accounting, 786, n. powers of surrogate upon, 785. proceeding stayed pending action in another court, 786. special proceeding to compel, within the year, 787. surrogate has discretion to entertain, 787. pending probate contest, 788. requisites of petition and proof, 787, 789. decree in, bond necessary, 790. bond must conform to terms of the statute, 790. special proceeding against testamentary trustee, 791. when may be brought, 791. procedure in, 791. supplemental citation to persons interested, 791. answer to, 791. value of specific property bequeathed may be ordered paid, 791. to minors, payment and investment of, 792. bond upon ordering payment to general guardian, 792. form of bond, 792. deposit with county treasurer, 792. applying principal of fund, 793. deposit of unclaimed legacy with county treasurer, 1012. when made, 1012. how withdrawn, 1012. LEGATEE: as party to proceedings in Surrogate's Court, 91, 98. assignee of, as party, etc., 97. accepting legacy, estopped from attacking will, 257, 280, n. as witness to will, effect on legacy, 171. LETTERS OF ADMINISTRATION. See Administration. 1146 Genebai, Ihbex. ^TZZnT LETTERS OF GUARDIANSHIP. See Guardian. LETTERS OF TRUSTEESHIP. See Trustee. LETTERS ROGATORY: power of surrogate to issue, 124, 127. LETTERS TESTAMENTARY: general " letters testamentary " defined, 290. are merely evidence of title, 131, 290, 293, 325. " executor " defined, 291, 513. " probate " and " letters " distinguished, 290. executor nominated in will, entitled to, 291. express nomination, 291. implied nomination, 291. selection under power, 291, 294. must be made within thirty days, 294. mode of such selection, 294. when power of selection deemed exhaustive, 294. no limit on number of persons nominated, 292. need not separately qualify as trustee, 320. those receiving deemed one person, 292. granting, for different States, 292. for separate functions, 292. for definite period, 292. limited letters, 292. Jurisdiction of surrogate to grant, 293. only surrogate has power to grant, 293. when surrogate may grant, 293. on proof of will before him, 293. on establishment of will by action, 293. on recording foreign will, 293, 333. pendency of proceeding to revoke probate, effect of, 291, n. renunciation of right to, 295. mode of, 296. agreement to renounce, void, 295, n. surrogate no discretion as to, 295. retraction of renunciation, 297. cannot retract after qualification, 297. surrogate's discretion as to, 297. implied renunciation of right to, 298. what omissions construed as, 298. order requiring executor to qualify, 298. declaring renunciation, 298. discretion as to granting letters after renunciation, 298. executor named in, can act only, 299. one not named in, deemed superseded, 299. limited powers imder, pending proceeding to revoke probate, 291, n. form, signing, test and recording of, 301. where issued from another court, 301. bond on, 302. where nonresident executor must give bond on, 302. to whom letters may issue, 303. married women, 304. nonresidents, 302. nonresident aliens, 305. infants, incompetents, etc., 303. one incapable of making a contract, 303. one convicted of crime, 303. drunkards, etc., 303, 307. objections to granting, 309. adversity of interest, 308. drunkenness, dishonesty, and improvidence defined, 307. staying issue of letters thereupon, 309. "TSJ" Geneka. Ixdex. 1147 LETTERS TESTAMENIARY ~ continued. specification of, 309. disposition of, 310. in what cases obviated by bond, 311. removal of disability, 306. supplementary letters, 306. successive letters, how time reckoned on, 323. priority among different, 324. effect of, as evidence, 325, 562, 1072. are retroactive, 130, 324, 563. of trusteeship, not usually necessary, 321. exception, 321. on appointing successor, 322. bond of successor, 322. ancillary letters, on foreign probate, 312. practice to grant, independently of statute, 312. includes ancillary letters of administration, c. t. a., 312. which Surrogate's Court has jurisdiction, 312, 313. will must be one of resident of State where probated, 312, n. existence of assets in surrogate's county, necessary, 313. when granted, 312. may be 'granted on probate by court of United States consul, 312, n. proof necessary, 312. application for, how made, 313. where made, 313. petition for, 313, 718. notice of, to creditors, 314. proceedings on hearing, 314. to whom issued, 315. where two or more named in foreign letters, 315. qualification of grantee, 315. bond of grantee, 316. rights and powers, 318. revocation of, by action to set aside probate, 424. under surrogate's general power to open, etc., decree, 425. power to decree, specially given to surrogate, 44, 50, 59, 425, 429. power confined to our courts, 424. incidental to other proceedings, 426. to decree revoking probate, 425. on failure to renew bond on request of creditor, 426, 462. on request of surety, 426, 465. on proof of later will, 427. on stay pending appeal in certain cases, 427. summary, on surrogate's own motion, 428. for failure of nonresident, etc., to account, when cited, 428. for absconding, etc., to avoid citation, 428, 505. for lying in jail, in inventory proceeding, 428, 505. in case of temporary administrator neglecting to deposit funds, 428. who may apply, 429, 437. on petition of creditor or person interested, 429, 437. who deemed a person interested, 437. incompetency and disqualification as cause for, 430. malfeasance, dishonesty, etc., 431. gross negligence, 431. failure to assert decedent's title to property, 431. particular grounds stated, 431. asserting wrongful claim to property, 431. dissensions between representatives, 431. false suggestion of fact, 433. refusal to account when ordered, 954. to inventory certain assets, 431, n. 1148 Genebal Indbx. TS^r LETTERS TESTAMENTARY — continMed. defiance of directions in will, 431, n. removal from State, 435. disobedience of direction by surrogate, 432. •wUlful violation of law, 432. on happening of contingency named in will, 435. particular grounds against executors, 434. against temporary administrator of absentee, 436. petition for, 438. surrogate no power to grant, except by statute, 429. power discretionary, 429. discretion, how far reviewable, 429. pendency of action for, no bar, 437. cannot be granted ex parte, except in summary cases, 438. citation and service, 438. proceedings on the hearing, 439. answer to be filed, 439. burden of proof, 439. dismissing proceedings notwithstanding proof, 440. bond to prevent removal, 440. decree of revocation, costs, 441. must be recorded, 441. on resignation of executor, 442. grounds for allowing, 442. granting, discretionary, 442. petition for, and order to account, 443. proceeding same as on accounting, 443. citation and service, 443. accounting on revocation, 444. . reappointment, when allowable, 447. appointment and powers of successor, 445. petition for accounting by successor, 444. effect of, on pow^ers of executor as trustee, 446. of authority of executor in both capacities, 446. cessation of powers, 448. effect of, 448, 1072. no stay, though decree appealed from, 441, 448. validity of prior acts, 130, 448. relate back to death of testator, 130. of authority of testamentary trustees, 449. LIFE TENANT: of chattel, security to remainderman by, 987. of legacy, security for, 749. where legatee is also trustee, 749, n. appointment of receiver for legacy to, 749. security by, for proceeds of sale of realty, 464, n. LIMITATION: of action on surrogate's decree, 1087. of contest of will, after probate, 279. of proceeding to compel filing of inventory, 501. of action on claim rejected, 639, 646. waiver of limitation in such case, 649. of action for legacy, 778. of proceeding to compel payment of legacy, 7,82. to compel payment of distributive share, 833. to compel accounting, 932. to revoke probate of heirship, 1125. to sell, etc., lands, 846. of time to appeal from surrogate's court, 1137. of action to recover chattel from representative, 565. by and against representatives, 565. suspension of, as to claims by and against executor, etc., 644. T7eXJ" Ge^ebal I:.dex. 1149 LIMITATION — continued. ol action to establish lost will, 234, n., 565, n. to determine validity of probate, 138. on surrogate's decree, 1087. of actions surviving to representatives, 565. on debts due representatives from estate, 644. of action to establish will, 234, n., 565, n. by executor, etc., to collect assets, 565. LINEAL RELATIONS: right of, to share in decedent's assets, 769 et seq., 826. descent of real property to, 797. LIQUIDATION: of claims against decedent, 631 et seq. LOST PROPERTY: allowance for, on accounting, 627, 628. LOST WILL: establishment of, by action, 59, 61, 134, 234. limitation of such action, 234, «.., 565, n. jurisdiction of Federal court, 63. jurisdiction of surrogate to take proof of, 234. coextensive with that of supreme court, 234. existence of,i 235. burden on proponent to show, 235. due execution, 236. fraudulent destruction, 237. contents of, 238. theory as to proof of, 238. issuing letters on, 239. declarations of testator on probate of, 238, «. judgment establishing, contents of, 239. LUNATIC. See Idiots, etc. MANDAMUS: will not lie to compel surrogate to sign decree, 965, n. to compel hearing of an application by surrogate, 1130, n. to compel surrogate to proceed and decree distribution, 1130, n. MARK: will signed by, 191. signature by, whether provable by one subscribing witness, 169, 202. See Prohate; Wills. MARRIAGE: as presumption of revocation of will, 228. republication of will after, 197, 228. of female infant, effect of, on guardianship, 1115, n. effect of, on power to devise realty, 208, n. MARRIED WOMAN: status of, as party in Surrogate's Court, 100, 148. competent to make will, 208, n. marriage revokes previous will, 228. republication of will by, after marriage, 197, 228. will of, not revoked by subsequent marriage, 228. may be executor or administrator, 100, 148, 344, n. surviving husband's right to administer estate of, 346, 824. personalty of, 824. interest of, in estate of deceased husband, 821. petition of, for appointment of guardian, 1015, n. guardian of nonresident, 1015, n. of person of, not allowed, 1022. MARSHALLING ASSETS: to pay debts, mode of, 672 et seq. See Debts. 1150 Gb^ebal I^bbx. T7S«r MISTAKES: power of surrogate to correct, by amendment, 67. will invalidated by, 220. immaterial errors, 221. clerical mistakes in will, 221, 259, 260, 274. power of surrogate to correct, in will, 59, 221. in will, not ground for refusing probate, 221. MORTGAGE: of decedent's land, payable from what fund, 595, n., 675. must be paid by heir, or devisee, 595, 675. of decedent's lands, to pay debts, 869, 870. See Debts; Real Estate, etc. MOTIONS: what proceedings commenced by, 68, 69. no one not a party can make, 105. MUTUAL WILL: petition for probate of, contents, 154. of husband and wife, how operates, 154, n. operation of, generally, 154. if revoked, enforceable in equity, 154, n. NATURALIZATION: surrogate has power to grant, 51. NEW TRIAL: surrogate's power to grant, 52, 54. on appeal from Surrogate's Court, 1145. costs on, after appeal, 1108. motion for, in proceeding to sell, etc., real estate, 864. to what court made, 864. appeal from order for, 865, 1146. coats of motion for, 1117. NEXT OF KIN: defined, 93, 269. service of citation on, when unknown, 75. as parties to proceedings, 92, 93. widow and husband not, 94, 269, n., 821. may contest validity of will after probate, 93. adopted children are, 92, 819. rights of, in intestate's estate, 819. See Intestate Succession. NONRESIDENT: copy of will, etc., sent to secretary of state, 251. may receive letters, 302, 343. as executor, when required to give bond, 302, 473. alien cannot be executor or administrator, 305, 361. intestate, jurisdiction of surrogate as to, 338, 344. will of, establishment by action, 61, 135. service of citation on, by publication, 79. personally without the State, 82. personally within the State, void, when publication ordered, 76, n. See Administrator; Citation ; Letters. NUNCUPATIVE WILL< who may make, 240. when mariner deemed at sea, 240. history of law of, 240, n. mode of execution of, 241. proof of, 242. contents of petition. 242. of citation, 242. OATH: of representative. See Administrator ; Letters. of appraiser. See Assets. OBJECTIONS: to appointment of execator, 309. See Letters. disposition of, 310. obviating, by giving bond, 311. to account, 961. to probate of will, 161. ORDEB : of surrogate, defined, 1088. must be signed by surrogate, 1088. intermediate, how enforced, 1089. final, how enforced, 1001 et seg. See Decrees. PARENTS: includes both father and mother, 229. when entitled to distributive share, 828. descent of real estate to, 799, 800. of illegitimate, right of inheritance of, 804, 829. PARTIES IN SURROGATE'S COURT: in general, 89. jurisdiction of, how acquired and proved, 71, 1079, 1081. not every person interested may institute proceeding, 89. having some interest, to proceed separately, when, 89. who are necessary, 90. persons constituting a class, 89. rules of equity not altogether prevalent, 89. designations of, 90. " interested," who are, 98, 143, 437, 934, 936. as witnesses on probate, 170, 172. various classes of, enumerated and considered, 91. heirs-at-law and next of kin, 92, 93. adopted children, 92. illegitimate children, 92. post-testamentary children, 92. aliens, 92, n. widow and husband are not next of kin, 94, 269, ». creditors, 96. assignee of creditor, 97. assignee of legatee, 97. receiver of distributee, 97. persons interested in estate, 98, 143, 437, 934, 936. executors and administrators, 99. co-executors, etc., 99. foreign representatives, 99. temporary administrator, 97, n. married women, 100. legatees, 91, 98. though their interest he assigned, 97, n. infants and incompetents, 108. divorced husband or wife, 95. death of, effect of; revivor after, 101 et seq. intervention of, 104 et seg. who may intervene, 104. application for leave to intervene, 106. what interest entitles one to intervene, 104. must be before final decree, 106. no one not interested can apply, 89, 105. right to apply does not arise until hearing, 106, n. right of creditor to apply not lost by failure to file claim, 106. order permitting, 107. order bringing in third parties, 107. in probate proceedings, 104, 107, 154o. of beneficiary under former will, 154o, n. 1152 Gbkeba. Index. ^f.^r PARTIES IN SURROGATE'S COURT — continued. after probate, of person not cited, 107. on accounting, 105, 958. county treasurer may intervene for purposes of transfer tax, 970. in other proceedings, 105. on appeals, 1132, 1133. on probate of heirship, 1122. examination of, before trial, 127. attendance of, power of surrogate to order, 52. infant, to be represented by ^uardiaq ad litem, 108. to be cited on probate, 99, 157. public administrator, 158. attorney-general, 104, «., 158. on accountings, 940, 957. PARTIES 10 ACTIONS: by and against representatives, 568. PARTNERSHIP: surviving partner a trustee for estate of deceased partner, 533, n., 612. liability of representative for continuing, 612. debts, marshalling assets to pay, 676. PARTNERSHIP PROPERTY: when assets of deceased partner, 533. surviving partner entitled to possession of, 533. holds decedent's share as trustee, 533. purchaser takes subject to equities, 533,- n. PERPETUITY: rule against creating, in land, 261. rule against creating, in personalty, 261. effect of creating, 263. rule against, applied to gifts, 267. PERSONAL PROPERTY: defined, 145. a debt is, 145. PERSON INTERESTED: in estate or fund, defined, 98, 143, 437, 934, 936. proof of interest of, as party, 98. may apply for revocation of probate, 280. as witness on probate proceedings, 170, 172. PETITION: presentation of, when deemed commencement of proceeding, 70. a preliminary to citation, 72. must be in writing, when, 72. verification of, 72. in New York county, when must be served with citation, 76, n. improper joinder of different grounds for relief, 88. irregularities in, cured by appearance, 85, ■«. PLEADINGS: in Surrogate's Court, number and form of, 87. may be oral, 87. but may be required to be written, 87. amendment of, 57. verification of, 87. effect of failure to verify, when required, 87. in New York county, must be in writing, 87, n. demurrers unknown in Surrogate's Court, 87. in action by or against executors, 569. POSTHUMOUS CHILD: descent of real property to, 808. share of, in personalty, 826. will impliedly revoked by birth of, 229. may compel accounting, 933. ""tZTonZ' Gbnebai. Inbbx. 1153 POST-TESTAMENTARY CHILD: a party in Surrogate's Court, 92. may maintain action for distributive share, 92, 229, 762. birth of, no groimd for refusing probate, 229. may compel accounting by executor, etc., 933. POWERS: of sale, under foreign will, 250, n. of appointment, selection of executor under, 291, 294, delegation of, by executor, 513, 594. PREFERENCE : of claim to administration, 343. in payment of decedent's debts, 662 et seq. PRESUMPTION: of death of decedent, 186, 351- of request that -witnesses sign will, 198, 201. as to due execution, from attestation claime, 187, 203. want of attestation clause raises no, against will, 203. • of testator's knowledge of contents of will, when, 205, 206. as affected by fact of impaired faculties, 206, 217. of fraud and undue influence, when, 217. none from old age, alone, 217. nor from injustice of testamentary provisions, 218. none from opportunity or interest, 219. of revocation of will, none from tearing, etc., 224, 225. of duplicate will, 154. from charge of property, 227. from subsequent birth of child, 229. from subsequent marriage, 228. as to existence of lost will, 235. of genuineness of ancient will, 132, 252. as to marriage, etc., on application for letters of administration, 358, n. PRIVILEGED COMMUNICATIONS: rule as to evidence of, in probate proceedings, 174. between testator and clergyman, 174. and attorneys, 174, 176. and physicians, 174, 175. right to exclude, siirvives, 174. See Evidence; Probate. PROBATE OF WILL: preliminary observations, 128. necessity for, 132. will never presumed in absence of, 132. when not required, in case of ancient will, 132, 252. production of will for purposes of, 129, 149. not a condition of, 149. power of surrogate to direct deposit company to produce will, 129. duty to apply for, 129, 149. effect of interfering with assets before, 130, 131. right of executor to assets before, 131. proceedings before application for, 128 et seq. protection of purchaser unless had in four years, 132, 889. caveat against, before Revised Statutes, 133. by whom filed, 133. abolished, 133. establishment of wills by civil action, 61, 134. where original cannot be obtained, 61, 134. in case of lost or destroj'ed will, 61, 134, 234. of foreign wills of personalty, 61, 135. judgment establishing will, 136. action to determine validity of, 60, 138. by whom brought, 138. 73 1154 genbea. inbex. Ts;r PROBATE OF WILL — continued. triable by jury, 138. issues in, confined to what, 138. verdict conclusive, 138. verdict may be directed, 138, n. limitation of such action, 138. what wills provable by surrogate, 139, 143. jurisdiction of surrogate, when exclusive, 59, 143, 147. before the Bevised Statutes, 59, 182. when concurrent, 147. extent of, 255. as affected by place and mode of execution, 140. as affected by residence and locus of property, 140, 141. distinction between wills of realty and personalty, 140, 141. residence considered, 140, 143a. declarations of testator as to his residence, 143o, n. is one of intention, 143a. personal property distinguished from assets, 141, n. in case of residents of the State, 141, 143, 143a. in case of nonresidents, 141, 143, 149, n. in case of foreign will not produced, 149. existence of personal or real property as basis for, 141, 144. application for, when should be made, 143. right, how affected by question of residence, 143, 143a. where assets come into State after death, 142. nature and locality of personal property, 145. nature and locality of real property, 146. where application made, 144. to be made to which surrogate, 144. right to make, irrespective of validity of devise, 244, n., 255, n. ■who may make, 148. creditors, 96, n., 148. may be made by agent, 148. in case of foreign will, 150. in case will is inaccessible, 149. in case will is in foreign language, 153. in ease of duplicate and mutual wills, 154. in case of lost or destroyed will, 234. in case of will of monomaniac, 211. in case of nuncupative will, 240. petition; contents of, 92, n., 152. to be in writing, 151. verification of, 151. supplemental, 154a. withdrawal of, 156. dismissal of, when, 156. in case of duplicate will, contents of, 154. copy of, to be served with citation, in New York county, 76, n. in case of nuncupative will, 242. citation, when to issue, 159. supplemental, 154a. when unneces.sary, 151. contents and service of, 159. service of, how made, 159. by whom made, 159. original to be filed, 159. who to be cited on, 99, 157. where decedent was a married woman, 157. beneficiaries need not be cited, 99 public administrator, 158. attorney-general, 104, «., 158. person not cited may appear, 154a. PKOBATE OF Will.— continued. person cited need not be re-served, on supplemental citation, 154a. intervention of parties on, 104, 107, 154a. of beneficiary under former will, 154a, n. death of party, effect of, 101 et aeq. appointing special guardian on, 159. bearing, general regulations as to, 160. practice on, where no contest, 151, 160. doubt as to compliance with statute requires rejection, 187. surrogate's duty of inquiry, 160, 163, 188. no duty to admit will because not contested, 163, n. proofs to be in writing, 160. what proof required, 160. oral examination of witnesses may be demanded, 160, 164. may be taken by assistant in New York county, 160, n. may be taken by surrogate though begun before predecessor, 56. contest, method of, 161. filing objections, 161. may be filed after witnesses examined, 161, n. acts as caveat, 161, n. no particular form of objections necessary, 161. amending objections, 161. requiring written pleadings, 161. notice of hearing of, must be given beneficiaries, 162. determining contestant's interest, 104, 133, 163. executor of former, may contest later will, 104. creditor of devisee may contest codicil which supersedes will, 96, n., 104, n. consolidating proceedings, 155. reference and jury trial on, 121, 164. reference to surrogate's assistant in New York, 117, 160, «. contents of order for jury trial, 164. transfer to Supreme Court, 164. review of verdict, 164. motion for new trial, where made, 164, n. what questions may be raised on, 180, 184, 256. by intervening party, 104, n. court not confined to issues raised by answer, 184. questions relating to factum of will, 180, 181, 184, 254. meaning of factum, 180, 181. questions relating to exposition of will, 180. questions relating to validity, etc., of will of personalty, 255. facts material to question of probate, 180. testamentary character of the will, 182. need not contain technical language, 182. memorandum of testamentary intention insufficient, 182. animus testandi must be present, 182. will must conform to testator's intention, 220. depends on sub.stance, not on form, 182. requirements before Revised Statutes, 182. conditional will, 183. circumstances of execution, delivery, and custody, 184. formalities of execution, 189. subscription, 190. must be signed at end, 190. effect of instruments annexed, 189. meaning of " end " of will, 190. substantial compliance with statute sufficient, 190, 195. intention of testator to comply with statute immaterial, 189. may be signed by mark, 191. by hand of third person, 191, 192. 1156 G...... I:.BEX. TaSnr PROBATE OF WILL — continued. must be signed or aclcnowledged in presence of witnesses, 193. attestation by witness, 193, 198. acknowledgment of signature, 19.3. what is a sufficient acknowledgment, 193^ witness' additions, 200. publication by testator, 194. by third person in testator's presence, 195. publication must be unequivocal, 195. testamentary character of paper must be declared, 194. sufficiency of proof of publication, 195, 196. object of publication, 194, 205. republication by testator, 197. what formalities necessary to republication, etc., 199. sequence of acts of execution, publication, etc., 199. formalities must be completed before death, 189, n. law of place as affecting execution, 177. law at time of testator's death, 177. as to wills of real property, 178. wills of personalty, 179. testator's knowledge of contents of will, 205. presumption of testator's knowledge of contents, 205, 206. testator's competency as to age, 208. old age as affecting capacity, 210. alterations in will, effect of, in, 224^ in case of will of monomaniac, 211. in case of lost or destroyed will, 234. existence of will, 235. due execution, 236. fraudulent destruction, 237. contents of will, 238. declaration of testator as to contents of, 238, /j. theory as to proof of, 238. issuing letters on, 239. in case of nuncupative will, 241. in case of conditional will, 183. birth of post-testamentary child, no ground for refusing, 229. evidence on hearing, 160. attestation clause, prima facie proof of due execution, 187, 203. due execution, never presumed without proof, 132, 201. except in case of ancient will, 132, 252. order of proof, 185. death and identity of decedent, 186. law existing at time of probate governs, 174. questions of evidence governed by lem fori, 179. custodian of will may be examined, 184. will may be photographed, 169. photographs of will cannot be received, 169. will may be subjected to chemical tests, 169. subscribing witnesses to be examined, 165. production of, 165. all need not be produced, 188. when in another county, 125, 167. surrogate may compel attendance of witnesses, 165, proof of disability of witness, 166. dead, disabled, or absent witnesses, 125, 168, 169. dispensing with testimony of absent witness, when, 166. commission to procure, 166. death of subscribing witness, effect of, 169. qualification of survivor to prove testator's mark, 202, 203. aged, sick, and infirm witnesses, 168. PROBATE OF WILL — coniijwed. proof of handwriting, when allowed, 169. in case of will signed by mark, 169, 202. dispensing with proof of handwriting, when, 169. other than subscribing witnesses, 170. qualification of witnesses as to execution, 171. upon other i-ssues, 172. corroboration by third persons, 204, n. contradicting subscribing witnesses, 204. ' interested persons as witnesses, 170. when called by contestant, 172. what interest will disqualify, 172. test of disqualifying interest, 172. executor, 170, 172, n. legatees, 171, 172. heirs-at-law, 172. husband or wife of party, 170. widow, 172. mother of beneficiary, 172, n. releasing interest, 173. privileged communications, 174. physician, competency of, 174, 175. of attorney, 174, 176. when subscribing witness, 176. right to exclude, survives, 174. waiver of right to exclude, 174, n., 175. how waiver made, 175, n. opinions as to testator's sanity, 213. of medical experts, 213. of subscribing witnesses, 214. of nonprofessional witnesses, 214, 215. declarations of testator on proof of lost will, 238, m. as to revocation, 225. in aid of proof of publication, 196. upon question of mental capacity, 213, n. as to undue influence, 218, n. burden of proof, rules as to, 187, 212. on proponent to show testator's knowledge of contents, 205. as to want of undue influence, 217. to explain unnatural will, 217. that testator was of lawful age, 187. as to mental capacity, 187, 212. but slight evidence of capacity necessary, 212, n. on contestant, when, 212. to show delusions, 212. undue influence, 212, 216. shifting burden as to testamentary capacity, 212. presumption of fraud, undue influence, etc., 217. of death, 186. of testator's knowledge of contents of will, 205, 206. from lack of attestation clause, 203. question of testamentary capacity for a jury, when, 207, n. *eight of evidence, 188, 204. testimony of subscribing witness does not control, 201, 204. effect of witnesses' failure of recollection, 201, 204. extrinsic evidence as to factum, 184. in aid of interpretation, 270. to correct clerical errors in will, 221, 259, 260. meaning of technical words cannot be varied by, 270. to explain ambiguity as to beneficiary, 274. to aid in reading, testing, and applying will, 271, 272, 273. rule of admissibility of, 270, n. 1158 Ge^eba. Inbex. T;SJ" PEOBATE OF WILL — continued. decree granting or refusing probate, 243. must state whether probate contested, 243. grounds of decision may be entered in, 244. all issues to be decided in, 244. may admit part of will, 245. may admit will without reference to validity of dispositions 244, »., 255, n. may construe will, 244. offensive passage in will omitted, 245, m. effect of, generally, 247. as to personalty, 1070. conclusive as to what, 1070. as to factum of will, 1070. as to question of construction and validity, J070. as to real property, 1071. when subscribing witness not examined, 1071. on persons not cited, 152, n. as evidence, 1071. when surrogate may open, 276, 277. record of, 249. filing nonresident will with secretary of state, 251. recording foreign wills, 250. will established in action, 115, 249. disposition of will after probate, 248. certificate to be indorsed on proved will, 246. effect of record as evidence, 249. record of ancient wills as evidence, 132, 252. revocation of, on motion, 276. not affected by limitation of one year, 54, 55, 279. grounds of, 276. granting, discretionary, 276. by action, 424. by Supreme Court, 276, n. by direct proceeding, 277. matter of right, 277. applies only to wills of personalty, 278. limitation of proceeding, 279. who may maintain, 280. effect of pendency of appeal from decree, on, 279, re. of prior adjudication by Supreme Court, 279, n. doctrine of estoppel, applied to, 257, 280, n. petition, contents of, 281. persons to be cited, 282. service and return of citation, 283. suspension of executor's proceedings pending, 284. proceeding on return of citation, 285. burden of proof, 285. will must be proved de novo, 285. issues triable, 286. validity of will not an issue, 286. testimony of probate witness on, 285. decision and decree, 287. notice of decree, to be published, 288. appeal from decree, 289. appeal does not stay execution of decree, 289. effect of decree, 287. must also revoke letters, 290. PROHIBITION, WRIT OF: where surrogate revokes letters ex parte, when, 438. not granted to restrain surrogate from proving will, 1081, n. ^fo'^sZZ:!' Genbba. Inbex. 1159 PROOF: of claim against decedent. See Debts. of heirship. See Heirship. of will. See Probate. PUBLIC ADMINISTRATOR: the office of, its nature and object, 374. who are incumbents, 374. powers and duties of, as collector, 376. as administrator, 343, 344, 346, «., 378. as temporary administrator, 402, 404. as administrator, c. t. a., 328. as administrator de bonis non, 370, n., 378, n. without letters being issued to him, 374. when entitled to citation on probate, 158. sales of perishable property, 376. seizing effects to prevent waste, etc., 376. liability for seizing property of third person, 374, n. may sue on bond of predecessor, 374, n. discovery of property withheld, 376. when permitted, 376. authority, extent of, 375. how evidenced, 377. how superseded, 379. is that of administrator, as well as public officer, 374. must have letters issued in order to pay debts, 376. filing affidavit equivalent to issue of letters, when, 376. application for letters in right of priority, 378. as administrator with will annexed, 328. de bonis non, 370, n., 378, n. actions by, not abated by supersedure of authority, 379. to set aside fraudulent transfer by decedent, 374, n. upon bond of temporary administrator, his predecessor, 374, n. may be continued by successor, 3Y9. annual statement of, to be published, 380. time when publication required, 380. contents of, 380. effect of letters as evidence, 377. county treasurer is, virtute officii, 381. functions, as collector, in right of office, 381. to collect and preserve certain intestate's effects, 381. in enumerated cases of intestacy, 381. minimum value of effects, 381. seizure of effects, on surrogate's order, to prevent waste, 381. limited powers of, before letters, 381. bond of, 382. appraisal and inventory of assets, 381. to be filed, 381. penalty for failure to make, 381. letters of collection to, 382. notice of issuing of, to persons claiming administration, 382. of right to administer, to be served, 382. letters of administration to, 344, 378. preferential right to, after creditors, 344, 378. duty to apply for, when, 378, n. when granted, 382. bond to be filed, 382. certified copy of, sent to State comptroller, 382. are conclusive evidence of authority, 377, 382. are subject to revocation, when, 383, n. accounting within one year after, 384. when accoimting compellable, 384. at whose instance, 384. 1160 genbba. inbex. T=;r PUBLIC ADUINISTUATOU — continued. must accept appointment, 382. powers and duties imder letters, 383. subject to surrogate's supervision, 383. supersedure of authority, 385. by letters testamentary to another, 385. of administration to another, 385. delivery of estate upon, 385. validity of prior acts, 385. suits begun by, continued by successor, 385. compensation and expenses of, 384, 385. to pay balance into State treasury, 384. moneys so paid, how obtained by person entitled, 384, n. ^ in counties in which office of treasurer abolished, 381, n. in New York county, is officer of county, 386. formerly a city officer, 386. appointed and removed by surrogate, 386. ' monthly reports by, to be made and published, 386. functions as collector, in right of office, 387. to collect and preserve certain intestate effects, 387. five cases of intestacy enumerated, 387. to sell property not exceeding $20 in value, 387. restriction in case of death without State, or on foreign vessel, 387, n. in cases where executor refuses to act or has died, 387. innkeepers to report deaths to, 388. coroners to report inquests to, 388. undertakers to report burials to, 388. penalty for failure to report, 388. to serve copy of statute on innkeepers, 388. health officer to account to, 388. proceedings by, before letters or their equivalent, 390. may pay funeral charges, 390. collect and preserve estate, 390. discovery of property withheld, 390, m. take steps to procure letters, etc., 390. make advances to intestate's relatives, 390. seize effects by surrogate's order, to prevent waste, etc., 390. delivery of estate to one producing letters, 393, 394. expenses deducted in such case, 393, 394. to apply for letters if estate exceeds $100, 391. when letters dispensed with, 389. where less than $100, notice to be given, etc., 389. proceedings if no claims to property made, 389. affidavit of no claim, to be filed, 389. as evidence, 389. letters of administration to, 343, 344, 391. duty to apply for, when, 378, «., 391. when to be applied for, 391. preferential right to, over creditors, 344, 378. notice of application for, 391. to whom notice given, 391. in case of nonresident alien, 391. court obtains jurisdiction by filing of petition, 391. facts upon which jurisdiction depends, 391. when application for, will be denied, 392. any one may appear and contest granting of, 392. consul-general may appear for foreigner, 391, n. no other than official bond necessary, 392. cessation of authority on denial of, 393. duty of public administrator on refusal of, 393. PUBLIC ADMINISTRATOR — COM iintted. supersedure of authority, 379, 394. any relative may apply for letters within three months, 395. facts to be proved, 395. notice of application to be given, 395. by letters testamentary to another, 379, 393, 394. of administration to another, 379, 393, 394. delivery of estate upon, 379, 393, 394. suits to be continued by his successor, 394. powers, duties, etc., under letters, 395. in general like ordinary administrator's, 395. may sue and be sued, 395. must make and return inventory, 380, 395. to discover assets withheld, etc., 395. sales by, how conducted, 395. proceeds payable to city treasury, 387. to give notice to creditors to exhibit claims, when, 395. to distribute without notice to creditors, when, 395. to pay debts, 395. to account, after six months, 395. final settlement of account, 395. citation and its service in such case, 395. allowances on such accounting, 395. to pay legacies and shares, 395. balance into treasury, 386, 395. to deposit moneys in designated bank, 396. except a sum for current expenses, 396. within two days after receipt, 396. how such moneys obtained by person entitled, 395, n. interest on such moneys belongs to next of kin, 396. object of requiring deposit, 396. disposal of money in hands of, subject to court's direction, 396, n. salary of, 386. commissions of, 386, 397. rate of, 397. a preferred claim, 397. none where application for letters denied, 397. expenses allowed him in any event, 397. but payable into city treasury, 386. may maintain action therefor, 397. liability of, to city, though a county officer, 386. city for acts of, 386, 397. such liability direct and primary, 397. personal liability of, in addition, 399. surrender of papers, money, etc., to successor, 394, 399. upon appeal by, no undertaking necessary, 395. m Kings county, peculiarity of statute as to, 401. rules governing officer, in other counties, extended to, 400. ■preference to, after next of kin, 378. applies only to nonresident decedents, 401, n. over Brooklyn Trust Co., 401, n. letters of temporary administration to, 402. functions of, in right of office, 401. not only to collect, but to administer, 401. in enumerated cases of intestacy, 401. suits may be maintained by, when, 401. presumption of intestacy, 401. commissions and expenses of, 402. letters of collection to, without security, 402. in Richmond county, possesses powers of county treasurer, 381. cannot act in cases where New York public administrator has jurisdiction, 381. 1162 General Index. References are to sections. PUBLICATION: of citation to nonresidents, 79. order for, how made; contents, 81. upon whom service by, may be made, 79. of notice to creditors to present claims, 636. of decree revoking probate, 288. PURCHASER: from heir protected, unless probate had, etc., 132, 247, 846. from executor, in payment of latter's debt not protected, 908. QUARANTINE: of widow, statutory provision as to, 560. period of, 560. not affected by nonassignment of dower, 560. relates only to lands in which widow is dowable, 560. as to lands held by husband as tenant in common, 560, n. right ceases after forty days, 560. what is reasonable sustenance, 561. right not affected by insolvency of estate, 561. is irrespective of the articles set apart, 561. is a personal right, 561. discretion of surrogate as to amount, 561. subject to appeal, 561. cannot include maintenance of children, 561. nor mourning outfit, 561. includes supplies left on hand, 561. and reasonable cost of board, 561. administration of intestate's goods arriving at, 387. QUALIFICATION: of representatives. See Admimstrator; Executor; Letters. REAL ESTATE, PROCEEDINGS TO SELL: executor, etc., no power over land, unless given by will, 528, 530. land made liable for debts, if personalty insufficient, 834. objects aimed at, by the statute, 835. history of the statute, 836. nature of proceedings, 837. action in Supreme Court not maintainable, 834, 839, n. jurisdictional facts, rulings as to, 838, 850. statutory requirements must be strictly pursued, 835. what surrogate has jurisdiction, 839. what confers jurisdiction, 839, 850, ■». not confined to lands in surrogate's county, 839. what property liable to be applied, 840. decedent's interest in contract for purchase, 840, 841. property purchased with pension money, 844, n. effect of power of sale in will, 842. when power of sale implied, 594, n., 842. where lands charged with payment of debts, 840, 843. when intention to charge lands implied, 843. husband's right of curtesy does not prevent sale, 841, n. lands exempt, 840, 844. for what purposes sale, etc., may be had, 845. decedent's debts and funeral expenses, 845. debts, other than decedent's, excluded, 845. " costs payable out of estate," excluded, 845, n. claims of representative for reimbursement, 845, n. taxes accruing subsequent to decedent's death, 845. surplus on foreclosure, applicable to payment of debts, 846, n. when application to be made, 846. ""TZTonZ' Geneba. Inbex. 1163 EEAL ESTATE, PROCEEDrNGS TO SELL — continued. limitation of proceeding, 846. policy of statute as to limitation, 846. lien of creditor for three years, 685, 846. purchasers from heirs take at their peril, 846. creditor's time extended, if claim in litigation, 848. filing notice to procure such extension, 848. application to cancel such notice, 848. sale in partition will not prevent proceeding, 846. who may apply for sale, 849. petition; contents of, 850. jurisdiction depends upon petition, 850, n. inquiry by surrogate, in order to frame, 850. prayer of, 851. accounting by representative may be required, 852. jurisdiction of the person of parties, 853. who necessary parties, 851, n., 853. infant parties, 854. citation, when to issue, contents of, 855. to whom directed, 855. may be issued to persons not named in petition, 855. when to be made returnable, 855. when publication necessary, 855, n. hearing before surrogate, 856. intervention of creditors on, 856. disputed claims of strangers determinable on, 858. jurisdiction of surrogate as to disputed claims, 858. determining insufficiency of assets, 859. who may oppose application, 856, 857. defenses allowed, 857. of statute of limitation against debt, 858. sufiieiency of assets to pay debt, 859. effect of admissions of representatives to bind heirs, 860. effect of judgment as evidence of debt, 861. how proved, 861. must have been rendered on the merits, 861. on offer, excluded, 861. on inquest, 861. costs in, excluded, 861, 862. jury trial in reference to question of fact, 121, 863. form of order directing, 121, 863. motion for new trial, 864. to what court made, 864. verdict of jury to be certified to surrogate, 864. appeal from order for new jury trial, 865. costs of such appeal, 865. reference may be ordered, 863. staying proceedings pending accounting, 866. enjoining sale, 866, n. discontinuance of proceeding, 867. proof necessary f6r decree, 868. vouchers of debt to be filed, 869. decree, general requisites of, 869. conclusive as to insuflSciency of assets, 869. must describe property, 869, 874. must specify debts allowed or rejected, 869. must direct mortgage, lease, or sale, 869. executor must give bond, 869, 874, 876. if not, freeholder appointed to sell, 869. must direct mortgage or lease, if feasible, 870. three appraisers to be appointed, 870. duty of appraisers, 870. report of appraisers, 870. 1164 • Gehebal IHDBX. T=nr REAL ESTATE, PROCEEDINGS TO SELL — continued-. when must direct sale, 871. all of decedent's realty need not be sold, 871. who may impeach decree, 872. cannot be attacked collaterally, in general, 872. questioned only on appeal, 872. heirs-at-law may appeal from allowance of disputed claim, 872. defects and irregularities in, not affecting title, 873. when sale delayed if title controverted, 869. executor to give bond before executing, 869, 874, 876. form and penalty of bond, 876. freeholder, when appointed to execute, 877. bond of, similar to that of representative, 877. how nominated, 877. vacating his appointment, 877. effect of death of representative or freeholder on execution of, 875. successor to complete sale, 875. must give security, 875. order directing execution of, 878. provision in, for investment of infant's surplus, 900. for investment of dower fund, 899. effect of other pending proceedings for same object, 902. stay pending such proceedings, 902. decree, where sale had in such other proceeding, 902. surplus in such other proceeding payable to surrogate, 903. surplus, how distributable, 903. proceeding therefor, 903. lease or mortgage instead of sale, 870. lease, maximum length of, 870. effect of, 870. who to execute, 874. sale may be private, 871, 874, 884. or public, 871, 884. minimum price allowable, 874. of distinct parcels, to be made in what order, 879. where heir has aliened such estate, 879. where devisee of two undivided interests has aliened one, 879. where undivided share devised or aliened, 880. or a precedent estate created, 880. application of proceeds in such cases, 880. may be subject to incumbrances, 871. when allowed pending appeal relating to debt, 881. leave given by appellate court, 881. on notice to all parties, 881. distribution of proceeds in such case, 881. disposition of surplus, 881. terms of credit allowed on, 882. in case of sale of interest under a contract, 882. manner, place, and notice of, 883. penalty for selling without notice, 883. validity of, not affected by failure to sell all property advertised, 883. if private, must be by contract subject to approval of surrogate, 884. who may not buy at, 885. effect of purchase by forbidden persons, 885. penalty for making fraudulent sale, 884, n. report of, to be filed, 886. application to set aside sale, 885. REAL ESTATE, PROOEEDTNGS TO SF.1,1, — continued. order vacating, when to be made, 886. upon notice, 886. partial vacation, 886. resale, when to be directed, 886. surrogate may direct repayment of deposit by purchaser, 886. order confirming, when must be made, 887. form of order confirming, 887. cannot compel purchaser to complete, 888. of interest in land contract, 890. subject to all payments thereon, 890. terms of sale on, 890. bond of purchaser, to secure payments, when required, 890. penalty of, 890. of part of interest in land contract, 892. right of purchaser to enforce performance, 892. further sale after partial, 895. conveyance must be executed by person selling, 887. form of, 887. limited effect of, 889. where land aliened, and letters delayed four years, 889. bars dower, not assigned, 889. subject to subsisting charges, 889. priority of, over one executed before, but not recorded, 889. carries growing crops, 889. of interest in land contract, effect of, 891. of partial interest in such contract, effect of, 892. proceeds to be paid into court, 893. such payment exonerates heirs, etc., and other lands, 893. notice of distribution, to be published, 893. new hearing as to debts, etc., on return of, 894. established debt again controvertible, 894. upon notice to claimant, 894. further sale to be had, when, 895. proceedings thereon and thereafter, 895. supplementary decree awarding proceeds, 896. disposal of surplus by, 896. appeal from such decree, 896. parties to appeal, 896. must fix sums to be paid or invested, 897. certified copy of, served on county treasurer, 897. securities to be in county treasurer's name, 898. to be approved by surrogate, 898. investment of dower-fund, 899. investment of deposit of infant's surplus, 900. order of distribution of, 901. surplus, final distribution of, 901. application to claims cut off by sale, 901. of proceeds of lands converted by will, 901. husband entitled to curtesy in, may receive gross sum, 901. accounting by representative for proceeds of sale, 905. costs and expenses of the proceeding, 904. amount of, 904. rules governing allowance of, 904. allowance to special guardian, 904, n. evidence of appointment of special guardian after twenty-five years, 906. reimbursement of heir, out of assets subsequently discovered, 907. not ordered where unsecured creditors remain, 907. REAL PROPERTY: order of descent of, 796. defined with respect to descent, 796, n. 1166- Genebai. I^bex. T=nr REAL PROPERTY — continued. conversion of, into personal property, 269, 529. interest in, to be inventoried as assets, 489, 530. ■sales, etc., of, by executor, 594. REAEGUMENT: when allowed, 54. RECEIVER: as party to proceedings, 97. with powers of administration c. t. a. appointed by Supreme Court, 326, n. of property, may petition for payment of distributive share, 97. RECORDS: books for, to be kept by surrogate, 24. what must be recorded, 24, 41, 249. of predecessor, surrogate to certify, 249. surrogate must record will, after probate, 249. such record, or a copy, made evidence, 247, 249. of proceedings taken before special oflBeer, or court, 18, 19 what decrees must be noted in margin, 24. recording domestic will of realty in surrogate's ofiSce, 247, 249. copy of record of ancient will as evidence, 132, 252. surrogate to record will proved by action, 136, 249. recording copy foreign will in surrogate's office, 250. in office of secretary of state, 251. custody of, 27. search of, 26, n. fees for copies of, 39. to be delivered to successor, 26. REFERENCE: officials appointed by surrogate, not to act as referee, 22. surrogate's power to order, 117. cannot refer intermediate account, 817, n. to take testimony in probate cases, 117. to examine account, 963. powers and duties of referee, 118, 964. trial before referee, 975. referee's report and exceptions thereto, 118, 977. need not state findings separately, 118. power of referee where party refuses to proceed, 120, n. of account, 963. of claims against decedent, 117, n., 963, n. compensation of referee, 120. taxing fees of, in New York county, 120. sending report back for further finding, etc., 118, 119, 965. confirming report, 119. RELIGIOUS CORPORATIONS: transfers to, not taxable, etc., 907. REMAINDERMAN: protection of interest of, in chattel, subject to life estate, 987. may require security of legatee for life, 749. REMEDIES: must be pursued separately, 88, 944. RENTS: accumulation of, restriction on power to direct by will, 262. recovery of, by executor, etc., 532. liability- of executor for, 608. due from decedent, preference in payment of, 664, 670. See Assets. RENUNCIATION: of appointment by executor, 295. right to renounce, 295. how effected, 296. agreement to renounce, void, 295, n. ^foTotZr Gbnebal Inbex. 1167 RENUNCIATION — continued. retraction of, 297. executor cannot retract after qualification, 297. exclusion on failure to renounce, 298. effect of, on probate, 3.31, n. of prior right to administration in intestacy, 352. with will annexed, 331. of provision in will in lieu of -commissions, 746. of testamentary guardianship, 1061. REPRESENTATION : doctrine of, 818. among collateral relatives, as to descent, 802, n. as to distribution, 818. REPUBLICATION: of will, 197. by married woman, of will executed before marriage, 197, 228, n. by execution of codicil, 231. RESIDENT: meaning of term, as affecting surrogate's jurisdiction on probate, 140, 143a. RESIDUARY LEGATEE: priority of right to administration with will annexed, 328. RESIGNATION: of executor or administrator, 442. right to resign, not absolute, 295, 442. after acceptance, cannot be retracted, 295, n. of testamentary trustee, 451. of general guardian, 1042. REVIVOR: of proceedings on death of party. See Abatement and Revivor, REVOCATION: generally, 222. by later will, 223. by cancellation or destruction, 224, 225. to be proved by two witnesses, 224. in writing, must be executed with same formalities as will, 223. by codicil, 223. irrevocable will, 223, n. complete destruction not necessary to prove, 224. intention to revoke necessary, 225, 227. effect of alterations on probate, 224. of later will does not revive the first, 230. effect of, on codicil, 226. declarations as evidence of intention to revoke, 225. implied from fehange of property, 227. from inconsistency of later disposition, 223, 227. from subsequent marriage, 228. from subsequent birth of child, 229. of probate of will, 276, 277. of probate of heirship, 1125. of letters testamentary, 429 et seq. of administration, 429 et seq. of guardianship, 1045. See Administrator; Letters; Will. RULES: power of surrogate to make, 58. Wigram's, as to interpretation of wills, 270, n. SAILOR: will of. See Nuncupative Will. SALES: equity will follow assets in hands of purchaser with notice, 522. purchase by trustee presumptively fraudulent, 625. 1168 Genekal Index. T=J" SALES — continued. effect of purchase by executor without power, 522. by one executor, where other refused to act, valid, 524. of stale and doubtful claims, 599, 629. authority of representative to make, 494. by public administrator, 395. by temporary administrator, 411. power of, under foreign will, 250, n. cajinot be delegated, 594. of executor under will, 594. probate and. letters necessary, 594. directions in will to be followed, 594. of administrator, on deficiency of assets, 59S. to bid in property for benefit of estate, 617. to pay debts, etc. See Real Estate, etc. proceeds of, how applied, 594, 597. when to be paid into court, 66. of personal property, when and how made, 598. SEAL: of Surrogate's Court, 5. not necessary to execution of will, 192. SECRETARY OF STATE: filing foreign will with, 251. SECURITY FOR COSTS: in actions by executors, 572. surrogate cannot require, 1103, n. SECURITIES: deposit of, in Surrogate's Court, 66. to reduce penalty of bond, 460. SERVICE: of citation within State, 76. on nonresident within State, when publication ordered, void, 76, n. on corporations, infants, and incompetents, 77. substituted, 78. by publifation, 79. when complete, 81, n. how made, 82, 83. where residence or person unknown, 80. without the State, personally, 82. of papers on attorneys, 86. irregularities in, waived by answering on the merits, 85, n. classes of persons upon whom, to be made, 75, 157. SET-OFF: surrogate cannot entertain defense of, 966. SPECIAL COUNTY JUDGE: when to act as surrogate, 4, 10. bond of, when acting as surrogate, 28, 29. SPECIAL GUARDIAN. See Guardian ad Litem. SPECIAL PROCEEDINGS: all proceedings in Surrogate's Court are, 67. what deemed commencement of, 70. SPECIAL SURROGATE: when to act as surrogate, 4. bond of, 28. SPECIFIC LEGATEE: priority of right to administration, c. t. a., 328. when legacy to, abates, 736, 754. when such legacy payable, 736, 754. SOLDIER: will of. See Nuncupative Will. STATE TREASURER: surplus, on public administration, paid to, 384, 386, 395. STATUTE OF DESCENTS: provisions of, stated and construed, 796 et seq. STATUTE OF DISTRIBUTIONS: provisions of, stated and construed, 816 et seg. STATUTE OF FEAUDS: application of, to executors and administrators, 606. STATUTE OF LIMITATIONS. See Limitations. STAY: of proceedings to sell, etc., lands, pending accounting, 866. STENOGRAPHER: appointment and duties of, 25. minutes of, when to be bound and filed, 25. fees of, 25, n. SUBPCENA: power of surrogate to issue, 52. SUBSCRIBING WITNESS. See Probate; Wills. SUBSTITUTION: of other officer, etc., for surrogate, 10, 11. of attorneys, power of surrogate as to, 48, 552. SUPERVISORS: board of, to appoint substitute for surrogate, when, 10. to fix salary of surrogate's clerks, 20. SUPPLEMENTARY PROCEEDINGS: on nioney decree, 1092. cannot be maintained upon decree for payment of debt, 696. SUPREME COURT: power of, to relieve against decree of probate, 276, n. transfer of proceedings to, on disability of surrogate, 12, 13. jury trial in, 121, 164, 863. SURPLUS: on public administration, paid into State treasury, 384, 386, 395. on foreclosure after death, goes to heirs, 530. application of, to pay debts, 846, n., 903. payment of, into Surrogate's Court, 66, 903. distributable as real esta^te, 903. on sale, etc., of lands for debts, how distributed, 901. SURROGATE: may be also county judge, 1, 4. may be separate officer, 1. discontinuing separate office of, 1. term of office, 1. elected by the people, 1. must reside in county where elected, 1. a local officer, 1. must hold court in his own county, 1. official designation of, 4. county judge as surrogate, 4, 10. special, 4. acting, 4. temporary, 4. is a judge of a court of record, 7. disqualifications, general, 7. by interest or relationship, 8. by having acted as attorney for party, 7. where he is executor or witness, in will before him, 8. to act as referee, 7, n. partner of, cannot act as attorney before him, 7, 85. to act as attorney, 7, 8. as to charging for advice, 7. waiver of, 9. objection to, deemed waived unless taken at joinder of issue, 9. discretionary in certain cases, whether he will act, 8. 74 1170 -^ T References are Geneeal Index. ,„ .wntinnji. to sections. SURROGATE — continued. disqualifications, special, 8. to be counael, etc., for or against certain parties, 7, 8. in probate, 8. cannot be waived, 9. disability, 7, 10. substitute for, 10. in case of vacancy or disability, who is, 10. vacancy, how filled, 2, n. in counties other than New York, 1, n., 10. in New York county, 12. appointment of temporary surrogate, 10. in case of disqualification, 11. in counties other than New York, 11. ■certificate of disqualification to be filed, 11. contents of certificate, 11. in New York county, 12. in Kings county, 13. Supreme Court to act, when, 12, 13. proof of authority of other officer or court to act, 14. Supreme Court's appointment, 15. what order to contain, 15. who may apply for, 15. granting, is discretionary, when, 15. proceedings in Supreme Court, 16. title of, 1, 16. revoking authority of appointee, 17. order of appointment superseded by filling of vacancy, 17. remitting proceedings to surrogate, 17, 18. surrogate to make entries of papers, etc., 18. proceedings before special officer to be recorded, 19. in Kings county, 13, n. may complete unfinished business of predecessor, 52, 56. record books to be kept by, 24. are public records, 24. custody and renewal of records kept by, 27. must preserve papers filed, 26, must record will established by action, 136. must file stenographer's notes of proceedings, 25. must search records on request, 26, n. salary of, 37. of temporary and acting, 38. fees of, 39. none in certain cases, 40. report of, 41. disposition of, in New York county, 41. official bond of, 28. of officer acting as, 28, 29. penalty of, 28. county clerk, judge of sufficiency of, 28. liability on, 30. for moneys deposited in court, 30, 66, n. prosecution of, 30, 31, 32. grounds for, 30. application for leave, 31, 32. proof in action on, 33. defenses in such action, 34. execution in, 35. apportionment of recovery in, 36. appointment of clerks for office of, 20, 21. liability of surrogate for acts of clerk, 23. ^TslTuL^:' G-^-A^ I^BBx. 1171 SURROGATE'S COURT: is suee.essor to English ecclesiastical courts, 1. designation of, 1, 4. recognized by the Constitution, 1. creation of, 1. in new or altered counties, 3. in New York county, consists of two surrogates, 2. additional surrogate, election of, 2. is independent of Constitution, 2. relief of, in populous counties, 1. is a local office, 1. vacancy in New York and Kings counties, how filled, 2, n., 13. seal of, 5. office clerks, 20. compensation of, fixed by supervisors, 20. in New York county, 20. surrogate may require security from, 20. clerk of, 20, 21. appointment of, 20, 21. powers of, 21. in New York county, surrogate may authorize exercise of certain powers, 21. additional powers of, in probate eases, 21. surrogate may restrict powers of, 21. surrogate liable for acts of, 23. surrogate may require security of, 20, 23. disabled to act in certain capacities, 22. may take oaths and acknowledgments, 21, 456. mav act as referee by consent, 22, n. fees of, 39. records of, to be kept, 24. to be open for inspection at all reasonable times, 24. stenographer of, appointment and duties, 25. may act as referee, 22, n. notes of, to be filed, 25. how authenticated, 25. time and place of holding, 6. always open for transaction of business, 6. no stated terms of, except in New York county, 6. surrogate to appoint terms for holding, 6. two or more terms may be held at same time, 6. publication of appointment of terms, 6. surrogate may designate when he will attend at office, C jurisdiction of, in general, 42. under Revised Statutes, 42. before Revised Statutes, 42, n. when authority inferred, 42. not a court of record prior to Code of Civil Procedure, 43. is limited, though a court of record, 43. surrogate cannot by rule limit his own powers, 58. no jurisdiction except as conferred by statute, 43, 47, 968. though possessing some of the characteristics of a court of gen- eral jurisdiction, 43. general section bestowing, 44. though limited, is conclusive until reversed, 43, n. proceeds according to course of common law, 43. over nonresident, how acquired, 81, n. once acquired, continues, 71. not lost by failure to adjourn proceeding to a day certain, 71. when exclusive, 59, 64. when concurrent, 64. as aflfeeted by residence or locality of property, 140, 141. 1172 Geneba. Inbbx. T=»r SURROGATE'S COURT — continued. power of, to administer oaths and take acknowledgments, 44, n. to appoint and remove guardians, etc., 44, 1014. to grant naturalization, 51. to confirm and cancel adoption of children, 46. to probate and revoke probate of will, 44, 50, 59. See Probate. to take and revoke probate of heirship, 44. to deal with irrevocable will, 223, n. to appoint successor to deceased trustee, 44. to appoint administrator, 44. to grant ancillary letters of administration, 371. to grant letters of temporary administration, 403. to revoke letters of testamentary trustee, 44. to pass on disputed claims against estate, 49, 968, 969. to determine claim of representative against estate. 49. to try claim due estate from representative, 49, 628. to construe wills, 253, 254, 970. to establish lost wills, 59. to settle accounts of executors and trustees, 44. to control conduct of executors, etc., 44. cannot restrain suits by them in other courts, 53 to determine disputes as to legacies, 44. to enforce payment of debts, legacies, etc., 44. to direct sale, etc., of lands to pay debts, 44. to determine validity of gifts causa mortis, 50. to administer justice, generally, in relation to estates, 44. limitation on powers of, 47. has not general equity powers, 47. no power to set off mutual judgments, 47, 986. "Cannot pass on claim of indebtedness of legatee. 47. nor specifically perform contract by representative, 49, n. cannot admeasure dower, 45. cannot entertain motion for new trial after verdict of jury, 121. cannot direct deposit of books of estate, when, 127, 520. no power to direct deposit company to produce will, 129. no power to correct mistakes in will, 221. cannot require next of kin to contribute to debts, 47. no power to pass on validity of release, 47, 949, 968. nor on validity of sale of real estate by representative, alleged to be fraudulent, 47. no power to order payment to widow of funds not assets, 47. nor direct delivery of assets to claimant, 53. nor try validity of claim of representative against beneficiary, 47, n. nor the validity of transfers by decedent as agaipst creditors, 47. nor to try validity of assignment, 47, 47, n., 97, 968. nor to require legatee to refund overpayment of legacy, 47, 761, n., 774. to pass on right of inheritance to money, treated as realty, 47, n. cannot try claim of administrator as mortgagee of decedent's realty, 47, n. to construe antenuptial agreement, 47, n. cannot entertain defense of set-off, 966. to compel attorney to account, 48. cannot enforce attorney's liability for costs, 48, n. to prescribe terms on change of attorneys, 48, 552. to determine amount of attorney's compensation, 552. to enforce attorney's lien. 48, 552, n. incidental statutory powers of, 52. to issue citation, 52. to compel attendance of parties, 52. to adjourn hearings, 52. ""TZZr GE.EBAI. Index. Il7a SURROGATE'S COURT — continued. to issue subpcenas, 52. to enjoin representatives, 52, 53. to punish for contempt, 52, 1089. to complete predecessor's unfinished business, 52, 56, 249. to exemplify records, 52. to direct new trial for fraud, etc., 52, 54. to make rules, 58. to correct mistakes, etc., by amendment, 57. to open, etc., orders and decrees, 52, 54, 55, 1077, 1081. though made by predecessor, 54. to issue commissions, 124, 127. to issue letters rogatory, 124, 127. to order discovery, etc., of books and papers, 127. to order deposit of moneys and property of estate, 127, 520. to order examination of persons not parties, 127. to ordier inspection of will before contest, 127, n. may sign decrees and orders in vacation, 6. to amend orders, etc., nunc pro tunc, 117, n. may order jury trial when, 164. may appoint referee, 117. incidental nonstatutory powers of, 50. all proceedings in, are special proceedings, 67. commencement of proceedings in, 68. under former practice, 68. by citation or order to show cause, 68, 69. what deemed commencement of proceeding, 68, 70. appearance in, mode of, 85. effect of, 57, n., 85, n. pleadings in, 87. amendments in, 57. hearings in, 13. decision in, to be filed, 114. to contain findings stated separately, 114, 1143, n. evidence in. See Evidence. See Trial Practice. SURVIVAL: of probate proceedings on death of party, 101. of other proceedings, 103. See Abatement, etc. of powers of representative, on death of one, 524, 526. of rights of action under contract, 541. contracts which do not survive, 542. of torts to property of decedent, 543. of torts to person of decedent, 544. SURVIVORSHIP: words of, in will, 269. SUSPENSION: of power of alienation, restriction of, 261. of absolute ownership, 261. period of, 261. effect of, illegal, 263. of powers of guardian pending proceeding to remove, 1047, 1067. SUSTENANCE: of widow, for forty days after husband's death, 560. TAXES: as preferred debts, 666. no apportionment of, 066. term does not include assessment, 615, 666. right and duty of executor, etc., to pay, 614, 615, 666. liability for, as between devisee and general estate, 615, 666. on transfers under New York statute, 697 et seq. 1174 Gekeba. Inbex. T™»r TEMPORAEY ADMINISTRATOR. See Administrator, Temporary. TESTAMENTARY CAPACITY: what law governs, 175. as affected by old age, 215, n. paralysis, 215, «. deafness, 215, n. blindness, 215, n. loss of memory, 215, n. illness and stupor, 215, n. intemperance, 211, n., 215, n. iheart disease, 215, ft. absurd beliefs, 215, n. incipient paresis, 215, n. lunacy, 215, «. suicide, 215, n. effect of age upon, 208. marriage upon, 208, n. delusions upon, 211, 215, n. previous insanity, 212, n., 215, n. effect of citizenship upon, 209. how proved, 213. burden of proving on proponent, 187, 212. subscribing witnesses may testify as to, 214. opinion of experts as evidence of, 213. shifting of burden of proof on question of, 212. proponent need produce but slight evidence of, 187. opinions of nonprofessional witness as to, 215. declarations of testator as evidence of, 213, «. illustrations of various principles respecting, 215, n. finding of, not inconsistent with that of undue influence, 216. lack of, not presumed from old age alone, 210. from injustice of testamentary provisions, 211. burden on contestant to show, 212. mental capacity, 210. mere imbecility does not incapacitate, 210. test of, 210, 211. insane delusions, 211. what are, 211, n. effect of, on probate, 211. eccentricities, 211, n., 215, n. habitual drunkards, 211, n. monomaniacs, 211. will of, refused probate, when, 211. TESTAMENTARY GUARDIAN. See Gum-diwn hy Will, etc. TESTAMENTARY TRUSTEE. See Trustee, Testamentary. TESTATOR. See Prolate; Will. TORTS: to property of decedent, when survive, 543. to person of decedent, when survive, 544. damages for, causing death, not assets, 539. TRANSCRIPT: of probate to be recorded,. 247, 249. of surrogate's decree, to be furnished for docketing, 1091a. TRANSFER TAX: history of statute, 697. what transfers taxable under act of 1892, 698. effect of act of 1892 on those of 1885 and 1887, 697, n. " estate and property " defined, 699. scheme of statute, to tax succession, not property, 701. "transfer" defined, 701. subject of the tax, 701. possesaion need not be actual, 701. TSJ" Genekal Inbex. 1175 TRANSFER TAX — continued. when right to tax accrues, 697, n., 728. retroactive effect of act, 697, «., 699a. rules of construction, 700. taxability, how affected by character and location of property, 702. as affected by residence of decedent, 703. of estates for years, life, etc., 722. of estates in remainder, 722. of estates in reversion^ 722. of estates in expectancy, 722. of gifts causa mortis, 698, n. of transfers under power of appointment, 723. of legacy payable out of proceeds of United States bonds, 701, n. of legacy to the United States, 701, n. of property of nonresident testators, etc., 703. of nonresident intestates, 703. of property " within this State," 702. exemptions from taXj enumerated, 705. of transfers under $500 in value, 704. value at time of taking, controls, 704, n. all property passing must be less than, $500, 704. of transfers of personalty less than $10,000, to certain persons, 705. of transfer of realty with direction to sell, 705. of legacy to bishops and religious corporations, 707. to a city for certain purposes, 709. to adopted children, 706. to charitable, etc., institutions, 708. to cemetery association, 709, n. to lineal descendants, 705. of property exempt by law, 709. corporations claiming, must be exempt on both realty and per- sonalty, 710. of legacy not to or for the use of the legatee, 712. of bequests in trust, 712. of legacy to creditor, 712. of legacy for services, 712. of legacy to executor in lieu of commissions, 713. excess taxable, 713. application of the statutory exemption, 710. to corporations generally, 710. to almshouses, 711. to mutual benefit associations, 711, n. to incorporated companies, 708. only applies to domestic corporations, 708. to beneficial interest of legatee, 712. to legacy for masses, 712. to proceeds of insurance policy, 712. personal liability of representative for, 714. a lien on property transferred, 714, 715. lien subject to debts and administrative expenses, 720. representative not entitled to accounting until tax paid, 714. not excused from payment because estate distributed, 714, n. collection of tax by representative, 715. has power to sell property for, 715. shall deduct tax from legacy, 715. must pay tax within thirty days, when, 715. apportionment of tax, 715. composition of tax on expectant estates, .715. collection of tax by district attorney, 716. county treasurer may intervene on accounting, etc., 970. application for citation, 716. to whom citation directed, 716. 1176 GE.EEA. iNBEx. '^rsS.r TRANSFER TAX — continued. statute of limitations not a defense, 716, n. composition of tax where controversies arise, 716. duty of corporations on stock transfers, 717. of safe deposit companies, banks, etc., 717. examination of securities by comptroller, etc., 717. penalty imposed for not allowing examination, 717. proceedings to assess the tax, 718. appliea4;ion for appraisal, 719. powers of surrogate on, 718. by whom jurisdiction invoked, 718. in case of estates of nonresidents, 718. proceedings by appraiser, 720. notice of appraisal, 720, 724. when appraisal not necessary, 718, n. powers and duties of appraiser, 720. what deductions made, 720. valuing future, vested and contingent estate, 722. lands subject to a moi'tgage, 720. estates subject to defeat, 721. transfers under power of appointment, 723. appraiser's report, 725. must be made in duplicate and filed, 725. proceedings on appraiser's report, 726. order fixing tax, 726. practice in New York county, 726, n. power of surrogate to modify order fixing tax, 715, re. appeal to surrogate from appraisement, 727. who may appeal, 727, n. to Supreme Court, 727. reappraisement at instance of comptroller, 727. based on errors of fact only, 727, n. payment of tax, to whom, 728. receipt for, to be given in duplicate, 728. disposition of receipt, 728. when tax payable, 728. on contingent interests to be postponed, 728. when payable, 728. on successive estates, from what fund payable, 715. discount for prompt payment, 729. penalty for nonpayment, 729. remission of penalty, 730. grounds for remission, 730. sale of property to pay, 715. giving bond on deferring payment, 731. form of, 731. bond to be filed and renewed, 731. refunding tax by representative, at instance of legatee, etc., 732. in ease of after-discovered debts, 720. by State comptroller to representative, 732. limitation of application for, 732i Supreme Court on reversing assessment, no power to direct, 732. representative chargeable with amount of "tax erroneously paid, 732. costs of compulsory proceedings to assess tax, 733. commissions of county treasurer and comptroller, 734. TRIAL PRACTICE: trials to be conducted as in other courts, 113. compelling attendance of witnesses, 113, n. Code sections applicable to Surrogate's Court, 122. depositions within the State, 123, 127. without the State, 124. commission, power of surrogate to issue, 124, 127. examination before trial, 124, n., 127. References are r\ t ^-i>,h- to sections. General Index. 1177 TRIAL PEACTIOE — continued. examination of disabled, etc., witness, 125, 126. referee may be appointed, 125. notice of such examination, 125. of witnesses on uncontested probate, 160. in another county, 125, 167. See Depositions. adjournments, surrogate's power to order, 52. surrogate's decision to be filed, 114. decision to contain findings stated separately, 114. failure to file findings a mere irregularity, 114. only necessary in case of appeal, 114, 1143, n. either party may request a finding, 114, 115. request to be made on settlement of case, 115. surrogate must pass on requests to find, 115. failure to do so, a ground for reversal, 115, n. exceptions to surrogate's rulings, 114, 116, 1143. on questions of law, 1143. on questions of fact, 116, 1143. when to be taken, 116, 1143. before a referee, 117. when reference may be ordered, 117. order may be amended nunc pro tunc, 117, n. sending back report for further findings, 118, 119, 965. referee's duties and powers, 118. confirming report, 119. within what time report must be acted on, 119. rule in New York county as to confirmation, 119, n. surrogate need not make new findings, 119. proceedings where party refuses to proceed, 120, n. See Reference. before a jury, 121. order for such trial, 121. review of verdict, 164, 1146. motion for new trial after, 164, 864. TRUSTEE, TESTAMENTARY: term, includes what, 319, 514, 924, n. distinguished from executor, 319, 514. where trustee is also executor, 320, 514. each officer separate and distinct, 321, 514. separate qualification unnecessary, 320, 449. to what courts accountable, 321, 724, 729. takes title from the will, 319, 321. surrogate has control over, 519. is shared by other courts, 519. limited jurisdiction over, 449, 519. cannot instruct trustee as to execution of trust, 519. where two or more disagree, 520. powers of, how performed where more than one, 524. acts of, when void, 524. trust not defeated by death, 527. disaflSrming decedent's wrongful acts, 545. letters to, when surrogate may grant, 322, 449. ordinarily unnecessary, when also executor, 321, 449. on appointing successor, 322, 449. remedy where trustee fails to qualify, 449, n. qualification of recipient, 320. effect of qualification as executor, 320. oflBcial oath, 320. bond may be required from, 449, 452. from one appointed as successor, 322. of executor, security as trustee, when, 320, 452. 1178 Ge^ebai. Inbbx. ^TZZZ' TRUSTEE, TESTAMENTARY — continued. petition for decree requiring, 452. citation and its return, 452. decree requiring bond, 452. form of bond, 452. having onee renounced cannot be reappointed, 449. resignation, petition for, 451. independently of statute, no resignation without consent of all parties, 527, n. settlement of accounts, condition precedent to, 451. acceptance of, dis