text:
      In re Thomas’ Estate.

      (Surrogate’s Court, Cattaraugus County,

      Filed April, 1893.)
    1. Transfer tax—Adopted children.
    When an assessment was not made on legacies to legatees who stood-in the relation of adopted children to testatrix for more than ten years prior to her death, and which would have been liable to duty under the original act of 1885, eh. 483, the tax having accrued prior to the amendment of eh. 713 of 1887, exempting such legacies from taxation— held, that under section 25 of the act as amended by Laws 1889, cli. 479, the legatees were entitled to the benefit of the amendment of 1887, and this right was not affected by Laws of 1892, eh. 399, sec. 23, repealing the act of 1889, as the saving clause of the act of 1892 preserved prior fights.- »
    2. Same—Exempt property.
    Money, being part of the distributive share of decedent in the estate of a deceased sister who resided at her death in another State, and no part of which had come into decedent’s possession prior to her death but had been remitted directly by the trustee of the sister’s estate to the executor of decedent, for distribution, is not liable to taxation.
    3. Same—Foreign corporations.
    Stocks of foreign corporations, the dividends accruing upon which are made payable at, and which can only be transferred at, the home office of such corporations, are not property within the State, liable to taxation under the act of 1885 and amending acts, although the certificates were owned by, and in the possession of. decedent in this State.
    Proceeding to determine tire tax to which, tire estate was liable under the act of 1385, c. 483, upon the report of an apprasier, appointed on the surrogate’s own motion, to determine the value of the estate.
    A. & G. E. Spring, for executors and legatees,
   Davie, S.

Testatrix died at the town of Hinsdale, Cattaraugus County, on the 18th day of February, 1887. Her last will and testament was admitted to probate on the 14th day of March following, and letters thereupon issued to the executor therein named. Testatrix devised her ■ real estate and bequeathed $1,000 in money to Ellen P. Thompson, and the balance of her estate to Helen TJ. Hicks. Ho proceedings having been instituted by the executor for the purpose of determining the amount of tax to which sáid estate was apparently liable under the provisions of chapter 483, Laws 1885, an appraiser was appointed upon the surrogate’s own motion, for the purpose of determining the value of said estate, pursuant to the requirement of section 13 of said act. From the report of such appraisal, filed on the 10th day of April, 1893, it appears that the fair market value of the real estate of which'testatrix died ■'seized was $1,000, and of the personal estate, $6,550. Upon the proceedings before the surrogate to determine the tax, upon such report, the executor and legatees appear and claim exemption from taxation upon the alleged grounds-—First, that testatrix sustained the mutually-acknowledged relation of parent to the legatees for more than ten years next preceding her death; and, second, that the entire personal estate of testatrix came into this State after her death, simply for the purpose of distribution.

From the evidence taken in this proceeding, it appears that these legatees were not related to the testatrix, nor had they been legally adopted by her, in conformity with the laws of this. State; but for more than ten years prior to her death the. mutually acknowledged relation of parent and child had existed between testatrix and the legatees. They each began residing with testatrix in early infancy, having no home of their own,, and no means of support, and were maintained and "educated by the testatrix, assumed her name, called her “mother,” and she exercised the same parental care over, and manifested the same affection for, each of them, as if they had in fact been her own children. Under the provisions of chapter 483, Laws 1885, such relationship, however long continued, was of no consequence. Legacies to adopted children, or those standing in that relation, of real or personal property, of the value of $500 or over, were made liable to taxation. By chapter 713, Laws 1887, adopted children, and persons to whom the testator had sustained the relation of parent for ten years, were exempted from such taxation; but it did not in express terms, or legal effect, grant exemption from the operation of the act of 1885, in the limited number of cases in which the tax had accrued under the original act, and was uncollected at the time of the passage of the amendment. In re Cayuga Co., 46 Hun, 659 ; id., 111 N. Y. 343, 18 N. E. Rep. 866; In re Kemeys, 56 Hun, 118, 9 N. Y. Supp. 182. Section 25 of this amendatory act is as follows: “All actsPr parts of acts inconsistent with this act are hereby repealed.” And this section was amended by chapter 479, Laws 1889, so as to read as follows: “All acts and parts of acts inconsistent with the provisions of this act are hereby repealed, but this act shall apply to all estates of deceased persons where no assessment of tax has been made, to which such estate or estates are liable, under the provisions of the foregoing act.”

The assessment not having been made in this case at the time of the passage of the act of 1889, the exemption to adopted children provided by chapter 713, Laws 1887, became operative in this case; and these two legatees, in consequence, stood in the same situation as if the clause exempting them had been contained in the original act. By chapter 399, Laws 1892, the laws relating to taxable transfers of property were still further modified, and section 23 of the act of 1892 provides as follows: “Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is repealed.” In the column of said schedule is all of chapter 479, Laws 1889, but the “saving clause” in the act of 1892 provides as follows: “The repeal of a law, or any part of it, specified in the annexed schedule, shall not affect or impair any act done or right accruing, accrued or acquired * * * prior to May 1, 1892, but the same may be asserted, enforced * * * as fully and to the same extent as if such law had not been repealed.”

The legatees in this case having acquired a right under the provisions of chapter 479, Laws 1889—that is, the privilege of exemption from taxation under the provisions of the act of 1885—such right was not divested by the adoption of the act of 1892, the “saving clause” of such act preventing that result. Hence it must be held, in this case, that the estate of testatrix is not subject to taxation.

The conclusions thus reached are not to any extent in conflict with the rule established in Be Kemeys, above cited. In that case, where a tax had become payable under the act of 1885, upon a gift by testatrix to an adopted child, there had not only been an assessment, but an order made by the surrogate, fixing and determining such tax, on the 27th day of May, 1887; and it was accordingly held that the right of the State to collect this tax was not taken away by chapter 479, Laws 1889, which went into effect June 14, 1889. But this case distinctly recognizes the intention and design of the Legislature by the enactment of chapter 479, Laws 1889, to create an exemption in those cases where no assessment had been made prior to the .act of 1887.

It further appeared from the evidence that the personal estate of said deceased consisted exclusively of her distributive .share in the estate of a deceased sister, who resided at the time of'her death in the city of Cleveland and State of Ohio; that no part of said estate had come into the possession of the testatrix prior to her death, aside from the certificates of stock hereinafter mentioned, but the same consisted of money remitted directly from the trustee of the estate of said deceased sister to the executor herein, for the purposes of distribution. That portion of t the personal estate is not liable to taxation. In re Swift (Sup.), 19 N. Y. 292.

. At the time-of the death of the testatrix, she was the owner of, and had in her possession, certificates for 10 shares of the capital stock of the Cleveland & Pittsburgh Railroad Company, of the value of $500; also certificates for 40 shares of the capital stock of the People’s Gaslight Company of the city of Cleveland, .of the value of $1,000. Both of these companies were foreign corporations organized under the laws of Ohio and Pennsylvania. Testatrix had derived title to such stock from the estate qf said deceased sister. The dividends accruing upon such stock were made payable at the home office of such corporations, in the city of Cleveland, and by the terms of said certificates they could be transferred only upon presentation at such office. The executor, after qualifying as such, sent these certificates to Cleveland, where they weare.negotiated at their face value, and tire money derived therefrom remitted to the executor. It has been held that stock of‘corporations created under the laws of other States, owned by residents of this State, are nob assessable for the purpose of general taxation. People v. Commissioners of Taxes, 4 Hun, 595. The court, in the opinion in that case, ■says: “Such corporations are taxable, and we must presume, in the absence of proof, that taxes in their respective home States are duly assessed and collected upon their capital stock or property. The stock in such corporations, held by individuals here, are simply representatives of capital or property employed in business in other States, the title to which is vested in, and controlled by, the artificial person created by, and residing in, such State; they represent an interest which "is or may become a membership in the corporation, and evidence to participate in divided profits, and in the ultimate dividend of surplus after the payment of debts and obligations of the corporation. The stock certificates are not themselves the property, but. evidences of the rights just mentioned, to be possessed, enjoyed and enforced under and in conformity with the laws of the State which created the body corporate. The property of the corporation, whether real or personal, in which these certificates of legal or equitable rights are outstanding, is not within the State, which by the general statute is the test of taxability.”

While a succession tax is not a tax on the property, but upon, the privilege of succeeding to the inheritance (Cooley, Tax’n [2nd Ed.], 30), I am of the opinion that the reasons suggested in the opinion cited are cogent in leading to the conclusion that such certificates of stock are not property within this State, subject to taxation under the provisions of chapter 483, Laws 1885,. or acts amending the same.


source: Caselaw Access Project

author: Davie, S.

license: Public Domain

text:
      In re Beach’s Estate.

      (Surrogate’s Court, Cattaraugus County,

      Filed April, 1893.)
    1. Subrogates’ Courts—Opening decbee.
    An alleged erroneous construction of a will is not a “sufficient cause”" for a rehearing and to open a decree within the meaning of Code Civ. Pro. sec. 2481, subd. 6, providing that a decree may be opened for fraud, newly discovered evidence, clerical error, or “other sufficient" cause/’ as the latter words mean causes of like nature with those specifically named.
    2. Executors and administrators—Opening decree—Newly discovered-Evidence.
    A decree will be reopened for the purpose of determining the ques-. tion of the executor's liability to the estate for a deduction obtained. on the payment of a note due by deceased, the benefit of which deduction was not given to the estate and information of which did not come to the applicant’s knowledge till after the former trial.
    3. Same—Clerical error.
    When it is alleged that under the decision of the court on the former hearing the widow was entitled to interest on the personalty from the testator’s death, and that the decree deprived her of such interest between the testator’s death and the date of the decree, the latter will be opened for the purpose of correcting such error, if it exists.
    Application by widow to open decree. (See p. 246 of this volume for former report.)
    W. G. Laidlaw, for applicant; A. & G. E. Spring, for executor.
   Davie, S.

The accounts of the executor were judicially settled by a decree made on the 21st day of September, 1892. In order to determine the proper disposition to be made of the personal property belonging to the estate, a construction of the will became necessary; and the question presented was whether, under the terms of the will, the widow took the personal property absolutely, or only a life estate therein. The widow was represented by counsel upon the proceedings for such judicial settlement. The question of construction was distinctly raised, discussed, submitted, and decided hv the surrogate, it being then held that the widow was only entitled to the use of such property during life. The determination of such question depended largely upon the particular phraseology of the will itself. There was no conflict of evidence relating to any of the extraneous circumstances to which resort was had in ascertaining the ¡intention of testator. The question involved was one of law, and the ground alleged in the moving papers for asking such rehearing is that the decision of the surrogate upon this proposition was erroneous, as matter of law. Assuming such to be the case, does the power exist to grant the relief sought ? The Code provides that the surrogate may open, vacate, modify, or set aside an order or decree of his court, or grant a new trial or new hearing, for fraud, newlv-discovered evidence, clerical error or other sufficient cause; such power, however, to be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the.same power (Code, sec. 2481, subd. 6) ; and the suggestion of the counsel for the widow is that the alleged erroneous determination of the question of construction constitutes a “sufficient cause,” within the meaning of the subdivision above cited, but such suggestion is not sustained by the decisions defining the powers of surrogates under that, subdivision. It is held that such powers are limited to ■eases where “fraud, newly-discovered evidence, clerical error,” •or other sufficient causes of a like nature exist. In re Hawley, 100 N. Y. 206, 3 N. E. Rep. 68. “Other sufficient cause” means causes of like nature with those specifically named. In re Tilden, 98 N. Y. 434. The subdivision cited does not permit a resort to this method of review where the only error complained of is one of law. In re Dey Ermand, 24 Hun, 1; In re O’Neil, 46 Hun, 500; In re Hawley, 100 N. Y. 206, 3 N. E. Rep. 68; Trust Co. v. Hill, 4 Dem. Sur. 250 In view of these decisions 1 am of the opinion that no authority exists for permitting a reargument or rehearing upon the question of con--st-ruction, and that the motion should, to that extent, be denied.

The principal affidavit upon which this application is based is not made by the widow, but by her attorney, and consequently the allegations therein contained are, necessarily, largely upon information and belief; but no objection is made to the form •of the moving papers, and this motion has been argued and submitted upon the understanding that the papers were in all respects regular. In the account filed and judicially settled, the executor credits himself, and charges the estate, with the full amount of a certain note paid by him, which note was signed by the deceased and the executor himself; and such proof was adduced upon the trial as to lead to the conclusion that such note was, in fact, primarily the individual indebtedness of the •deceased. It is alleged in the moving papers that the said executor did not in fact pay the full amount of such note, but procured a settlement of the same at a considerable discount, without giving the estate the benefit of such deduction, and that such information has come to the knowledge of the widow since the former trial. If these statements are true,, and the executor has in fact secured a substantial deduction upon this indebtedness, and himself retained the benefit thereof, he is certainly guilty of decidedly improper and reprehensible conduct, which should not be sanctioned or sustained. The newly discovered evidence claimed to exist is the declarations of the executor to the effect that such deduction from the .amount úísaid note had been obtained by him, and the papers presented are sufficient to warrant the opening of the decree to the extent and for the purpose of ascertaining the truth relating to such charge.

Again, it is alleged on part of the widow that a clerical error was committed in the drafting of the decree, and that the decree, as drawn, is not, in consequence, in conformity with the decision made upon the question of construction. The claim made is that, under such construction, the widow is entitled to entire avails of, and accruing interest upon, the personal estate from the death of the testator, and that by the decree entered she is deprived of all or of a part of such interest and avails accruing-between the death of testator and the date of the decree. If such error exists, that, too, should be corrected, and the decree-opened for that purpose.

An order should be entered, opening said decree, and granting a rehearing in this matter, for the purpose of determining-the question of the executor’s liability to the estate for the deduction obtained on said note, and for the further purpose of correcting such clerical error as may exist in the form of the decree.


author: Coffin, S.

text:
      In re Van Wert’s Estate.

      (Surrogate’s Court, Westchester County,

      Filed May, 1893.)
    1. Executors and administrators—Accounting.
    A surviving administrator is not liable to account for the assets of the estate when nearly the entire thereof fell into the hands of his co-administrator, deceased, whether they were originally taken by the latter, or handed to him by the surviving administrator.
    2. Same—Accounting—Statute of Limitations.
    The statute of limitations may be invoked as a protection by an accounting administrator, notwithstanding that he has voluntarily accounted.
    3. Same.
    Interest received on securities other than such as was accruing at intestate’s death, is not a portion of the assets so as to affect the running of the statute of limitations.
    4. Same.
    In such ease payments by the administrator to his co-administrator, who was also next of kin, within the statutory period will not take' the case out of the statute.
    5. Same.
    On accounting, a surviving administrator is not obliged to produce' vouchers for moneys handed to his co-administrator, as such, as they are not payments, and vouchers are only required for payments made' of debts or shares or other liabilities.
    6. Same—Attorney acting as administrator.
    An administrator who is an attorney will not be allowed his costs and charges in actions in which he was concerned as attorney.
    Accounting of Thornton M. Niven as surviving administrator of John A. Van Wert, deceased.
    Thornton M. Niven, administrator, in person (Walter Edwards, of counsel) ; John T. Anderson, for Contestants (L. T. Yale, of counsel).
   Coffin, S.

It is an undisputed fact that the deceased administrator received moneys and property of the intestate amounting to at least $25,000, which was inearly the amount of the ■original estate. Reither -this administrator, as survivor, nor any person interested in the estate, has called upon the administrators of the deceased administrator to account, nor have those administrators voluntarily rendered any account, as provided by section 2606 of the Code. How, then, can it be expected that Mr. Riven should account and be held liable for the whole assets when the greater part fell into the hands of his coadministrator, whether originally taken by him, or handed over to him hy Riven ? Non constat but that they, or the greater part of them, remained in his hands at the time of his death. If an accounting had taken place under the1 above section of the Code, the fact would, perhaps, have been ascertained whether he had misapplied or wasted them, and whether Riven, by handing them to him, or permitting him to take them, was chargeable with a devastavit. It seems, under the circumstances, that this accounting must fail of producing satisfactory and conclusive results. It is true, however, that, under the provisions of section 2129, one of two or more administrators may present a petition for the judicial settlement of his separate account, .and ■ pray that his co-administrator may be cited to attend. That is not this case, but the administrators of the deceased administrator have been cited. The duties of the deceased administrator were paramount to his interests as next of kin, and his administrators in this proceeding stand precisely in his place. They can no more question any act of his than he could, if he were alive and a party to this matter. He certainly could not be allowed to charge his co-administrator1 with a devastavit in handing over the moneys of the estate to ¡him, or of taking title to himself of lands sold under the foreclosure of a mortgage belonging to the estate, or of taking assignments of such mortgages to himself. If he were guilty of a devastavit, his administrators are in no position to allege it in jthis proceeding. The administrators seem to have acted in entire harmony in mismanaging the affairs of the estate, and each pne appears to have had a knowledge of what the other one did, and no complaint wag ever made. Their duty was a plain statutory one, and they should have closed up the matter many years since; but, instead of •doing so, they appear to have managed it as though it all belonged to the two next of kin, as it did, without regard to the fact that they must die, when others might step in and criticise their acts. The only safe guides for executors and administrators are the statutes on the subject. A failure to observe them almost inevitably leads to trouble. Here they invested and reinvested moneys, and did many other things that were entirely foreign to their duties, but of which these contesting administrators have no right to complain; and hence their objections must fall.

The statute of limitations is invoked as a protection by the accounting party, and it would seem that it is a shield of which he may rightfully avail himself here. Administration was granted in October, 1877. One year from that time the distributive shares became due. The administrator next of kin •died in December, 1889. The next year this voluntary proceeding was commenced, and the next year, before its conclusion, Julia Van Wert, the only other next of kin, died. About twelve years, therefore, elapsed before any settlement of the estate was sought or commenced, within which it could have been done. It was held in the case of House v. Agate, 3 Redf. Sur. 307, affirmed by the General Term on appeal, that in such case the statute was a bar. It was also held in that case that the fact that the executor applied for a voluntary accounting did not deprive him of the right to set up the statute. The same doctrine was held in Re Clayton (Surr.), 5 N. Y. Supp. 266. All of the assets of this estate fell at once into the hands of the administrators, and it does not appear that any have since been received. The interest they subsequently received on securities other than such as were accruing at the intestate’s death was not a portion of the assets received by them. It may be said that payments were made by the accounting party to “W. A. Van Wert, co-administrator and next of kin,” as he states in his account) which operate to take! the case out of the statute. A payment, usually, to revive a claim barred, is upon some previous fixed sum, but here there was' and could be nothing of the kind. I am inclined to think that, ¡if there urere such payment, it would not operate to take the case out of the effect of the statute. However that may be, as! above remarked, the duties of the deceased administrator were1 paramount to his rights as next of kin, and he must be deemed to have received such-moneys in his official capacity, to be duly administered by him. As to Julia Van Wert, it does not ¡appear that the accounting party ever paid to her anything on account as next of kin or otherwise since 1878. It was claimed, however, by him that-his co-administrator acted as agent for Julia, and that he handed him money for her, while this is denied by the contestants. In my view of the matter, it is unnecessary to decide the controversy. The statute bars her claim.

It seems to me that on both the above grounds the contestants have established no liability to them, on the part of Mr. Riven. If this be so, then the question as ;to his having or not filed proper vouchers is of no concern ¡to the contestants. And, again, if it be correctly held that the moneys paid for or handed to the deceased administrator came into his hands in his official capacity only, then they were not payments, and vouchers are only required for payments made of debts or shares or other liabilities. There should be disallowed to Mr. Riven, however, his costs and charges in actions in which he was concerned as attorney. I so held in the case of Campbell v. Purdy, 5 Redf. Sur. 434. A decree will be prepared according to the views: above expressed, with costs to the surviving administrator.


text:
      In re Klett's Will.

      (Surrogate’s Court, Westchester County,

      Filed April, 1893.)
    1. Will—Request to sign.
    On an application for the probate of a certified copy of a will and codicil of a decedent who died resident in Pennsylvania, in which State the will and codicil had been proved, it appeared that the attestation clause to the will did not state the witnesses signed at the request of the testator, and that the laws of Pennsylvania did not require proof of such request, which was essential under the statute of this State. The surviving witness, however, testified that the testator presented the will to him with his name already signed to it, and requested him to be a witness thereto, and that he signed it accordingly, but he could not recollect whether the other witnesses were present. The handwriting of the testator and of the other subscribing witnesses were proved. Held, that the will was sufficiently established.
    '2. Will—Acknowledgment by testator.
    When a testator presents a paper to a witness with his name already signed to it, and declares it to be his will, it is tantamount to an acknowledgment of his signature.
    ■3. Same—Signature by witnesses.
    The New York statute does not require that the witnesses should sign in the presence of each other.
    4. Same—Proof of execution.
    In such case the only surviving witness (a lawyer) to the codicil could not swear positively that he saw the deceased sign it, of that' the deceased declared the paper to be a codicil to his will, but he testified he prepared the codicil at decedent's bedside and at his dictation, and that he believed the attestation clause, which stated that he “published” the paper as such, to be true. He also testified that the other witnesses either signed at the request of the deceased, or at his (-the lawyer’s) request with testator’s consent. The handwriting of testator and of the deceased witness was proved by another witness. Field, that the requirements of the statute were complied with.
    ,d. Same.
    When a codicil says, “I, Frederick Klett, the within named testator,” and correctly refers to the date of the will, thus allowing the inference to be drawn that it was endorsed upon or appended to the will—held, that the proving of the codicil proves the will.

      Probate of certified copy of a will and codicil purporting to be made by Frederick Klett, deceased, a resident of Pennsylvania, in which State the papers had been proved and admitted to probate on August 3rd, 1859. i
    W. S. Allerton, for Franklin C. Jones, surviving executor Stapler, Smith & Thompson, for F. K. Beckley and others.
   Coffin, S.

—Judging from the language of the attestation clauses of the will and codicil, and the proofs taken on the probate by the register of wills, the laws of the State of Pennsylvania do not require that the witnesses should sign at the request of the testator, while the law of this State does. In order that-the will may be admitted to probate here, it must be proven to-have been executed according to the laws of this State.- The attestation clauses to the will and codicil are similar, and state that they were “signed, sealed, published and declared” by the testator, “as and for his last will and testament, in the presence of us, who have hereto subscribed our names in the presence of the testator and of each other.” They do not state that they were requested by him to- so sign; and the proofs follow .the attestation clause. Our law, as stated, requires this request, in some form, to be made. It need not, however, be so stated in the attestation clause. That is no ¡part of the will, and a will may be proven where there is no such clause, provided the witnesses can testify to facts showing a compliance with the requirements of the statute. In this case only one of three witnesses whose names are signed to the will is alive, and only one of three to the codicil; hence, if the will is susceptible of proof at all, it must be by the testimony of the living witness, and by proving the handwriting of the testator and of the subscribing-witnesses, under section 2620 of the Code, and so of the codicil. Pleis, the living witness to the will, testifies that the testator presented the will to him, with his name already signed to it, and requested him to be a witness to¡ his will, and that he signed it accordingly. This is all our statute requires, in so far as ha was concerned; it having been repeatedly held that where the testator presents a paper with his name already signed to it, and declares it to be his will, it is tantamount to an acknowledgment of his signature. He could not, after the lapse of more than 30-years, recollect whether the other witnesses were present; nor was it necessary that he should. The statute does not require that the witnesses should sign in the presence of each other. The handwriting of the testator and of the other subscribing-witnesses to the will having been proved, as provided by the-section referred to, the will appears to be sufficiently established, and is therefore admitted to probate.

The only surviving witness to the codicil is Richard J. Williams, a lawyer, who drew the codicil to the will, and was present at its execution. He does not swear positively that he saw the-deceased sign it, but believes that the attestation clause, commencing, “Signed, sealed,” etc., states correctly what occurred, and says he signed as a witness a.t the request of the deceased, and that the other two witnesses either signed at the request of" the deceased or at his (Williams’) request, with his consent. The handwriting of Frederick Klefct and of the deceased witnesses was sufficiently proven by another witness. How, while-Hr. Williams does not directly testify that the deceased declared the paper to be a codicil to his will, yet he does say that he prepared the codicil at his bedside, and at his dictation, and that-he believes the attestation clause, which states that he “published” the paper as such, to be true. There can be no reasonable doubt., from these facts, that the deceased fully knew and understood the character of the paper which he was executing;, and this fulfills the requirements of the statute in this respect. From the language of the codicil it is fair to infer that it was. indorsed upon or appended to the will, for it says, “I, Frederick: Klett, the within-named testator,” and refers correctly to the. date of the will. I have heretofore held in Storm’s Will, 3 Redf. Sur. 327, that the proving of the codicil, under similar-circumstances, proves the will. Both are therefore admitted to probate.


author: Ransom, S.

text:
      In re Barker.

      (Surrogate’s Court, New York County,

      Filed June, 1893.)
    Guardian and ward—Statute of limitations.
    Where it clearly appeared from tile evidence that the ward, both before and after her majority, had 4 knowledge of the state of her guardian’s accounts sufficient to show her that the entire trust fund had been expended, and she did not begin the proceeding till ten years after attaining her majority, the statute of limitations applies. Quaere, whether even without such evidence the rule that as between trustee and cestui que trust no statute of limitations, nor any bar by analogy to the statute, can be operative, is applicable,
    Accounting by guardian. Bepoft of referee overruled on 'exceptions and- proceedings dismissed.
    Charles F. Wells, for guardian ; Large & Stallknecht, for ward.
   Ransom, S.

This is an accounting by' the general guardian -of the infant above named, originallyj compulsory, but converted into a voluntary proceeding. Exceptions are filed by accountant and contestant. On the 8th of duly, 1869, Mrs. Place, the mother of the infant, 'was appointed general guardian. The ward filed a' petition for a compulsory accounting March 9, 1891, 22 years after the appointment, and within six days of ten years after the ward had attained her majority. Prior to the taking of any testimony in this proceeding as to the accountability of said guardian for moneys received and paid out by her as such, counsel for the guardian interposed as a defense the ■statute of limitations, both to the said petition of the said contestant, and to the objections to said’account of said guardian, as filed. The decision of the referep, overruling the objection -of the statute of limitations, is based upon In re Camp, 126 N. Y. 389, 27 N. E. Rep. 799, which appears to hold that, ■although a party may cease to be guardian, upon: the ward coming of age, yet so long as the property remains in his possession as guardian, and unaccounted for, he remains liable to account. The leading case in this State upon the rule that, as between the trustee and the cestui que trust, no statute of limitations, nor any bar by analogy to the statute, can be relied on, is Kane v. Bloodgood, 7 Johns. Ch. 89. The case of Lockey v. Lockey, Prec. Ch. 518, referred to on page 113, 7 Johns. Ch., clearly recognizes the rule that, where there is a legal and equitable remedy in respect to the same subject-matter, the latter is under the control of the same statute bar with the former. In Bus-well on Limitations (page 193), it is stated that the ancient ■action of account was the remedy provided in cases where there was a privity between the parties, as against a bailiff or receiver, or a privity in law as against a guardian in socage: Further on it is also stated that the period of limitation to an account is, either by construction or statute provision, made the same in equity as at law. In an early case the lord chancellor was of opinion that “where one receives the profits of an infant’s estate, and, six years after his coming of age, he brings a bill for an account, the statute of limitations was a bar to such a suit, as it would be to an action of account at law,” and cited Lockey v. Lockey, Prec. Ch. 518. The administration of trusts falling within ' the peculiar and exclusive jurisdiction of courts of equity, the doctrine is established that as between trustee and c'estui qué trust, so long as that relation subsists, the trust cannot be affected by the statute of limitations; but where the relation is no longer admitted to exist, or time and long acquiescence have obscured the nature and character of the trust, or the acts of the ■parties, or other circumstances, give rise to presumptions unfavorable to its continuance, courts of equity will refuse the relief, upon the ground of lapse of time, and inability to do ■complete justice between the parties. The equitable principle upon which the general doctrine is founded is thus stated by Lord Redesdale: “If a trustee is in possession, and does not execute his trust, the possession of the trustee is the possession of the cestui que trust; and, if the only circumstance is that he does not perform Ms trust, Ms possession operates nothing as a bar, because his possession is according to his title.” Hovenden v. Annesley, 2 Schoales & L. 633; Busw. Lim. & Adv. Poss. 457.

There is authority for the statement that upon the ward’s arriving at his majority, or at least upon his settlement with the guardian, the limitation begins to run, as between guardian.and ward. Mason v. Johnson, 13 S. C. 20; Jones v. Jones, 91 Ind. 378. After a ward becomes of ag'e, the fiduciary relation of guardian and ward ceases, and the parties are' in relation of debtor and creditor, and the claim of the ward is within the statute. Busw. Lim. & Adv. Boss. 474, and cases cited. The distinction runs through all the eases that the mere retention of the funds furnishes no grounds to! assume the title thereto in the trustee, inasmuch as such retention is consistent with the character he sustains, and therefore does not excite any suspicion of an intention to appropriate the funds. Although the statute of limitations does not apply directly to technical trusts, yet it has always been held that if a trustee should deny the right of the cestui que trust, and assume absolute ownership of the trust property, he thereby abandons his fiduciary character, and the cestui que trust must commence legal proceedings against him within the statutory .period of limitations. It should appear that the cestui que tp-ust had knowledge of the trustee’s denial, repudiation, or adverse claim, and, that the trustee has not been guilty of fraud: The doctrine that a positive and technical trust is not barred! by the lapse of time is subject to two qualifications, namely, that no circumstances exist to raise the presumption from lapse of time of an extinguishment of the trust, and that no open denial or repudiation of the trust, is brought home to the knowledge of the parties in interest, which requires them to act as upon an asserted adverse title. Busw. Lim. & Adv. Poss. 471. Lkpse of time, without any claim or admission of an existing rjght, coupled with circumstances tending to show that a trust had been executed, may-raise a presumption of its execution, I and, in case of a guardian, may authorize the court to require a less specific statement of items, and raise a presumption of payment to and for the ward to the amount of the account. Gregg v. Gregg, 15 N. H. 190; Whedbee v. Whedbee, 5 Jones, Eq. 392. In Re Neilley, 95 N. Y. 382, it was held that it is only where there is an actual, continuing and subsisting trust that a trustee is precluded from setting up the statute of limitations. This was held upon the authority of Kane v. Bloodgood, 7 Johns. Ch. 89. The opinion of the court in this case, at page 90, refers to the equitable rule under which courts of equity reject stale claims, independent of the statute of limitations, and cites one case where a bill was-filed against an executor for an account, and there being no statutory protection, and the presumption of a final settlement being rebutted, the court refused to open the account after a great lapse of time, when it was probable that most of the parties were dead, and the vouchers and the receipts were lost In the case at bar, ten years had elapsed after a practical, informal settlement out of court, and many of the items for which reimbursement was claimed were rejected because of the absence of vouchers or substituted proof required by section 2734, Code Civil Pro. In Re Hawley, 104 N. Y. 261, 10 N. E. Rep. 352, it was held that, to constitute a testamentary trustee, it is necessary that some express trust be created by the will. Merely calling an executor or guardian a trustee does not make him such. Every executor and every guardian is, in a general sense, a trastee, for he deals with the property of others, confided to his care. But he is not a trustee in the sense in which that term is used in courts of equity and in the .statutes. In re Camp, 126 N. Y. 377, 27 N. E. Rep. 799, was a proceeding against the father and guardian of petitioner to compel him to account. The mother of tire ward died seized of certain real estate, leaving her husband and four children, heirs-at-law. Prior to her death the city had commenced proceedings to acquire title to a portion of the real estate, which after her death resulted in an award of $26,000 to the petitioner, and his brother and sisters. This sum was paid to the father, as such guardian. The a • counting proceeding was commenced in Hay, 1888. The moneys were received in February, ¡1868. The fact of the receipt of the moneys first became known to the petitioner within a year of the institution of the proceedings. The respondent •answered that the guardianship of the petitioner ceased in 1872, when he became of age, and that the present proceedings were . on that account barred by the statute of limitations. The surrogate overruled the objection, and directed the guardian to file , an account. After an unsuccessful appeal to the General Term, ■ the guardian filed his account, whi|Ch was of a most general . character, and from which, and from his statements accompany..ing the same, it appeared that he had made certain payments . which he claimed to charge the petitioner with, and which, if _ allowed, would show that he had inore than paid out for the . benefit of the ward the moneys that he had received. Objec- , tions, were filed to the account., and it^was sent to a referee. Before the referee the guardian insisted that the fund was not .such a fund as he should account folr as general guardian, nor could any portion of it be enforced to be distributed among the heirs at that time, or at any time prior to his decease. This .objection was also overruled, and the guardian excepted. The referee found the guardian liable to account for the amount he .had received, but that he was to be Credited with the value of .his life interest therein. He deducted the proportionate share of such life interest from the share of the petitioner, and gave judgment for the balance, with interest. The General Term .modified this so as to charge the giiardian with the full sum' received by him, with interest from the time he received it. At .the foot of page 388, 126 N. Y., and page 803, 27 N. E. Rep., of tire opinion, the court refer to their previous decision in Re Hawley, 104 N. Y. 261, 10 N. E. Rep. 352, and distinguish it. But at page 389, 126 N. Y., and page 803, 27 N. E. Rep., they state that they do not regard the matter as very important upon this, question. While I am not by any means satisfied that the decision of the Court of Appeals in Re Camp, 126 N. Y. 377, 27 N. E. Rep. 799, is decisive upon the point that the relation existing between a guardian and a ward after majority is such a technical trust as to subject it to the rule that the statute of limitations does not apply, the matter may be decided upon another point) as to which the law is entirely clear. At page 12 of the minutes, the mother testified: “Ever since Cora knew anything, she saw my account book. It always lay on the table dr on my desk, and it was never locked. If she did not inspect those accounts, it was because she did not want to. I supposed she did. Question. Did she look over the accounts ? Answer. In a general way, certainly she did, for she could not help it. I have read them over to her, and told her about it.”

These transactions occurred at or before she attained her majority. “Q. Do you say the same of your account as guardian —the history of your administration up to the 'time when she became of age ?” A. Yes, sir.” At page 78 the ward testified: “My mother always treated me very kindly, but I thought it strange that I never had anything, or any money. After I was of age, I asked my mother about it. I never asked before. Q. What did she tell you when you became of age ? Did she show you tire account? A. No; she only said she spent all upon living.”

It appears by this testimony that subsequent to the attainment of her majority, the guardian and ward had a conversation concerning the accounts of her mother, and the mother stated that she had expended the entire fund. All the other circumstances surrounding the case negative the idea that the,trustee was guilty of any fraud or concealment which would prevent the repudiation from having its legitimate effect. The-accounts were always open to her inspection, and, notwithstanding her statement that she did not examine the same, it is apparent from other portions of the testimony that she knew their contents, and was aware that in some instances her mother had charged against her sums as low as 5 or 10 cents. She could not have known this without, to some extent, having examined the account. I am therefore of opinion that the referee’s- report must be overruled, and the proceedings dismissed, upon the ground that the statute of limitations runs against the claim-.


text:
      In re Nevins’ Will.

      (Surrogate’s Court, Westchester County,

      Filed June, 1893.)
    Will—Subscription by testator. Í
    One of the witnesses to a will testified he did not remember seeing testatrix sign the paper or make her mark, and another witness swore positively he did not. Their evidence did not disclose that either of them was in the room when the mark was made, but the third witness (the attorney who drew the will) testified that the whole business of the preparation, execution and witnessing of the paper was done at the same interview, including the signing by the deceased and the.three witnesses. The other witnesses testified that neither of them saw the attorney sign as a witness. Held, that the proof was not satisfactory of the subscription by the testatfix in the presence of two witnesses, and probate should be refused.
    Probate of alleged will of Jane Kevins.. Denied.
    F. X. Donoghue, for proponent; Arthur J. Burns, special guardian, for contestant, Anna Nevins; James H. Moran, special guardian, for Peter Nevins, son of decedent.
   Coffin, S.

This is a remarkable ¡case in this respect: that the alleged will bears a date which was five days subsequent to the date of the death of the decedent. [ The proof that she died on the 4th day of August, 1891, is abundant and conclusive. While the attorney who drew the will testified that it was prepared and executed on the day of its date, the witnesses Keely and Clinch both swear that they signqd the paper about a year before her death. The attorney is evidently mistaken in this. Ordinarily a mistake in the date is of little importance, but it may become so in connection with other facts. The attorney was a witness in this proceeding, and testified that two different kinds of ink were used in the written parts of the blank—one a pale, and the other a darker, ink. This is apparent from an inspection of the paper. In the blank formal part of the commencement of it there was printed: “I” (blank), “of” (blank), “county of” (blank), “and State of” (blank), “aged” (blank), and the blanks were filled with “Jane Kevins,” “Yonkers,” “Westchester,” “New York,” “about fifty,” all with the pale ink, except “New York,” which was with the darker. In the disposing part, after the printed words “I give,” was written with the pale ink, “and bequeath to Finton Phelan, all my property of every name and description, in trust, nevertheless, to collect the rents and profits and pay over the same to my son Peter Kevins.” Then immediately follows in the darker ink, “until he shall attain the age of twenty-one years, at which time I hereby direct my said executor and trustee to convey to my said son Peter Kevins all my property of every nature and description.” Then follows a blank space of 42 ruled lines, to the foot of the third page, where the witnesses signed with the same pale ink. The same ink was used in filling in the name of the executor in the blank for it, the name of the deceased in two places, and the rest of the blanks to the end, including the blanks in the attestation clause and the signatures of the witnesses, except in the blanks for the date. While the “ninth August” are in the same ink, the “ninety-one” is in the darker, and also the name of the attorney, subscribed as a witness. The attorney testified to the different inks as above stated, and attempts to account therefor by saying that he sometimes took ink with him, but does not say that he did in this instance. The paper was prepared and completed, as he states, at the house of decedent, who was ill in bed, on the single occasion. It seems scarcely credible that he should have written at the same time “Jane Kevins,” “Yonkers,” “Westchester,” in the pale ink, then “New York” in the dark ink, and then immediately changed to the pale ink in writing “about fiftyand the same remark will apply to the dating of the will, “ninth” and “August” being in the pale ink, and “ninety-one” immediately changed to the dark. Both the other subscribing witnesses swear that they did not see the lawyer sign his name, which was written with the dark ink, as a witness. Now, this lawyer had no interest in the matter, so far as appears, other than professionally, and no motive can be readily assigned prompting him. to do anything unprofessional. He! took this alleged will with him, and it remained in his hands more than two years—from the time of its alleged execution until about January, 1893. It was then called for by ex-Judge Thayer, but the lawyer refused to deliver it to him, except upon the order of the executor or Peter Uevins, the alleged beneficiary. Subsequently JudgeThayer presented an order from the latter, and the paper was delivered to him. The evidence anql circumstances seem to indicate that in the interval, having examined the paper and discovered the blanks unfilled, now in the dark ink, the failure to-make a final disposition of the estate, in the disposing part of it, according to the previously expressed wish of decedent, he added what is there written, then supplied the year from a lapsed memory, and then subscribed his name as a witness, he having-been present throughout. Other reputable lawyers have been, known to slightly change or correct; a mistake in an executed, paper left in their possession, in order that it might conform to and express the true facts, however! reprehensible the practice. He states that the dark ink was suqh as he used in his office. How, while a mere subsequent writing in of the date alone is of little importance (and a mistake irt dating a year ahead has. never been known to me, while givinjg the date of the past year-frequently occurs), yet the fact of inserting the clause in the disposing part either renders the alleged will wholly void or void pro tanto. I have frequently had occasion to animadvert upon, the use of blank forms, and of leaving blank spaces in wills, and especially where they are left in the custody of the draughtsman. McCord v. Lounsbury, 5 Dem. Sur. 68, citing the case ' of Heady’s Will, 15 Abb. Pr. (N. S.) 211. The blanks may be filled with dispositions of property not intended by the testator. For instance, in this instancq there 'could readily have been added a provision to the effect tliat if Peter Uevins should die before his arrival at the age of 2jl years, the estate should be equally divided among the other children, or any other provisions which might occur to the draughtsman, until the blank space was entirely filled. Whether the instrument was so tampered with as indicated it is unnecessary to determine, as it must be rejected as a will upon another ground.

The subscription and publication of a testamentary instrument are independent facts, each of which is essential to a complete execution. The two prerequisites are distinct in their nature, as well as their purpose, and an omission to comply with either is fatal to its validity. There must be satisfactory proof of the subscription and publication of the will in the presence-of two witnesses. Baskin v. Baskin, 36 N. Y. 416. The case of Chaffee v. Society, 10 Paige, 85, where the testatrix, who had subscribed her will by making her mark, but not in the presence of the attesting witnesses, and afterwards, and in their presence,, placed her finger on her name, and said, “I acknowledge this to be my last will and testament,” and it was held that the will was not duly executed, was approved in Lewis v. Lewis, 11 N. Y. 220. Now, in this case, the witness Neely testifies that he does not remember seeing Mrs. Nevins sign the paper or make her mark, while Clinch swears positively that he did not, It does not appear that either of them was in the room when the mark was made, except that the attorney testifies that the whole business of the preparation, execution, and witnessing of the paper was done at the same interview, including the signing by the deceased and the three witnesses-, but this evidently refers to the interview between him and the deceased. Clearly the witnesses Neely and Clinch were not present when the paper was prepared, and that was done during the “interview.” Neither of them saw the paper in her hands, nor saw her make her mark or touch the paper; nor does it appear that the attestation clause was read to or by them. Mr. Clinch says Neely had signed his name before he entered the room, and he was there a half a name before he- entered the room, and he was there a half a minute—just long enough to sign his name. Deceased said nothing to him. There was no publication made to him. He only supposed it was a will because the messenger sent to him told him what he was wanted for; but the attorney told him to-sign. He did so, and went out immediately, and neither he' nor Heely saw the attorney sign as a witness, and yet the latter testifies that they all signed in the presence of the deceased and of each other, and that she declared it to be her last will and testament in the presence of tire three witnesses, and requested them to sign. He seems °to testify to what the law requires rather than to the facts as they actually occurred. Under the ■circumstances, it seems that little reliance can be placed upon his memory of the transaction. He is contradicted on too many vital points by the other entirely disinterested witnesses, and especially by Clinch, Avho is clear and positive in his statements. The proof is not satisfactory to my mind of the subscription by the deceased of the paper propounded in the presence of two witnesses, and therefore probate must, be refused. It is also very doubtful as to whether there xxras a proper publication, but it is unnecessary to consider that question here.

It may not be improper to remark that, in trying the case the learned counsel directed -their attention more particularly to the fact of the two different kinds of ink used in the body of the instrument and to inferences to be drawn therefrom and the resulting effects, rather than to the question of a valid subscription and publication. Decree accordingly.


author: Weiant, S.

text:
      In re Schuler’s Estate.

      (Surrogate’s Court, Rockland County,

      Filed July 31, 1893.)
    1. Bequest to cemetery corporation—Validity.
    By section 9 of Laws of 1847, chapter 133 (general act as to rural cemeteries), it is provided that an association thereunder incorporated may take and hold property for (inter alia) improving the cemetery lots according to the terms of the grant, devise or bequest. Beld, that the Oak Hill Cemetery of Nyack, whether incorporated thereunder or under the special act, Laws 1865, chapter 139, relating to Oak Hill Cemetery, Bockland County, might take and hold a legacy upon trust -to apply the income for the perpetual care of a lot therein, as section 8 of latter act conferred upon said cemetery the powers contained in the general act.
    2. Same—Statute against perpetuities.
    A bequest to a cemetery corporation upon trust to apply the income for the perpetual care of a lot does not violate the statute against perpetuities, when the act under which it is incorporated authorises it to hold funds for such a purpose.
    Application to compel payment of a legacy. Granted.
    William T. B. Storms, for petitioner; Snider & Hopper, for executors.
   Weiant, S.

This is an application by the Oak Hill Cemetery of Nyack, in this county, to compel the payment to its trustees by the executors of the last will and testament of John W. Schuler, deceased, of a bequest of $1,000, and interest thereon, pursuant to a direction of the testator contained in his said -will. That provision of his will reads as follows: “I hereby authorize, empower and direct my executors to pay over to the trustees of Oak Hill Cemetery of ÜSTyack the sum of $1,000, to be by them invested only on first mortgage bond and mortgage on improved real estate of double the value of such sum, and the interest accruing from the same to be applied by the said trustees in keeping my lot in said cemetery grounds (number three) in good and proper condition, making such needed repairs as are required from time to time during the several seasons of the year, to both fences and grounds, as shall be demanded, and this trust to be and remain in perpetual continuance; and my executors hereinafter named are named as supervising representatives of my estate, to see that the provisions of this trust are faithfully observed during their or either of their lifetime; they, also, have authority to name their successors by testamentary appointment; the trustees of said cemetery to permit and suffer my brother-in-law John Reinhard and his wife to be buried in said lot at their decease.”

The application is made under subdivision 2, section 2717r of the Code of Civil Procedure. The citation required by section 2718 was issued and duly served upon the executors. Upon the return day of the citation, the executors appeared by their attorneys, but filed no answer. The parties, through their respective attorneys, proceeded to dispose of the matter as if the question of the validity of the foregoing provision of the testator’s will was the only one to be considered and determined. I shall accordingly consider the matter and render my determination. The petition alleges that Oak Hill Cemetery is duly incorporated under the laws of the State of Hew York. This allegation was not controverted, and no proof was given thereof. The question was not raised on the hearing, and, when the matter was submitted, it stood as a conceded fact.. It must be assumed, in the absence of specific proof, that, if said cemetery was duly incorporated under the laws of this State providing for such corporations, the same was incorporated under the general statute authorizing such corporations, and with all the rights and powers conferred by such laws. Such corporation law is found in chapter 133 of the Laws of 1847, entitled “An act authorizing the incorporation of rural cemetery associations,” and the acts amendatory thereof. By section 9 of that act it is enacted as. follows: “Any association incorporated pursuant to this act may take and hold any property, real or personal, bequeathed or given upon trust, to apply the income thereof under the direction of the trustees of such association, for the improvement or embellishment of such cemetery, or the erection or preservation of any buildings, structures, fences, or walks, erected or to be erected upon the lands of said cemetery association, or upon the lots or plots of any of the proprietors; or for the repair, preservation, erection, or renewal of any tomb, monument, gravestone, fence, railing, or other erection, in or around any cemetery lot or plot; or for planting and cultivating trees, shrubs, flowers, or plants, in or around any such lot or plot; or for improving or embellishing such cemetery, or any of the lots or plots in any other manner or form, consistent with "the design and purposes of the association according to the terms of such grant, devise, or bequest.”

Here is a broad, comprehensive legislative enactment, as to the purpose and intention of which there can be no doubt. Its language is full and explicit, and clearly covers the purpose of the testator. Indeed, this is not denied by the executors’ counsel, but he contends that this general statute does not apply to the petitioner. He claims that the petitioner was created by chapter 139 of the Laws of 1865, entitled “An act in relation to Oak Hill Cemetery, in the County of Rockland,” and that the provisions of the general act above cited are not applicable to the petitioner. If it be assumed, in the absence of proof of the incorporation of the petitioner, that this latter act gave the corporate life to the petitioner, and there are provisions therein so indicating, one of which is section 2, which reads as follows: '“All persons who are now owners or hereafter shall become proprietors of lots or parcels of ground within the inclosures now known as the ‘Oak Hill Cemetery,’ or of such additional lands as may hereafter be purchased or added thereto, shall become members of the body corporate to be known as the ‘Oak Hill Cemetery of Uyack,’ ”—still the petitioner has the same rights and powurs as corporations incorporated under the general act. By section 8 of this act it is declared that, “except as herein otherwise provided, the said Oak Hill Cemetery shall possess the general powers and privileges, and be subject to the liabilities and restrictions, contained in chapter 133 of the Laws of 181-7, entitled ‘An act authorizing the incorporation of rural ■cemetery associations.’ ” This provision is also so clear and specific that it is not apparent where any question can arise as to the petitioner having the powers conferred by the general act.

'Ihe executors’ counsel advances still another objection to the granting of this application. He contends that the bequest is void under the statute against accumulations and perpetuties. It. is by such statute provided that: “The absolute ownership of personal property shall not be suspended by any limitation or condition whatever for a longer period than during the continuance .and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or, if such instrument be a will, for not more than two lives in being at the death of the testator.”

This objection would be well taken were it a. fact that the statute for the incorporation of rural cemeteries did not legalize and authorize the trust in question created under the testator’s will. This statute against perpetuities is general, and applies to all cases, except where special provision is otherwise made. The same power that created the general prohibition can authorize an exception, and determine that the general provision shall not apply. The legislative power has prohibited generally such perpetuities, and the same power has, as to- cemetery corporations, removed such restriction and bestowed affirmatively the power and right to hold funds for the purposes specified in this will, and I see no reason why both should not stand with force, the latter as a statutory exception to the general law. In the case of Holland v. Alcock, 108 N. Y. 312 16 N. E. Rep. 305, the power to authorize trusts by legislative acts, and that the same is exercised, appears to be fully recognized. Judge ■ Rapatuo, in a most erudite and exhaustive opinion, reviews the law and authorities as to trusts, and says on page 336,108 N. Y. and page 316, 16 N. E. Rep.: “And the substoitution of a charity system maintained by our statute laws in the form of corporate charters, containing, by legislative enactmlent, power to receive, hold, and administer charitable gifts of every variety known in the practice of civilized communities and our statute of uses and trusts which may lawfully be created.” Of the statute against iDeipetuities he says: “The statute has been held binding on our courts, although, of course, it ceases to operate when the legislature charters a corporation for a charitable purpose, with power to take and hold property in perpetuity for such purpose”—citing authorities.

The counsel cites to sustain his contention the case of In re Fisher’s Estate (Surr.), 8 N. Y. Supp. 10. That case is distinguiskable from this. The learned surrogate does not decide that a bequest to an incorporated cemetery association similar to this one is invalid. That was a bequest of a fund to an executor, to be used to keep the testatrix’s burial plot in good condition, and it was held to be void, under the statute against, perpetuities. Here the bequest is to the corporation, and, as we have seen, the statute specifically makes such a bequest lawful. It is perfectly clear from a reading of the surrogate’s opinion that no such point was involved or considered by him as arises in this matter.

Ho question being raised but that there are now and have at all times been, ample funds in the hands of the executors applicable to the payment of this bequest, let an order be entered accordingly, directing the payment of the same to the trustees- or proper officers of the cemetery association. The question of interest on the legacy will be determined upon entry of the-order, as the provisions of the whole will are not before me. The petitioner is entitled to costs, to be paid out of the estate-


text:
      In re Van Nostrand's Estate.

      (Surrogate’s Court, Rockland County,

      Filed April, 1893.)
    1. Executors and administrators—Attorney’s fees.
    An administrator will not be allowed for moneys paid to Ms counsel for services requiring no legal skill, and which the administrator himself might have performed.
    2. Same—Allowance for clerk.
    In such ease a payment (inter alia) to counsel for the administrator for attending at an auction sale will be disallowed as to so much thereof as might be over and above what might be allowed a clerk if it were-essential that a clerk should be employed.
    3. Same—Reasonableness of charges.
    When an attorney is paid for services requiring legal skill, and he-testifies that the amount fairly compensated him, the court will, in the-absence of evidence to the contrary, and when it cannot be guided by its personal knowledge, allow the charge.

      Judicial settlement of account of Holland Trust Company as administrator.
    Snider & Hopper, for administrator; Abram A. Demarest, for contestant.
   Weiant, S.

—The only matters contested and submitted for mv consideration and determination upon this accounting arise upon the item in schedule C of the accounts: “Paid Snider & Hopper, services, $700.” From the bill submitted upon the hearing, it appears that the same is for legal services, and that the same has not in fact been paid by the administrator. The rule is well settled that in no event can an allowance be made to a representative of an estate for an administration expense— as, for instance, counsel fees—until he has actually paid it. Redf. Sur. Pr. (4th Ed.) 444; In re Bailey, 47 Hun 477; Shields v. Sullivan, 3 Dem. Sur. 296. But I shall not dispose -of this matter upon that ground. The only oral testimony relating to the services charged for was given by Garret Z Snider, Esq., ■of the law firm who rendered the same. He testified on hia direct, examination to the services performed somewhat in detail, but aggregated his' estimate as to their value at $700. On Pis cross examination he detailed the services again, and gave the valuation of the same in detail, which aggregates $505. The first services that he rendered were at the instance of the widow of the deceased, in searching to ascertain whether or not the deceased left a will. He says that he spent some 4-]- days in that respect, and that his services were fairly worth $20 per day, making a total therefore of $90. Assuming that the services were thus rendered, and that the same were reasonably worth the sum named, yet the same cannot be allowed this ■administrator. The right of an executor or administrator to •employ counsel in the prosecution or defense of actions or legal: ■proceedings affecting the estate is, of course, allowable and proper (Redf. Sur. Pr. [4th Ed.] 447), and he is entitled to be veimbursed for all such necessary and reasonable expenditures; but, to entitle him to charge the estate for moneys paid to his -counsel or attorney, the executor or administrator must sho-w ■that the services rendered were necessary, and that they merited the compensation awarded; and no allowance will be made where the services performed by counsel were such as the executor or administrator himself might justly have been expected to render. Id. 448; Raymond v. Dayton, 4 Dem. Sur. 333; St. John v. McKee, 2 Dem. Sur. 236; Joulnault v. Ferris, id. 320; Willson v. Willson, id. 462 ; In re Smith’s Estate, 1 Misc. Rep. 269-280, 22 N. Y. Supp. 1067; In re Casey’s Estate (Sup.), 6 N. Y. Supp. 608. These services, performed as to this matter by counsel, were such as the administrator, through its ordinary ■officers or agents, could readily have performed. Searching for the will required no legal skill or knowledge. All such services the law contemplates shall bo performed by the administrator or executor, and it is for such usual and ordinary services that the commissions allowed by statute are awarded. He cannot be permitted to take these commissions, and then charge the estate with the compensation which may be earned by some one whom he has employed to do his work. If an executor or administrator sees fit to employ another to transact for him the usual and ordinary duties of his trust and for which the commissions were designed as full compensation, the expense of procuring ■such services becomes his own debt, and cannot be charged to the estate. In re Beach’s Estate, 1 Misc. Rep. 27-33, 22 N. Y. Supp. 1079; Hall v. Campbell, 1 Dem. Sur. 415.

The charge of $10 for services in behalf of Mrs. Van Eostrand for making the effort to obtain a bond for her as administratrix is disallowed. I do not think an expenditure for ■such services is chargeable to the estate, as she was not. appointed •administratrix. In re Oollyer (Surr.), 9 N. Y. Supp. 297. Eeither do I consider that such service called for legal skill, as the same appears to have been simply an inquiry of the surety company as to whether the company would become surety for her.

The next charges are $5 for preparing a petition for the-appointment of the Holland Trust Company as administrator; $20 for obtaining the written consent to such appointment or the waiver of their right to administration, of three of the next of kin; $20 for the preparation and presentation of the papers to the Surrogate’s Court and obtaining the decree and letters of administration; and $10 for obtaining the appointment of appraisers. These services, requiring some special skill or knowledge as to legal questions, are properly such as the administrator is authorized to engage an attorney to perform, and charge the reasonable expense thereof to the estate. The sums testified to by Mr. Snider as fair compensation should be allowed, because the contestants offered no evidence to the contrary, and the court cannot be guided by its personal knowledge that the same are much above the usual charges. On July 29, 1891, it appears that Mr. Snider went to Hew York city, and, in company with the secretary of the trust company attended at the Hational Park Bank to obtain securities and papers of the deceased, and remove them to the office of the trust company. That is precisely what the law contemplates the administrator should have done without an attorney. Ho legal advice was required. The witness really so confesses, as he testifies that his only reason for so doing was because Mr. Van Sicklen, the secretary of the administrator, asked him to do so. On July 30th the usual notice to creditors to present claims was prepared, and the same delivered for publication in a newspaper by the attorneys; and on August 1st they caused notices of the making of the appraisement and inventory to be posted and served, which services, it is testified, were fairly worth $5 for what was done as to each matter, $10 in all. I am inclined to believe that such service was properly one that the administrator might employ an attorney to perform, and, as the value of the same is undisputed, the two items are allowed.

The attorney testifies to having performed Services in attending at the making of the inventory on two different days, and for which he charges $20 for each day; that he prepared and had published notices of a private sale of horses of the estate, for which he says the services were worth $5. He prepared notices for a public sale of certain of the personalty; had bills posted thereof; and performed other services in the way of preparing for the sale, for which he fixes $10 as the value. He attended at the sale; assisted at the same, acted as clerk; made some collections ; and fixes the value of his services in that matter at $25. The testimony discloses that the sales amounted to but $575.90, and that there was an auctioneer who was paid 10 per cent, on the sales for his services. These items amount-to $80, and are not proper credits. The administrator cannot be allowed for the services of an attorney or counsel in such matters. In re Quin (Surr.), 5 N. Y. Supp. 261; Pullman v. Willets, 4 Dem. Sur. 536, and cases above cited; In re Collyer (Surr.), 9 N. Y. Supp. 297. In Re Quin (Suit.), 5 N. Y. Supp. 201, an item of $30, paid for sendees to one who rendered services in making the inventory, was disallowed. Such a charge was refused in He Collyer (Surr.), 9 N. Y. Supp. 297. The learned surrogate says, at page 298: “It is difficult to see how the payment to counsel for attendance and advice on the making of it [inventory] can be regarded as a necessary expense, in view of the further fact that, at most, an inventory is a mere guide, subject to correction by either party on the accounting. The cost of the attendance of counsel a.t its making does not appear to have been a just or reasonable expense to be incurred in the course of the administration. Ignorance in the matter-on the part of the administrator will not justify it He must, in such case pay the penalty of his ignorance out of his own pocket. He can not expect the estate to educate him.”

The surrogate is supposed to appoint qualified men to per- , form this service, and in this case both were especially competent, as they were lawyers. It may well be that a clerk can be employed at an auction sale by an administrator, and he be repaid out of the estate for such an expenditure, but it must appear that it is essential to have a clerk, and what such service is worth. •That does not here appear, but I will permit this to be supplied, and then determine the same accordingly.

.As to the charges for sendees in the matter of the Eyack Electric & Power Company, consisting of three items, aggregating $40, the same are allowable only to the extent that legal services were necessary. Much of the services charged for were such that any person of ordinary business capacity could have • rendered; such as the search for, and correspondence as to, the lost certificate of stock, and also the collection of the dividends. As we have seen from a uniform line of authorities, such service should have been rendered by the administrator or its agents, and the statutory commissions are the compensation therefor. It would seem, however, that the services performed in giving the notice as to the loss of the certificate, and the giving of the bond of indemnity to obtain the new certificate, were of a legal character, requiring the service of one having some special legal knowledge, and, that being so, the administrator was justified in the employment of an attorney for those purposes, and I accordingly allow a credit for the same to the amount of $15.

Following the above matter are charges for services in regard to several western (Iowa) mortgages, known as the Hannon, East, Sumner, Crawford and Daubendick securities. It appears from the testimony, as also from the bill of Snider & Hopper, that, these services were wholly in the form of correspondence and inquiries by Mr. Snider of the western agents or attorneys who had charge of the same at the time of the intestate’s death. All legal services in relation to them seem to have been performed by the western agents or attorneys, and who appear to have been employed and paid to attend to those legal •matters. I find nothing specified in the testimony as to the performance by Snider & Hopper, of any service requiring special legal knowledge or experience. Indeed, I rest this proposition entirely upon Mr. Snider’s testimony. The following is an extract from the same: “Vi1 hat was there about that Sumner matter that required the services of an attorney, as distinguished from such services as ati officer of the trust company could perform % Answer. I don’t know what the officers of the trust company could have performed. They asked me in relation to those western securities, and I did what I have stated here. Question. Now, about those other western securities; what was there about them that required legal services, as distinguished from such services as those officers might have performed ? A. Well, I don’t know what the officers might have performed. Attorneys perform many things that men who are not attorneys can do just as well. I did whatever the trust company wanted me to do in relation to those mortgages. I don’t think it is for me to pass upon that. I did what they wanted me to do.” Then followed some further testimony in the same line, at the close of which the witness gave this answer: “The same service might have been done by a man who was not an attorney, and consequently might have been done by an officer of the trust company.”

This testimony shows without question a contract of employment between Snider & Hopper and the administrator, and for any and all services performed thereunder the administrator became individually responsible and liable, and is legally obligated to pay. But as to that this court has nothing whatever to do. That is á matter to be adjusted and determined as between the attorneys and the trust company individually, and not as administrator. We have here only to do with the question as to whether the expenditures are properly chargeable against the estate as between the parties interested in the estate and the administrator, and, as we have already made it appear from the statute and authorities construing the same, for such services as were rendered with reference to those securities the administrator cannot charge the estate or be reimbursed therefrom, as the commissions are the compensation for that work. If the administrator sees fit to not personally perform these ordinary services attendant upon the performance of the trust he assumes, but employs an agent or attorney to perform the same, then he must individually make payment therefor. The charges for the services rendered in relation to these securities are accordingly wholly disallowed, except for the preparation of the assignment- of the Sumner mortgage, which is allowed at five dollars, as the value is stated by Mr. Snider. As to the services rendered in regard to the collection of the note against Green & Son, none were such as ma'de it necessary to employ a lawyer. Ho legal steps or proceedings whatever were talcen. The officers of the administrator or its employes could and should have rendered the same for the commissions. Mr. Snider admits that the administrator could probably have collected the claim. Ho allowance can be made for that service.

In the Grove matter there appears to have been a litigation pending at the time of the death of the intestate in which the intestate was represented by an attorney by the name of John J. Gleason. Hothing whatever-has been done in that matter since the intestate’s death, except to pay Mr. Gleason’s bill for his services, and obtain the papers from him with his consent to a substitution of another attorney for the administrator. This matter may be eliminated from consideration at this accounting, «and reserved for disposition upon a future accounting, when the litigation may be finally adjusted or determined. Inquiry as to the bank stock and Balch and Haring notes were all the services that were rendered as to those matters, and, for reasons already assigned as to other similar charges, the same are not allowed. The claim for reimbursement for services in reference to the Brigantine Beach properties was withdrawn, as the same related to the real estate over which the administrator had no jurisdiction or supervision. A decree may be settled and entered accordingly.