author: Ransom, S.

text:
      In re Zerega’s Will.

      (Surrogate’s Court, New York County,

      Filed October, 1892.)
    Testator’s domicile—What constitutes.
    A testator was domiciled in Hew York City prior to 1854, and thence till 1863 in Westchester County, where he had purchased a country residence. In 1863 he purchased a house in New York City, where lie . - maintained a residence for twenty-five years subsequently till his death. He lived seven months each year in the New York City house, and all the evidence showed that he exercised absolute ownership thereover, although his married daughter and her husband lived with him. In 1876, on qualifying to be an executor, he described himself as a resident, of New York City, and in 1887 he wrote a recommendation for his gardener, stating that if he was ever in want of a gardener for his “country place” he would take him as such. There was no evidence that he had voted subsequently to 1863. Held, that his domicile was in New York County, although he had made declarations under circumstances not disclosed that he had bought the New York City house for his daughter, that he had his “home” in Westchester County, that he had paid his taxes in latter county, that he had made wills in 1872 and 1885, de'scribing himself as of Westchester County; that he had advertised his place in latter county for sale in 1888, describing himself as having lived there from 1854, and that he had written a letter in 1888 directing certain checks to be sent to his bankers, as his. residence was not in “New York, but Westchester.”
    Petition to revoke probate of will. Denied.
    Johnson, Gallup & Hurry, for petitioners; Horace Barnard, for respondent.
   Ransom, S.

—Section 2476 of the Code of Civil Procedure provides that the Surrogate’s Court of each county shall have-exclusive jurisdiction to take the proofs of wills, when the decedent was, at the time of his death, a resident of that county. Augustus Zerega died in the city of Hew York on December 23, 1888. The petition for the probate of his will, filed by his-widow, recited that the testator was “late of the County of Hew York;” that he “was, at or immediately prior to his death, a resident of the County of Hew York.” The paper was verified in the usual form. In January, 1889, all of the heirs and next of bin waived the service of a citation, and the execution of the will was proved by the subscribing witnesses. On February 11th it was admitted to probate, and letters testamentary were-issued to the widow, her eldest daughter, and two of her sons. On April 22, 1889, six sons and a grandson of the testator and a legatee named in the will united in a petition to the surrogate, praying that thfe decree of probate be revoked, alleging, upon information and belief, that the petition for probate was signed by the widow without reading it, or without a realization of the importance of its contents, and (in substance) that Mr. Barnard, the attorney, had misrepresented to her the purpose of the petition; that the testator was, at the time of his decease, not a resident of the County of Hew York, but was, and for a period of 35 years had been, a resident of Westchester County, where his family residence was situated; that Mr. Barnard had represented to the various heirs at the time he took the will that he would have it probated in the proper county; that they were ignorant of the law governing such proceedings, and of the proper county for such probate, and that they signed the waivers under the belief that they were in due form of law, and alleging that this court had no jurisdiction to enter the decree admitting the paper to probate. Mr. Barnard is the husband of one of the executrices, and had represented the proponent in proving the will. He put in an answering affidavit, in which he not only denied the statements of the petitioners, but alleged that the testator was and had been a resident of Hew York since 1803, and set forth other matters pertinent to the subject. This, was followed by further affidavits made by the sons, the grandson,- and others in support of their petition. After due consideration of the case on all the papers presented, I denied the petition. On appeal, the General Term, in December, 1890,. decided that the decree of probate must be reversed. 12 N. Y. Supp. 497. This would seem to be final, and to have ousted this, court of jurisdiction; and though the General Term, by an order entered December 29, 1890, did adjudge that the decree of probate was “in all respects reversed,” it remitted the proceedings in this court “for further action,” hut it gave no intimation of the action to be taken. In a memorandum filed June 17, 1891, I called attention to the anomalous situation of the case, and had it placed in the calendar for a hearing on June 23rd. Subsequently, on July 8, 1891, on the consent of the respective attorneys, an order was entered directing E. F. Underhill, Esq., as assistant, to take further evidence, and it is upon the record of proofs reported by him, and the previous papers and proceedings, that the matter no-w comes before me for decision.

The word “resident,” like many others in the language, has varying shades of meaning. In its application to this proceeding it will be considered in its legal sense. In the Century Dictionary it is defined to be “a place where a man’s habitation is fixed Avithout any present intention of moving therefrom; a domicile.” And “domicile,” in the same work, is defined to be “a place Avhere a person has his home, or principal home, or where he has his family residence and personal place of business ; that residence from which there -is no present intention of moAÚng, or to which there is such intention to return, it depending upon the concurrence of "two elements: First, residence in the place, and, second, the intention of the person to make that place his home.” Judge Grier, in White v. Brown, 1 Wall. Jr, 217, says: “It may be correctly said that no one word is more nearly synonymous with the word ‘domicile’ than the word ‘home.’ ” These definitions reflect the concensus of opinion as expressed by the courts. Though a man may have two residences, he can have but one domicile. Douglas v. Mayor, etc.. 2 Duer, 110; Bell v. Pierce, 51 N. Y. 16. Augustus Zerega, for many years, had two residences. For some time after he came to this coxmtrv his domicile of choice was the city of UeAV York. From 1354 to 1863 his sole residence was in Westchester, and for that period,. certainly, Westchester was his domicile. In 1863 he purchased a house in East Thirty-fifth street, Avhere, for the last 25 years of his life, he maintained a residence in the city of Mew* York. In Dupuy v. Wurtz, 53 N. Y. 561, the court held that, to effect a change of domicile, there must be both residence in the alleged adopted domicile and intention to adopt such place of residence as the sole domicile; that residence alone had no effect, per se, though it might be most important as a ground from Avhich to infer intention; that length of residence Avould not alone effect a change, and intention alone would not do it, but the two taken together constituted a change of domicile. Bid Mr. Zerega, when he acquired a residence in this city, which he occupied the greater portion of each of the 25 years preceding his death, or at any time subsequently, elect to make it his domicile, and to look upon his Westchester house as a country residence ? On the ex parte affidavits of the petitioners and others sustaining their contention, and the answering affidavit of Mr. Barnard, I held that he did. On the same evidence, the General Term decided that he did not, and that his stays in New York were only temporary. Many of the facts assumed by the appellate court as the ground for its decision have been shown by the proofs taken in this proceeding, in which there v7as an opportunity to cross-examine the affiants, and by other evidence, to have been largely without foundation.

To sustain their contention, the petitioners rely mainly upon the oral and the written declarations of the testator, the fact that he paid taxes on bis personal property in Westchester County, and the assumption that he voted there. The oral statements extend over a period of 25 years, and for the most part are testified to by the petitioners. Their value as an aid in determining the question of domicile depends upon whether they have been accurately restated by the witnesses, and upon the credit to be given to their testimony. In this proceeding the hostility to Mr. Barnard of the petitioners who appeared as witnesses before the assistant was not disguised. The statements made in their affidavits, perhaps without due consideration, became extravagant and reckless under the cross-examination by Mr. Barnard, which was conducted in no amiable spirit, and it is apparent that at times bias and personal feeling caused them to exaggerate, if not to distort, the language of the testator. Nor can I trust the accuracy of their memories, covering a period of many years, in some instances, after the words were uttered. Still I have no doubt that the testator did, in words or in substance, after he had acquired a residence in New York, say that he “lived in Westchester;” that he had his “home” or his “residence” there; that he had “lived there 35 years;” and that he used other similar expressions. The circumstances under and the spirit in which he made the statements are not disclosed; and if he ever spoke of being a “citizen” of Westchester, as stated by one witness, it is not shown whether it was before or after he bought the house in Hew York. Words are not used by laymen with the precision which lawmakers and courts aim to employ. Even in legal enactments, in which the words “resident” and “residence” are used, the courts have often been invoked to interpret their meaning as applied to particular cases. The word “domicile” (which was used in the earlier decisions in this State) has not been traced in this case to the testator’s lips. If he had used it, it is doubtful whether he; a man of business, would have understood the refined distinction between it and words of similar, though not exactly the same, import. Westchester County had been his domicile; certainly, until 1803. From that time until his death it continued to be his residence for five' months in the year. The words attributed to him are not inconsistent with the formation of a purpose, at some period during the 25 years preceding his death, to make Hew York his domicile. Akin to these statements of the testator are declarations attributed to him that he had purchased the house in Thirty-fifth street for his daughter (who was about to many Mr. Barnard) to live in; that, as he had bought the house, he might as well have the benefit of it; that he visited his daughter in winter; that he thought it would be better to help her pay the expenses of the table, etc. The language attributed to the testator in this regard cannot be accepted as evidence of facts, and any presumption claimed to arise from it may be rebutted by trustworthy proofs that it is untrue. The circumstances under which the language was used are not shown—whether in a petulant mood, in a spirit of fault-finding, or whether it was deliberately uttered.

With written declarations the liability to a distortion of language is lessened, and if the paper is all in the handwriting of the party it is not open to suspicion. But the value of written declarations as evidence depends upon the circumstances under which they were made—-whether care was taken to have the paper read to the party, if only the signature is in his handwriting, and whether his mind grasped the legal import of the words used, if the language in the paper was not his own. In the words of Surrogate Bradford (Isham v. Gibbons, 1 Bradf. Sur. 91), “written declarations, even of the most solemn character, are but facts to enable the court to discover the intention of the party. It is in this light alone that they are to- be received and weighed. At best, the animus of the party is only to be inferred from them. In this respect they are taken like any other facts. Declarations of any kind are not controlling, hut may be, and frequently are, overcome by other and more reliable indications of the true intention.” So, in Attorney General v. Kent, 1 Hurl. & C. 12, though the judges held that jurisdiction was in the English courts, they stated that the declaration in the will that the decedent was “residing in the County of Surrey” was entitled to vary little consideration. And in Gilman v. Gilman, 52 Me. 165, it was held, though the testator described himself as “of the city and State of Hew York,” that the recital could not weigh against facts which led to the conclusion that his domicile continued at Waterville1, in the State of Maine. In Hegeman v. Fox, 31 Barb. 478, referring to both oral and written declarations, the court (Judge Emott writing the opinion) says: “'To the evidence of what he said at various times, I attach little importance. It comes to us impressed with the character of the particular mood of the man when he uttered it, which, no doubt, varied and was affected by the condition of his health, by his family circumstances, and by other causes. It is colored more or less by the medium through which it comes, and it depends altogether upon the recollection of witnesses; nor do I consider the statement in Mr. Moore’s bill in chancery that he was an inhabitant of Florida, standing alone, as at all decisive. It was necessary for him to make such an allegation for the purpose of his suit, and he might very well have made it without fully considering its import or its extent or its consequences in other relations. Coupled, however, with his conduct, it is evidence which may disclose- another motive for a wish, on his part, to acquire a residence in Florida, at or after the time when he settled near Jacksonville. * * * But the whole matter is a question of intention, and no. arbitrary rule is to be laid down in relation to it.” And in Dupuy v. Wurtz, 53 N. Y. 562, it is laid down as a rule that “courts must draw their conclusions of intention to change a domicile from all the circumstances in each case.”

The written declarations relied upon by the petitioners are: First. The will of 1872 (executed nine years after the testator had acquired a residence in New York), in which he declared himself as of the town and County of Westchester. The paper was drafted by Mr. Barnard, who claims that from early in December, 1863, the testator had been domiciled in the house in East Thirty-fifth street. Mr. Barnard’s explanation for inserting a recital which he claims was untrue-, is, “if he gave the matter any thought,” that it was “to please the vanity of other1 members of the family, who thought themselves dignified by their father owning a country residence,” though he states he had no conference with them about the will. The explanation is a suggested possibility, and is unworthy of consideration. The paper was copied by the testator, and executed, and I see nothing to discredit the recital of his place of residence- in 1872 as equivalent to a domicile. Second. A paper written by testator in 1886, and delivered to Mr. Pelham Clinton, in which he sets forth the wholesomeness of his Westchester place, as evidenced by the fact that he, at 83, and his wife at 77, had lived there since 1854, with a large family of children and grandchildren, with but one death. But the avowed purpose of writing the article was for Mr. Clinton to procure its publication in the newspapers as a means of reaching a purchaser for the place. The statement was, to say the least, disingenuous, for it is shown that for 25 of the 35 years he had passed only five months in each year on his Westchester property; and, as the paper was written in the month of November, it was probably prepared in his New York house. Third. A letter of the testator to the gas company, written in May, 1888, while he was still in his Thirty-fifth street house, directing that the cheeks for dividend on his stock be sent to Hallgarten & Co., who were his bankers, and “not to 2G East Thirty-fifth street,” stating that his residence was “not in New York, but Westchester.”- The two dividends which followed—June 15th and December 15th—■ were sent to his bankers, as requested. A few days after the last dividend he died. The purpose of the letter is evident—to avoid the necessity of having checks re-mailed to him from East Thirty-fifth street to Westchester, to be then forwarded to Hallgarten & Gov The language seems to import- that he had had trouble in this respect in'previous years. In the statement written for Mr. Clinton he used the word “living;” in the letter to the gas company, the word “residence.” He and his family had “lived,” and were still living a part of the year in Westchester, and at the time he wrote to the gas company his “residence” was, and for 25 years had been, during seven months in the year, in East Thirty-fifth street. Whether that was his domicile I will consider hereafter. But in neither case were the circumstances under which the words were used such as to lead him to carefully weigh their technical significance. Fourth. The will of 1885, in the testator’s handwriting, in which he again describes himself as “of the town and County of Westchester.” The paper had been drafted by Mr. Barnard, he using the language of the will of 1872, except where its provisions were to be modified, and, if Mr. Barnard’s testimony is to be credited, wdth the understanding that the testator would go over it with him before its execution. It was not done, however’, and the instrument recites him as of Westchester.

In this connection I may refer to written declarations of the testator which tend to show the recognition by him of a domicile in New York. In September, 1876, he, as executor, propounded the will of his late partner, Mr. Bernier, for probate, and in the petition, duly verified, he described himself as of the city of New York, and in qualifying as executor in December following he said: “I am a resident of No. 26 East Thirty-fifth street, in the city of New Yoi'k.” I see no reason for the statement in the brief and argument of the petitioner’s counsel that Mr. Barnard, who was the attorney in that proceeding, had “entrapped” the testator into making these declarations, for the words filled in the blank form of deposition’do not seem to be in Mr. Barnard’s handwriting. They were probably inserted by a clerk of this court at the probate desk, and, as is the rule, were read by the affiant, or they were read to him before his signature was affixed. It is most improbable that a painstaking, careful and conservative business man, as this testator is shown to have been, would swear to a paper without knowing its contents, though, as I have previously stated, it may be doubted whether he considered the legal significance of the word “resident.” Then, on December 12, 1887, he wrote from 26 East Thirty-fifth street a recommendation for Patrick Smith, who had been in his employment for six years, stating that if he was ever in want of a gardener on his “country place” he would take him as such. To the same effect are certain oral declarations. To Mr. McRae, who was negotiating a sale of the property, he spoke of the Westchester house as his “country seat” or “country place.” To Mr. Barnard he used similar language. Even George T. Zerega, the most active petitioner in this proceeding, testifies that his father bought the New York house, and “intended to live in it.” The petitioners claim as evidence of the continuance of the testator’s domicile in Westchester the fact that he was assessed for and paid taxes on his personal property there. It was admitted on the trial that he did pay such taxes from 1856 to the time of his death “upon the personal property which was actually located at. his country place in Westchester.” With personalty at his death vrorth from $350,000 to $400,000, it was his good fortune that the authorities in Westchester laid his tax at only $10,000, when his sole residence was in that county. If he did change his domicile to New York, he was very willing that the assessors in Westchester should still look upon him as a resident there, rather than invite scrutiny by the Few York authorities into his means, with a disclosure that would lead to a large increase of the amount of the taxes. In Douglas v. Mayor, etc., supra, the plaintiff was taxed for his personal property in this city, though his domicile was on Long Island, and he occupied a hired house in Hew York during the winter and spring months only. So in Bell v. Pierce, supra, the plaintiff’s place of business and domicile were in Buffalo, -but he was taxed on his personal property in West Seneca—his summer residence—where he and his family were at the time the taxes were laid. In each case, the party resisted the attempt to collect taxes in a place which was not his domicile, and in each the court decided against him. So in this case, the payment of taxes cannot fix the domicile of the testator in Westchester, if the facts proven point to a different conclusion.

In their affidavits the petitioners swore that they knew “of their own knowledge” that the decedent voted in the County of Westchester. The General Term seems" to have laid much stress on this as a fact abundantly proven. But when the affiants were produced for cross-examination in this proceeding, their positive statements were found to be based on the merest hearsay. John A. Zerega testified that the testator told him “twenty times—yes, a hundred times—that he had voted.” Another son, Alfred, stated that the testator drove with him to the polls. He thinks they started from his father’s house (probably the Westchester house), the testator stating that he was going to vote for his old friend Watson for supervisor, and that at the polls he saw his father talking with others. He stated the- time as the second election o-f President Lincoln. This would have been in 1864, and Alfred says that he himself then voted for Mr. Lincoln. The worthlessness o-f his testimony in respect of time is shown by the fact that the town meetings at which supervisors were elected were, by law, directed to be held beitween the 1st of February and the 1st of May in each year (Laws 1839, ch. 389, sec. 2), and this was the law in 1864. Alfred says that while in the carriage the testator said that he had never voted but once, and would not vote except for Hr. Watson. There is no evidence in the case to show when Mr. Watson was a candidate for a town office. If in the spring of 1863, or antecedent thereto, it was before the removal of the family to the Thirty-fifth street house, when he was still living .in his country place, and hence reflects no light on the question of a change of domicile in December, 1863, or thereafter. If in 1864, it was when he was actually living in the Thirty-fifth street house, whether in the spring or fall; and his daughter, Mrs. Barnard, testifies that he never left the city to vote in Westchester. There is no evidence suggesting that he voted for a town officer after 1864. But the decisive fact is the certificate of the town clerk of Westchester, which shows that the poll lists from 1863 to 1882 (except those of 1872 and 1877, which were not found among the papers in his office) do not contain the name of the testator. Hence, when he did vote in Westchester, if ever, it was prior to the election of November, 1863. Nor does the fact that the testator’s name appears on the registry lists of 1863, 1864, 1865, 1867, 1868 and 1869 (1866 not being reported by the town clerk) raise any presumption of a purpose to vote after 1863, especially in view of his indifference to the exercise of the right of suffrage apparent from the proofs. By the act of 1865 (chapter 740), the registry lists were made up from the poll lists of the previous elections, to which no name could be added except upon the application of a person appearing before the board. It strains one credulity to believe that, year after year, a man would apply to be registered in Westchester when he had no intention of voting. I have not been able to find the statute providing for the registry of voters preceding 1865. When it is considered that, the petitioners had scarce any foundation for a belief, not to say knowledge, that the testator had voted in Westchester, if the fact does not raise a suspicion of the honesty of their statements, it certainly makes them valueless as a support of their contention.

Another fact which the petitioners claim is evidence that the testator’s stays in New York were annual visits, and that his domicile continued in Westchester, is that, -whereas, m their country residence, he and his wife occupied opposite ends of the table at meals, in ¡New York Mr. and Mrs. Barnard held those positions, and the parents sat at their daughter’s side. But, as they had reared a large family, and were advancing in years, it was natural that each should wish to he relieved from unnecessary cares, and, with a daughter and son-in-law a part of their family, to let them act in their stead.

The effort of the petitioners to place the testator and his family in the attitude of boarders with Mr. and Mrs. Barnard has utterly failed. The allegations in their ex parte affidavits that he “was in the habit of hoarding in ¡New York for a part of the year;” that “he paid a certain sum monthly for his expenses ;” and (as testified by one petitioner) that he hoarded with Mrs. Barnard (which Mr. and Mrs. Barnard deny), and paid an extravagant price therefor—and other similar declarations, have been disproved hy the evidence. The testimony of Mrs. Barnard is that when the testator and his family moved into the Thirty-fifth street house, he directed her to take charge, enjoined her to be economical in its conduct, to bring him the hills for household expenses, which she did, and he gave her the money to pay them. This continued for two or three years, until he began to give checks to the order of Mr. Barnard, Mrs. Barnard not wishing to open a hank account. The checks were passed to Mr. Barnard’s credit in the hank in which he kept an account, and from time to time, he drew his own checks to meet the expenses of the household, including the wages of the servants (except the nurse employed by Mrs. Barnard), and many other disbursements for members of the testator’s family. The testator’s checks, as appears from the testimony, were given by him to his wife, who passed them over to Mrs. Barnard. The account hooks kept of the expenses of the household were each month audited hy the testator, and to each footing he added a memorandum in his own handwriting, “Entered.” This fact admits of no reasonable conclusion other than that he controlled the house, paid its expenses, and that to Mr. and Mrs. Barnard were given the cares of the housekeeping, from which he and his wife wished to be relieved; and that, for their services, tho daughter and son-in-law received their sustenance as members of his family. The only foundation for the claim that tire testator and his family “boarded” with Mr. and Mrs. Barnard is the language attributed to him by the petitioners'. With their animus towards Mr. Barnard, the force of his words, in all probability, was exaggerated. But, admitting that they substantially reproduced his declarations, they cannot weigh against the evidence.that the testator was the head of the household; that bis will controlled its management; that at any moment he could have displaced Mr. and Mrs. Barnard, and he and his wife-resumed the cares which they had delegated to them.

The testimony of one of the petitioners that, until the will was read, he had always supposed the Thirty-fifth street house was Mrs. Barnard’s; that it wus always spoken of as her house,, and when he visited it, he believed it was by her invitation, and ■that he was her guest—is not worthy of consideration. Repute- and belief cannot establish a domicile, much less pass title to real estate. As refieeting on the credence to be given to the petitioners’ statements is the allegation in their ex parte affidavits, that during the testator’s stays in Mew York his residence in Westchester “was in charge of six servants.” One would'infer from this language that six of his house servante were left in the Westchester residence, whereas, for' several years after his family came to Mew York in Movember it was-closed, and left closed until they came back in June. A burglary on the premises caused the testator to have a room fitted up for two farm hands to occupy at night as a precaution against further depredations.

■ A brief statement of the testator’s career as bearing on the-probabilities of his having resumed his domicile in Mew York may he stated. He was a foreigner by birth, and no evidence of his naturalization has been found, after careful search, in the records of the courts of this city. According to his own statement, he did vote for a candidate for mayor of Mew York nearly a half century ago, when he was living at an hotel. He afterwards purchased a house on Fifth avenue, where he lived with his family until 1854, when he sold it, and purchased the property in Westchester, to which they removed. He then retired from active life, the business being carried on by his partners—Mr. Bernier and his eldest son. For several years he did not leave his country residence. With sons grown up, and the cares of a large country place, he found life less congenial than when he resided in the city, and, as early as 1860, he expressed a desire to sell the property. Each fortnight he visited the city and remained at an hotel for two or three days. In 1863 his eldest daughter had become engaged to Mr. Barnard, then a young-attorney, whose sphere of professional work was to be in Hew Y ork. This afforded him an opportunity to return to the city. In May of that year he negotiated the purchase of the house and furniture on East Thirty-fifth street. He brought his wife and two daughters to the city, took them through the house, and, as it pleased them, he concluded to buy it. He allotted the various apartments to the different members of the household, except the rooms which he intended for Mrs. Barnard and her husband. The negotiation and the allotment of the rooms were without the knowledge of Mr. Barnard, who, when the matter was broached to him, objected, but he at length acquiesced in the arrangement. A contract of purchase was signed, and on June 2, 1863, title was passed, and the testator took possession of the property, and left it in charge of a servant of its former owner'. The marriage of his daughter took place July 30th. After several weeks passed on their wedding tour, Mr. and Mrs. Barnard went to the testator’s house in Westchester, where they remained for a time. In October they came to the Hew York house. During the months of October .and Hovember the testator and his pmrtner, Mr. Bernier, occasionally slept in it. He purchased additional furniture especially for his own apartments. In December he came to the house, bringing his wife, two.married daughters, a son, a grandson, his wife’s mother, and a retinue of servants from Westchester. He brought also his bed and table linen and plate. He caused to be built an additional room for a man-servant. He exercised all the rights of the head of the house of which, with the most of the contents, he was the owner. He gave orders that certain parties objectionable to him be not invited to visit the house. When Mrs. Barnard was ill or absent, her sister occupied her place. This occupancy of the house by the testator and his family continued the first year from December, 1863, until May, 1864, and afterwards from November 1st to June 1st, when he and his family and servants left for Westchester. This practico continued each year until late in December, 1888, when they returned to Thirty-fifth street. On the 23rd of that month testator died. From there he was buried. A death notice, stating that as his residence, was published in the newspapers, with the knowledge of his eldest son, one of the petitioners who seek the revocation of the probate of his will in this county. From the Thirty-fifth street house the testator’s second daughter was married. In it he and his wife celebrated their golden wedding. There his wife’s mother died, and from that house her funeral took place. For a time after taking possession of the Thirty-fifth street house the testator had an office in New street, with his partner, Mr. Bernier. After Berneir’s death, he made his headquarters in the office of Hallgarten & Go., his bankers, who fitted up a portion of it for his use. His custom was to visit it daily, and whatever business "he did in the way of looking after investments was done by him there. For nearly 30 years he had been anxious to sell his Westchester property. The last year of his life he said he would never put his foot on the place again. Whether, at the beginning of his stays in the city, his intention was to abandon his domicile in Westchester, and fix it in his New York residence, may be doubtful. But there came a time, I am convinced, when it was determined upon, and it first found a fixed expression, as the evidence discloses, in 1876, in the petition for the probate of and his qualification as executor under Mr. Bernier’s will, in each of which papers he describes himself as of the city of New York. On all the facts known to Mr. Barnard at the testator’s death, as they have been disclosed by the evidence, he, as the attorney of the testator during his life, and of the widow in the proceeding to prove his will, was justified in assuming that this court had jurisdiction. It is a noticeable fact that neither the widow nor the daughters of the testator joined the petitioners in this proceeding. It could not be expected of Mrs. Barnard, when the good faith of her husband had been called in question. But if the allegations of the petitioners were true, and either the ends of justice or the interests of the heirs demanded, it is probable that the widow and her daughters, Mrs. Huntington and Miss Zerega, would have made supporting affidavits. Strenuous efforts were made by one son, certainly, to get his mother to swear to an affidavit, which she refused to do, because she found its recitals were untrue; and when it was modified she still declined to affix her signature. The only certain declaration of the widow which seems to favor the petitioners’ contention is in a recent letter, in which she states that Mr. Barnard “knew in his heart that he was wrong, but had not the manliness to acknowledge it.” This statement, however, was made in a correspondence with the son who has been most active in prosecuting this proceeding. But the conclusion of an old lady on an issue involving a technical definition has no significance in arriving at a decision of the case. That deception was practiced upon the widow by Mr. Barnard in procuring the verification of the petition for probate I do not believe. And it is incredible that tire several petitioners who seek its revocation should have been imposed upon by him when they executed waivers of the service of the citation; and when the two sons qualified as executors, after probate, they raised no objection. Their antipathy to Mr. Barnard, if it h.ad not already existed, was aroused when he suggested that debts due by some of the sons to the testator be included in the executor’s inventory of the estate. They objected, and when they found that he was not tractable, the feeling on the part of some •of the heirs became bitter. This was shown in the oral examintion of those produced, and that the feeling was heartily reciprocated hy Mr.-Barnard is manifest. One witness I do credit with a sincere purpose to tell the absolute truth without reserve. I refer to Mrs. Barnard. Her testimony shows that the motive of the petitioners in beginning the proceeding was to avoid taxation of the estate in this city. It also shows their unfilial efforts to secure the active co-operation of their mother to carry out the scheme. The result has been more than three years of litigation, in which had blood has been engendered and expense unnecessarily incurred. I can see no motive for Mr. Barnard desiring to prove the will in this court if the domicile of the testator was in Westchester. If it was not, I can see every reason why it should be proved here, where a large portion of the estate is, and where nearly all the heirs reside. As a result of a thorough examination of the whole case; I must deny the petition to revoke probate, and I will sign a decree accordingly.

(Note.—Aff’d by Gen. Term, without opinion, 76 Hun, 611.)

(Note as to law of domicil:)

Definition.— General Observation.— Leading Rule.— When a New Domicil is Acquired.—When a New Domicil is Not Acquired.—Degree of Proof.—Domicil of Ward.

Definition.

Domicil is defined as “that place where a man has his true fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning.” (Raine’s Bouvier’s Law Dictionary, 600, citing 10 Mass. 188; 11 La. 175; 5 Metc. 187; 4 Barb. 505; Wall. Jr. 217; 9 Ired. 99; 1 Tex. 673; 13 Me. 255; 27 Miss. 704; 1 Bos. 673; 74 Ill. 312.)

General Observation.

There are three kinds of domicil: Domicil of origin, domicil hy choice!, and domicil by operation of law. (Smith v. Croom, 7 Flor. 151; Story’s Con. L. 48-9.)

_ This note whll be confined to a consideration of that subdivision of the second kind, viz., domicil by choice, which is known as “domicil of succession,” which is defined in Smith v. Croom, 7 Flor. 151, as “the actual residence of- a man, within some particular jurisdiction, of such a character as shall, in accordance with certain well established principles of public law, give direction to' the succession to his personal estate,” and will also include cases where the domicil of a decedent who has resided in different counties of the State comes in question.

The leading1 New York case on the subject is Dupuy v. Wurtz, 53 N. Y. 561, in which it was held that to effect a change of domicil for the purposes of succession, there must not be only a change of residence, but an intention to abandon the former domicil and acquire another as the sole domicil. There must-he both residence in the alleged adopted domicil, and intention to adopt such place of residence as the sole domicil. Residence alone has no effect per so, though it may be most important as a ground from which to infer intention. Length of residence will not alone effect the change. Intention alone will not do it, but the two-, taken together, do- constitute a change of domicil— citing Hodgson v. DeBeauchesne, 12 Moore, P. C. Cases, 283, 328; Munro v. Munro, 7 Cl. & F. 877; Collier v. Rivas, 2 Curties, 857; Aikman v. Aikman, 3 McQueen, 855, 877. This rule is laid down with great clearness in the case of Moorhouse v. Lord (10 H. L. 283, 292) as follows: Change of residence alone, however long continued, does not effect a change of domicil as regulating the testamentary acts of the individual. It may be and is strong evidence of an intention to change the domicil. But unless in addition to residence there, is an intention to change the domicil, no change of domicil is made. And in Whicker v. Hume (7 H. L. 139), it is said the length of time is an ingredient of domicil. It is of little value if not united to intention, and is nothing if contradicted by intention.. And in Aikman v. Aikman (3 McQueen, 877), Lord Gran worth says, with great conciseness, that the rule of law is perfectly settled that every man’s domicil of origin is presumed to continue until he has acquired another sole domicil with the intention of abandoning his domicil of origin; that this change must be anima et facto, and the burden of proof unquestionably lies upon the party who asserts the change.

Leading Rule.

The leading rule is that, for the purposes of succession, every person must have a domicil somewhere, and can have but one domicil, and that the domicil of origin is presumed to' continue until a new one is acquired. (Same case, citing Somerville v. Somerville, 5 Ves. 750, 786, 787; Story, Conf. Laws, sec. 45; Abington v. N. Bridgwater, 23 Pick. 170; Graham v. Public Ad., 4 Brad. 128; DeBonneval v. DeBonneval, 1 Curtis, 856; Attorney General v. Countess of Wahlstatt, 3 Hurl. & Colt, 374; Aikman v. Aikman, 3 McQueen, 855, 863, 877.)

Whew a New Domicil is Acquired.

When a testator purchased an expensive house in New Haven, where he said he would live and die, and that he would never live in New York again except for a few days, and soon after-wards died, held, that his domicil was in New Haven, although he previously spent the winters in New York and the summers in New Haven, and was described in his will as of the city of New York. (Petersen v. Chemical Bank, 32 N. Y. 21, aff’g 27 How. Pr. 491.)

A testator who was in ill health left Brooklyn for Florida, stating that he could not stand the climate of the north, and that he never expected to return. Held,, that as he hadnold his house and furniture in Brooklyn, and closed up his business there, his domicil was in Florida, where he purchased a plantation, and where he died within two years subsequently, and his wife was entitled to one-third of his personal estate according to the law of Florida. (Hegeman v. Fox, 1 Red. 297; aff’d 31 Barb. 475.)

• A testator was held to be domiciled in New York, although he had described himself in his will and in a trust deed as of "the State of New Jersey, in which State he died, and had a residence, when he also had a residence in New York County, where he resided the greater portion of his time, and where he voted and held official positions, and that therefore a provision of his will was invalid under the laws of this State as violating the statute of perpetuities, although valid according to the laws of the State of New Jersey. (Mackenzie v. Mackenzie, 3 Misc. 200, 23 N. Y. Supp. 270.)

Intestate, a resident of New York City, having become mentally unsound, was removed to Oneida County in 1894, where he resided till his death in 1897, except for a short residence in Connecticut. A committee of his person and estate was appointed by the Supreme Court of Oneida County. Held, that decedent’s residence at his death was in Oneida County, and that the New York Surrogate’s Court had no power to issue letters of administration to his estate. (Matter of Hyland, 24 Misc. 357, 53 N. Y. Supp. [87 St Rep.] 717.)

Whebt a New Domicil is Not Acquieed.

I he word “resident” in the statute authorizing the reception of a foreign prohate in the case of a will made by a non-resident in this State, does not mean an actual, naked residence;, but a permanent and fixed abode, and is synonymous with the words “inhabitant” and “domicil.” (Isham v. Gibbons, 1 Brad. 69, in which case it appeared that testator, who had lived in and had a dwelling in New Jersey, came to New York to consult a physician, and rented a house where he died after two years’ occupancy. All the evidence showed that his residence in New York was merely for the1 convenience of seeing his physician, and that- he intended to return to New Jersey. Held, that his domicil was in New Jersey, and an exemplification of the probate of his wrill in that State should be recognized as valid here.

An intestate on her way from Scotland, her domicil of origin, to Canada West, died at Staten Island. Held, that as she had not lost her domicil of origin, mere intention to change not being sufficient without actual residence in the intended domicil, her estate should be distributed according to the law of Scotland. (Graham v. Public Administrator, 4 Brad. 127.)

A testator who was born in and resided in the city of New York till her marriage went with her husband to live in Philadelphia, where she resided with him for thirteen years, when they separated, the husband making his home in Philadelphia, and she, with three children, in New York, where she lived with them till a short time prior to her death, which occurred in Europe. She supported her children out of property left her, and which she bequeathed to them by her will. Held, that as since the passing of the Married Women’s Acts the rule that a woman acquires the domicil of her husband and changes it with him, no longer prevails, and she may acquire a separate domicil of her own, the domicil of the wife was in New York City, and not Philadelphia. (Matter of Florence, 27 St. Rep. 312, 54 Hun, 328, 7 N. Y. Supp. 578.

Declarations of a change of residence, or of intent to do so, are not sufficient to show such change; there must also be proof of facts showing an actual change. (Matter of Clarke, 40 St. Rep. 12, in which case it was held intestate had not changed his residence from Otsego County to Herkimer County.)

In Cruger v. Phelps, 21 Misc. 252, 47 N. Y. Supp. (81 St. Rep.) 61, it was held that although a testator had resided for many years in different parts of Europe, he did so on account of his wife’s and daughter’s health, and as he had in his will and many other documents described himself as of the city of Hew York, and as his property was almost entirely in this country, he had never lost his domicil here, and his will should he construed according to the laws of this State.

A testator came to Hew York City in March, 1894. His residence had been previously at Piermont, Rockland County. He boarded in Hew York City till 15th of March, 1895, at the expense of his wife, wdio would not tolerate his intemperate habits, but who was willing again to live with him if he reformed. As he did not do so, his wife 'brought an action for separation in April, 1895, at which time testator went to Hew Jersey and thence to Rockland County, where he died in October, 1895. Although a will, not holographic, made by him in April, 1895, described him as residing in the city of Hew York, his attorney who drew the will was not particularly instructed to so describe him, nor was testator’s attention particularly called thereto, although he compared the will with a rough draft thereof. On the other hand, two assignments of a trust fund executed by decedent at the same time, and two affidavits verified by testator, described testator as of Piermont, Hew York, the affidavits further alleging that Piermont was his permanent residence. Held, that testator’s residence for the purpose of jurisdiction on his estate, was Piermont, and not Hew York City. (Matter of Brant, 30 Misc. 14, 62 N. Y. Supp. [96 St. Rep.] 997, citing Dupuy v. Wurtz, 53 N. Y. 556; Hart v. Kip, 148 N. Y. 306, 42 N. E. 712; In re Stover, 4 Red. Sur. 82, 85.)

Although testatrix lived continuously in France and Switzerland and in traveling in Europe from 1865 till her death in Prance in 189V, except for one year (1878-9), when she came to Hew York, held,, that as she had not intentionally relinquished her residence in Hew York State, the court here had jurisdiction to admit her will (executed in accordance with the laws of this State) to probate, notwithstanding her lengthened residence abroad. (Matter of Cleveland, 28 Misc. 269, 59 N. Y. Supp. [93 St. Rep.] 985.)

Degree of Proof.

It was held in Cruger v. Phelps, 21 Misc. 252, 47 N. Y. Supp. (81 St. Rep.) 61, that a change of domicil to a foreign country should only be established by the clearest'proof, especially when the property interests and the residence of the beneficiaries, etc., are in this State.

Domicil of a Ward.

When a testator domiciled in Connecticut directed that his daughter should, after his death and during hear minority, reside in Few York under the care of her guardian there, held, that although the daughter, after residing for some time in Few York with her guardian, died in Connecticut, where she was at school, her domicil was in Few York. (Matter of Howard, 52 Barb. 294.)

Although a mother, after the father’s death, may change her children’s domicil, she loses this right when she marries again. (Brown v. Lynch, 2 Brad. 214.)


source: Caselaw Access Project

author: Coleman, S.

license: Public Domain

text:
      In re Gagan's Will.

      (Surrogate’s Court, Orange County,

      Filed June 8, 1892.)
    1. Witness—Code Civ. Pro. sec. 829.
    A witness, who is an executor, is not an interested party within meaning of Code Civ. Pro. 829, in proceedings to probate a will.
    2. Attorney as subscribing witness—Competency.
    An attorney who draws, and is a subscribing witness to, a will, may testify as to its preparation and execution under amendment to Code Civ. Pro. sec. 836 of 1892, which was declaratory of the law as it then stood.
    3. Statute—When not unconstitutional.
    Amendment of 1892 to Code Civ. Pro. see. 836, enabling an attorney who draws a will and is also a subscribing witness thereto, to testify as to its preparation and execution, is not, although retrospective, unconstitutional, as interfering with vested rights, as the statute under which the right, if any, was claimed was repealed by the amendment.

      Probate of will of Henry Gagan, deceased. Granted.
    Howard Thornton, for executors; E. A. Brewster, for contestant; J. L. Strahan, special guardian for an infant contestant.
   Coleman, S.

The objection to the testimony of the witness

Thornton is not well taken. The testimony is objected to’, first, because the witness is named in the will as an executor, and, not having renounced such appointment, is an interested party, within the meaning of section 829 of the Code. Loder v. Whelpley, 111 N. Y. 239, 18 N. E. Rep. 874, is cited as authority in support of this claim. That ease only decides that an executor who is also a legatee may release his legacy, and then be a competent witness in probate proceedings, although he has not- renounced his appointment; following In re Wilson, 103 N. Y. 374, 8 N. E. Rep. 731, which originated in this court

This testimony is also1 objected to because it discloses communications made by the deceased to the witness, who was his. attorney, in the course of professional employment. Code Civil Pro. section 835. In Re Coleman, 111 N. Y. 220, 19 N. E. Rep. 71, it was held that the testator waived, as he might do under section 836, the pledge of secrecy imposed by this statute at the time he requested his lawyer to’ become a witness to the will. The legislature, however, afterwards, in 1891, by an amendment to section 836, provided that the waiver must be made on the trial or examination. This will was executed January 29, 1892, and the .testator died February 21, 1892. The proceedings for the probate of the will were commenced April 14, 1892, and the witness Thornton was examined therein May 26, 1892. The legislature, by another amendment to section 836, which took effect May 12, 1892, provided that “nothing herein contained shall be construed to disqualify an attorney, on the probate of a will heretofore executed, * * * from becoming a witness as to its preparation and execution, in case such attorney is one of the subscribing witnesses.” So' that, the admission of the testimony of this witness was by legislative

sanction, and also; properly, independently of tlie statute, for I think the statute was declaratory of the law as it then stood. I am not aware that it had been so declared in the higher courts,, but in this court it has been held, since the amendment of 1891, that the testator, by asking his attorney to become a witness to his will, not- only waived the pledge of secrecy imposed by the statute, but thereby removed and dissolved the confidential relation of attorney and client existing between them, so far as-the execution of the will was concerned. This view of the law is a fair conclusion to be drawn from the argument of the court' in Re Coleman, supra, notwithstanding the statement there made that, except for the waiving having been made, the testimony would not have been admissible. See, also, Rosseau v. Bleau, 131 N. Y. 177, 183, 30 N. E. Rep. 52. If this is a correct view of the law, then it is not important whether the amendment of 1892 is unconstitutional, as urged on behalf of the contestants, because of interfering with vested rights. However, I am of the opinion that this amendment is not open to this objection. This doctrine does not apply to remedial statutes; which may be of a retrospective nature, provided they do not impair contracts or disturb absolute vested rights, 1 Kent Comm. 455; Potter’s Dwar. St. p. 167. The right, if any, of the contestants to object to1 the testimony under consideration depends upon a statute, and such right was lost by the passage of the amendment, which amounted to a repeal of the statute under which they claim the right. Miller’s Case, 1 W. Bl. 451; Rex v. Justices of the Peace, 3 Burr. 1456; Muggs v. Hunt, 4 Bing. 212, 12 Moore, 357.

Will admitted to probate.


author: Lansing, S.

text:
      In re Filley’s Estate.

      (Surrogate’s Court, Rensselaer County,

      Filed June, 1892.)
    1. Surrosate’s Courts—Order to show cause—Practice.
    Although section 780, Code Civil Procedure, providing for shortening the time for notice of motion to less than eight days, by an order to
    show cause, is not directly made applicable to the Surrogate’s Court, the practice is well settled that the Surrogate’s Court may employ an order to show cause to shorten time of notice.
    2. Bond of executor—When time to file it mat be extended.
    The surrogate ha.s no authority to extend, as a matter of favor, the time of an executor to file his bond under Code Civ. Pro. sec. 2687, beyond the five days therein provided, yet he may, under Code Civ. Pro. secs. 724, 2538, relieve a party from an order taken against him when he can show it occurred through mistake, inadvertence, or excusable negligence, and the same relief may be obtained under Code Civ. Pro. see. 2481, subd. 6, for fraud, newly discovered evidence, clerical error, or other sufficient cause.
    3. Same—Newly discovered evidence.
    A decree having been made, under Code Civ. Pro. sec. 2687, requiring an executor to give bond within five days, it will not be reopened under Code Civ. Pro. see. 2481, subd. 6, on the ground of the alleged newly discovered evidence that real estate which the' executor on the application for the bond, alleged to be of less value than stated, and in respect of which he subsequently furnished proof that it was, upon the assumption that it belonged to testator at the time of his death, of a certain value, had been really conveyed by the decedent to the executor, who conveyed it to another, when such facts were obviously known to the executor at the time of the application.
    4. Same—Extent of executor’s liability.
    The court may require a bond from an executor covering property alleged to have been fraudulently conveyed by his decedent.
    5. Deed—Delivery.
    The fact that a deed from a testator to his son, who is also his executor, is in possession of latter, is not evidence of delivery, as the executor might have come into possession of the deed in his character as executor, especially when there is an absence of any fact to support the presumption of delivery beyond the bare possession by the executor, and there is no proof of prior negotiations upon the subject of transfer, but there is proof that he was, at his death, in possession of the property.
    A decree having been made on the petition of a creditor of Marcus L. Filley, deceased, requiring the executor to give a penal bond in the sum of $32,000 or, in default, be removed from his office, the executor, Marcus L. Filley, Jr., made a motion requiring the creditor, Horace Staples, to show cause why the penalty should not be reduced to $8,000. Denied.
    R. A. Parmenter, for executor; Henry A. King, for creditor.
   Lansing, S.

The first question for examination is the objection that section 780, Code Civil Pro-., which provides for shortening the time for notice of motion to less than eight days by an order to show cause, etc., is not made applicable to the Surrogate’s Court; and subdivisions 4, 6, section 3347, of the Code, are cited in support of the position. I am inclined to think that section 780 is not directly made applicable to the Surrogate’s Court. This section contains the general Code provisions upon the subject of time of notice of motion, and provides it shall be eight days, unless, etc. If the section is not applicable to tire Surrogate’s Court, then, in the absence of any other provision (and I have been able to find none), a notice of motion in this court could be made without special limit as to time of service of notice, etc. But, in the absence of such provision, perhaps subdivision 11 of section 2481 would apply, which provides, in effect, that where jurisdiction is given in any matter to the Surrogate’s Court, and the practice is not prescribed, it shall proceed “according to the course and practice of a court having by common law jurisdiction of such matters.” But, whatever the warrant for the practice of employing an order to show cause to shorten time of notice, the practice is well settled in Surrogate’s Courts to employ it, and it has been so employed both before and since the adoption of the new Code. Redfield, in his work on Surrogate Practice (4th ed.), p. 57, says: “The proceeding to vacate a decree under section 2481,. subd. 6 [where this application is unquestionably made], iimproperly initiated by a notice of motion or order to show cause.” See, also, Cluff v. Tower, 3 Dem. Sur. 253. For the purposes of this application I shall hold the practice proper.

I am satisfied that the next objection of the creditor, that the Surrogate has no authority to extend the time of the executor to file his bond beyond the five days provided in the order, is technically well founded. But, while the surrogate may not extend the five days fixed by section 2687 in which to file bond to six or ten days, he may, in a proper case, under Code, sections 724, 2538, relieve a party from an order taken against him when he can show it-occurred through “mistake, inadvertence, or excusable negligence,” etc.; and the same relief may be obtained in certain cases hereafter mentioned under section 2481, subd. 6, above cited. But under either section relief must be obtained, if at all, not as a matter of favor, but for the specific reasons or upon the grounds provided in the statute. This disposes of the preliminary objections, and brings us to' an examination of the question whether the executor has presented a case authorizing the surrogate to open or modify the decree made herein on the 7th day of May, 1892, adjudging the executor’s pecuniary circumstances to be such as not to afford adequate security for the due administration of the estate of the deceased, and requiring him to file a bond in the penal sum of $32,000 within five days, or, in default thereof, that his letters testamentary be revoked. Section 2687 of the Code of Civil Procedure provides that if, upon the return of the citation issued under section 2686, the objections to the executor, or any of them, mentioned in section 2685, “are established to the surrogate’s satisfaction, he must make a decree revoking the letters issued to the person complained of. But the surrogate may, in his discretion, * * * allow letters to remain unrevoked * * * [subdivision 3] where the case is within subdivision 5 of that section” (2685)— that is, where the executor is pecuniarily irresponsible—“if the executor gives within a reasonable time, not exceeding five days. the bond prescribed in article first of this title.” The surrogate appears to have no discretion as to time in which to file a bond in the first instance, if he finds the objection sustained.

The direction of toe surrogate of the 10th of Hay, 1892, was a decree (section 2687, supra), and this decree was the deliberate and formally expressed judgment of a court having entire jurisdiction both of the person and subject-matter involved. The decree adjudged (1) that the circumstances of toe executor did not afford adequate security to the creditors for the due administration of the estate; and, (2) that the value of the property belonging to the estate at toe time of testator’s death was $16,000. I am satisfied that this decree must remain, unless appealed from, or unless the case can be brought within section 2481, subd. 6, of the Code, which provides that this court may open, vacate, or modify its decree or order and grant a new hearing for “fraud, newly discovered evidence, clerical error, or other sufficient cause,” but with the qualification that “the powers conferred by this subdivision must, be exercised only in like cases, and in the same manner, as a court of record and of general jurisdiction exercises the same powers.” This application must rest upon the ground of “newly discovered evidence.” The ground “other sufficient cause” will not avail to support an application for the introduction of evidence under this section, where its only claim for consideration, in the nature of things, is that it is newly discovered. How, what are the facts appearing on this application as to- toe ground of newly discovered evidence % The creditor alleges in his petition the ownership of the property (the mansion house in Lansinghurgh) in the testator, and its value. A postponement of several days was sought by Hr. Tilley, the executor, for the purpose of submitting to the court proof in regard to the value of the same real estate (he alleging it to be of less value). Proof was subsequently furnished by the executor (without any denial of toe fact, and upon the assumption that the real estate in question belonged to the testator at the time of his death) that it was of toe value of $9,000. The fact, if fact it be, that this real estate had really been conveyed to Marcus L. Filley, executor, by his father, prior to his decease), and had been, by him individually conveyed since the institution of this proceeding to the alleged grantee, Garter, was well known to Mr. Filley, and known prior to the time the decree was made, and the fact was obviously suppressed by him. Clearly it is not a case of newly discovered evidence. (1) The opening of a surrogate’s decree, formally and lawfully made, requires the exercise of the soundest discretion. (2) It should only be done in extraordinary cases, and where errors are plain, palpable, and beyond any question. Decker v. Elwood, 3 Thomp. & C. 48; Dedf. Law & Pr. Sur. Cts. (4th ed.) p. 58, and cases cited. It is well settled that a motion to open an order or decree in Surrogate’s Court should be' entertained only on newly discovered facts, showing that it was made without jurisdiction or through inadvertence, mistake or fraud. Janssen v. Wemple, 3 Redf. 229. “Where a party has had his day in court, he must show that it was not his fault that he did not improve it, before he can get another day on the same matter.” In re Estate of O’Neil, 46 Hun, 501. The discovery of further evidence in an account book, which was in possession of the party pending the litigation, prior to the decree, cannot be deemed newly discovered evidence upon which the decree should be opened. Olmsted v. Long, 4 Dem. Sur. 44. See, also, In re Kranz, 41 Hun, 465; In re Tilden, 98 N. Y. 434; In re Hawley, 100 N. Y. 206, 3 N. E. Rep. 68. I am1 satisfied from an examination of the authorities that the surrogate is utterly without power to vacate or modify the decree made herein. Orders and decrees in Surrogates’ Courts are placed upon precisely the same footing as those in other courts of record, and the power conferred to open or modify “must be exercised only in like cases as a court of record and of general jurisdiction exercises the same power.” It will hardly be claimed that the facts appearing upon this application would warrant the granting of a new trial in the Supreme Court, on the ground of newly discovered evidence. There is, therefore, no ground stated in the moving papers which would warrant a new hearing, or authorize a modification of the order or decree granted in this matter, and I can conceive of none which could he added from the facts disclosed. The executor well knew the fact, the introduction of which he now seeks as a ground for the modification of the decree, before the application was made. Indeed, I am sure he has not been surprised or misled, for it was stated upon the hearing that the bond in the amount directed would have been given if the executor had been able to do so. These views lead to a denial of the motion for a new hearing or for a modification of the bond.

Two other questions involving the merits were discussed upon the motion, which, in the view I have taken, are not necessarily involved in the decision of this motion, yet, as the result of my examination of these questions tends to support the conclusion I have reached upon the more technical ground, it may not bo improper to discuss them briefly.

First. As to the question of requiring a bond covering property alleged to be fraudulently conveyed. I am satisfied that while the decision in Peck v. Peck, 3 Dem. Sur. 548, holding “that the Surrogate’s Court, in fixing the bond of the executor, should not take into consideration any property of the title to which the testator or intestate had divested himself during his lifetime, whether a transfer was procured by fraud or otherwise,” states the general rule, yet there is no such hard and fast rule upon the subject, since in some cases the main object in taking out letters is for the purpose of recovering property fraudulently conveyed. Laws 1858, ch. 314, sec. 1, as amended, Laws 1889, ch. 487. “And [it is held] in any case an executor is chargeable with breach of trust for neglect in instituting any action or proceeding necessary to recover assets fraudulently disposed of by his decedent.” In re Cornell, 110 N. Y. 351, 18 N. E. Rep. 142; Hangen v. Hachemeister, 114 N. Y. 566, 21 N. E. Rep. 1046. In such cases, at least, bonds should be required covering the amount of probable recovery, and the statute seems to contemplate the exaction of the same by the proper court.

Second. Upon the remaining question, whether the said real estate belonged to testator at his decease, it would seem, under the authorities (aside from all considerations pointing to a fraudulent conveyance), that the proof offered comes far short of showing a transfer of the legal title from the testator before his death. The deeds in question are not recorded. A deed, to convey title, must not only be duly executed, but must be ■delivered. The fact that the deed from the father, the testator, to the son, is in the possession of the son, who is his executor, does not furnish the necessary proof that it was delivered to the .son as grantee during the lifetime of his father, because, if not delivered, he, as executor, would be likely to come into possession of it. In fine, therefore, the absence of .any proof of prior negotiations upon tire subject of transfer, and the absence of any fact to support the presumption of delivery beyond the bare possession of the deed by the executor after death of testator, with the added fact that M. L. Eilley, Sr., was at the time' ■of his decease in possession of the property, would seem to reouire something further to establish that said instrument was delivered by the grantor with intent to convey title prior to his •death. Knolls v. Barnhart, 71 N. Y. 474; Gifford v. Corrigan, 105 N. Y. 223, 226, 11 N. E. Rep. 498.

But, as I have before stated, a decision of the two questions last above discussed are not necessarily involved in the decision of this motion, since I am compelled to hold, under the authorities, that the presentation of the deeds upon this application ■cannot in any just sense be termed “newly discovered “evidence,” so that no ground appears which will warrant the opening or modification of the decree. Motion to vacate or modify the decree of May 10, 1892, denied, with $10 costs of motion, and, upon filing proof that the executor failed to file his bond as required by said decree, a decree may be entered vacating the letters testamentary heretofore issued to said executor.


text:
      In re Jackson's Will.

      (Surrogate’s Court, Orange County,

      Filed June 1, 1892.)
    1. Legacy—Uncertainty.
    A legacy of $1,000 to Thaddeus J. Boyd provided he will in the future write his name T. Jackson Boyd, “but if he refuses so to do I only give him $500, and the balance, $500, to revert back to my residuary estate,” is not void for uncertainty, but is valid, and is vested, subject to be defeated by a breach of the condition.
    2. Same—Clause of forfeiture.
    A condition in a will that “Should any person or society be dissatisfied with any gift herein made, then, in that ease, said gift shall be wholly withheld,” is so broad and sweeping that it could not be enforced, for it could not be ascertained whether it has been violated, and a legatee who files objections to probate of the will, for insufficiency of execution, and also as to the validity of a number of its provisions, does not thereby forfeit his legacy.
    3. Same—Bequest for pious and charitable purposes—Uncertainty of
    BENEFICIARIES.
    A bequest of residuary real and personal estate to executors, “to he expended by them for benevolent and charitable purposes, as they, or the survivor of them, shall, in their or his good judgment, deem wise and best for the promotion of Christianity and the welfare of mankind in the world,” is void, there being no certain designated beneficiary.
    Probate of will of Theodore L. Jackson, deceased. Granted.
    J. M. Wilkin, for executors; Greene & Bedell, for Theodore L. Boyd, contestant; G. O. Hulse, special guardian.
   Coleman, S.

The contest in this matter has finally narrowed down to three questions: First-, the validity of the legacy of Thaddeus J. Boyd; second, whether the opposition to- the probate of the will, made by Theodore L. Boyd, invalidated the legacy given him by the will; third, as to the validity of the forty-ninth, or residuary, clause of the will.

With reference to the first of these questions, the language of the will is: “I give and bequeath to Thaddeus J. Boyd the sum of one thousand dollars, provided he will -write his name in all future time, T. Jackson Boyd ; but if he refuses so to do, them I only give him five hundred dollars, and the balance, or $500, to revert back to my residuary estate.” It is alleged that the gift is void for uncertainty; that the condition imposed by the testator is dependent upon the whim or caprice of the beneficiary, and cannot, therefore, be ascertained or judicially determined. It is my opinion, however, that the gift is valid, and is vested, subject to be defeated by a breach of the condition, which is a condition subsequent, and one which may be fully complied with. There was some evidence upon the hearing thar the legatee has, so far, complied with this condition. The executors should ascertain, however, before paying over the legacy,, that the legatee bas met the requirements imposed by the testator. Dustan v. Dustan, 1 Paige, 509. In the event of a subsequent breach, the parties next entitled have their action to recover. Davies v. Lowndes, 2 Scott, 71; Taylor v. Mason, 3 Wheat. 325; Luscombe v. Yates, 5 Barn. & Ald. 544; Tilden v. Tilden, 13 Gray, 103.

And as to the second, the testator’s will contains the following: “Should any person or society be dissatisfied with any gift herein made, then, in that case, said gift shall be wholly withheld.” Theodore L. Boyd, who is given a legacy of $200,. has filed objections to the probate of the will as a whole, for insufficiency of execution, and also as to the validity of a number of its provisions, particularly of the residuary clause, and a contested probate has been had by reason of such objections. The language of the will relating to this subject is so indefinite and uncertain that the testator’s intention' cannot, with any certainty, be ascertained. Apparently any dissatisfaction as to any gift therein made is sufficient to debar a legatee from taking a legacy. A condition so broad and sweeping, if intended, could not be enforced, for it could not be ascertained whether it has been violated. I am of opinion that the contestant has not forfeited his legacy. Jackson v. Westerfield, 61 How. Pr. 399 (407), and cases cited.

Third. After making some forty-odd items in his will, the testator finally provides as follows: “All the rest, residue, and remainder of my property and estate, of' every name and nature whatsoever, and wheresoever situate and placed, I give 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 and best for the promotion of Christianity and the welfare of mankind in the world.” This is clearly void, there being no certain designated beneficiary, and as to such residue the testator died intestate. Tilden v. Green (N. Y. App.), 28 N. E. Rep. 880.

Will admitted to probate, except the residuary clause.


author: Coffin, S.

text:
    Lang v. Howell.

      (Surrogate’s Court,, Westchester County,

      Filed January, 1892.)
    Executor—When legatee overpaid.
    On the judicial settlement of his accounts, an executor cannot obtain a decree directing a residuary legatee to whom the executor has knowingly paid the entire residue, to refund the amount of his expenses, and a debt due him, and his commissions, and costs of accounting, but must seek for relief elsewhere.
    Judicial settlement of accounts of William Lang, as executor of Eliza Stringer, deceased.
    Arthur T. Hoffman, for executor; H. T. Dykman, for Cecilia A. Howell, a legatee, and others.
   Coffin, S.

The portion of the will supposed to be especially bearing upon the question as to what the decree should provide, under the circumstances, appears to be as follows: “All the remainder of my possessions I give to my nearest relative, Cecilia A. Howell; at her death the property to he divided equally between her three daughters.” The rule, as I understand it, is that, where the gift to the first taker is absolute in its terms, the gift will be deemed an absolute one, and a gift over would be void for repugnancy. 2 Jarm. Wills, 53; Bell v. Warn, 4 Hun, 406; 2 Washb. Real Prop. ch. 7, sec. 5, subd. 11; Merrill v. Emery, 10 Pick. 507, 512. However this may be, as there was no trust created by the will, and no debts, as alleged, Mrs. Howell could receive the legacy, even if it were for life only; and it was in the discretion of the executor, and for his protection, to exact from her a proper receipt or security. The surrogate has no authority to require from a life tenant security for the remaindermen after the legacy has been paid, even if ho can before. See In re Shipman (Sup.) 6 N. Y. Supp. 276. That may be done by some court of general jurisdiction on the application of a remainderman, where the circumstances seem to require it. Id.; Fernbacher v. Fernbacher, 4 Dem. Sur. 227, and cases cited; Redf. Pr. (4th ed.) 597, and cases cited. But the disposal of the case does not- wholly depend upon the determination of these questions. The executor, Lang, seems to have had the sole management of the estate. He, in his account of proceedings filed, charges himself with the whole amount of the inventory, and then proceeds to credit himself, in detail, with the legacies paid; such legacies exactly amounting to the sum of the inventory. The daughters of Mrs. Howell were of full age, had been cited, and made no objection to the credit claimed for the legacy he had paid to their mother. He states in schedule A “that all the property of Eliza Stringer was given or devised as hereinafter stated,” and then says: ‘“There were no debts, except the money due from the savings ■banks, stated in said inventory, which were delivered to the . legatee, Cecilia A. Howell, by me.” Then, in schedule B, he states that “all the articles mentioned in said inventory were delivered to the legatees” (among which were the bank pass books), of which he received in value $265.45, and his daughter $40. Besides this, the executor was, by the will, made devisee of a part of the real estate for the term of five years. The value of the personal estate so delivered to Mrs. Howell as legatee appears to have been about $6,200. She was undoubtedly right in receiving it, and, as it was paid to her by him with, of course, a full knowledge of his actual or pretended claim against the deceased, this court has no power to compel her to refund any part of it in order to satisfy his claim, his commissions, costs, and expenses of the accounting or the like. Such relief as he claims must be sought in some other forum. It would be an unprecedented proceeding, where the executor had paid out all of the assets to the legatees,-to decree that they should refund sufficient, to pay his commissions and expenses of accounting; and equally so to satisfy any other* claim of his. Adair v. Brimmer, 74 N. Y. 539-558; In re Underhill (Surr.), 9 N. Y. Supp. 457, affirmed by the General Term of second department, 6 N. Y. Supp. 133, and by the Court of Appeals in 117 N. Y. 471, 22 N. E. Rep. 1120. In the last case the court says: “When it is determined that an overpayment has been made by the executor, in legal contemplation, the excess is in his hands.” Although executrix, Mrs. Howell’s position as legatee is the same as that of any other legatee, and the effort of the executor is, in effect, to recover back a part of the legacy he claims to have paid her in excess of what he should have paid. For this purpose he must resort to some other forum, as already stated. The decree should direct that the executor should be awarded the several sums as fixed and claimed by him, to be paid, however, out of any assets remaining in his hands, or that may hereafter be received by him.


author: Davie, S.

text:
      In re Beach's Estate.
    (1 Misc. Rep. 27.)

      (Surrogate’s Court, Cattaraugus County,

      Filed September, 1892.)
    1. Will—Whether life estate or gift absolute intended.
    Testator gave and bequeathed to his wife ‘fall of my personal property that I shall be possessed of at the time of my death, and all of my household goods, and the use of my real estate during her natural life. * * * (2) To my daughter M. the organ that is now at my
    house; after the death of my wife,' I give (3) to my son B. the sum of $500; (4) to my son W. the sum of $500.” Held, that the widow took but a life estate in the personal property, excluding the organ.
    2. Will—Irreconcilable provisions.
    As in such will the gifts of the personal estate to the wife and the organ to the daughter were irreconcilable, the daughter took the organ immediately and absolutely.
    3. Will—Construction.
    The words “after the death of my wife” should be read in connection with each of the following bequests, and therefore the two $500 legacies became payable after the death of the widow.
    4. Allowance for monument.
    As the estate amounted to $8,000, the rights of creditors were not interfered with, the executor had consulted with several of the legatees, and no one objected to the expenditure but the widow, and the monument was nearly ready for delivery, held, that although the cost of the monument ($400) reached a limit held to be unreasonable, it would be allowed to the executor under the circumstances.
    5. Witness—When competent under Code Civ. Pro. sec. 829.
    Although an executor is not a competent witness in the first instance, to testify to transactions between himself and his decedent as to a partial payment upon a joint note of decedent and the - executor, yet, having been examined, and contestant having proved by him sufficient to establish his individual liability, held, that the executor, might testify as to the entire transaction so as to relieve, himself of such liability.
    6. Executor’s accounts—Joint note of decedent and executor.
    Decedent’s estate is liable for the balance due on such a note, when it appeared the decedent gave the proceeds to the executor, his son, to buy a team, and intended to pay it himself, and that money paid and indorsed on the note was furnished by decedent.
    7. Same—Employment of cleric by executor.
    If an executor employs another to transact for him the usual and ordinary duties of his trust, the expense of such cannot be charged to the estate.
    8. Same—Executor’s liability for loss on resale.
    An executor is liable for loss on a resale of personal property, when, although the purchaser obtained the goods, he did not pay cash, or give a note as required by the terms of sale, and was allowed by the executor, who took a mortgage on the articles sold, to secure a debt due to himself, to retain possession of the property for seven months.
    Judicial settlement of account of executor of Isaac H. Beach, deceased.
    A. & G. E. Spring, for executor; William H. Ticknor, for contestant.
   Davie, S.

This is a proceeding for the judicial settlement of the accounts of the executor of the will of Isaac H. Beach, who died April 23, 1891, leaving him surviving his widow and six children, and real estate of the value of $6,000, and personal property to the amount of about $2,000. Such settlement necessitates a construction of certain portions of the will, and the widow files objections to various items of the account. ■ The will is very in artistically drawn, and it is no easy task to determine the actual intent of the testator therefrom. The disposing portion of said will is in the following form:

“First, after all my lawful debts are paid and discharged, I give and bequeath to my wife, Hannah M. Beach, all of my personal property that I shall he possessed of at the time of my death, and all of my household goods, and the use of my real estate during her natural life. But I will that she shall keep the buildings on said real estate in good repair, and pay all taxes on the same. (2) To my daughter Mabel L. Beach, the organ that is now at my house, after the death of my wife, I give. (3) To my son Benjamin 0. Beach, the sum of $500. (4) To my son Willey E. Beach the sum of $500. ■ (5) The balance of all my property, of every kind, name and nature, I will shall be equally divided, to share and share alike,, between all of my six children, namely, Benjamin 0. Beach, Willey E. Beach, Rosetta E. Ryder, Clara E. Cagwin, Ella L. Vedder, Mabel L. Beach.”

The questions raised are: First, does the widow take the personal estate absolutely, or simply a life estate therein? and, second, when are the two $500 legacies payable ? ■

Various rules of construction have been formulated, but the chief solicitude of courts, in construing wills, is to ascertain the actual intent of the testator, and carry the same into effect as far as possible. The testator in this case was worth about $1,000 at the time of his marriage with the contestant. They lived together as husband and wife for many years, and the balance of his estate was accumulated by their joint industry and frugality. Contestant is .now 57 years of age. Hence it would seem that the testator would very naturally desire, in the first place, to make some certain and ample provision for the maintenance of his wife during the time she might survive him, hut to do so in such a manner as not to jeopardize the rights of his children. How could such a result be better accomplished than by giving the wife the use of the entire estate during her life, with provisions for its equitable distribution among his children after her death ? The evidence shows that the annual rental value of the real estate is $350. The income from the personal estate would increase this amount somewhat-. This would seem to he a very moderate provision for the maintenance of the widow. Such a disposition of the personal ’estate, however, would seem to meet the approval of a careful, prudent man, like testator, rather than an absolute gift of the same to her, thereby endangering the rights of the children through the possible improvidence or lack of prudence incident to the advanced age of the widow. Whether the provisions of this will are susceptible of the construction suggested depends entirely upon the use made of the term “during her natural life”—whether such term is held to relate to the entire preceding sentence, or simply to the single clause; “and the use of my real estate.” Had the words “the use of” been omitted from such clause, the ordinary interpretation of the entire sentence would make the words of limitation “during her natural life” applicable to the entire bequest. Areson v. Areson, 3 Denio, 458; Van Allen v. Mooers, 5 Barb. 110; Carpenter v. Carpenter, 2 Dem. Sur. 534. It is urged on the part of the contestant that the words “the use of,” coupled with the disposition of the real estate and not with that of the personal property, indicates a design on the part of the testator to convey a greater estate in the latter than in the former; that, had he intended to limit the bequest of the personal property in the same manner as the real estate, he would have used the same words of limitation, “the use of,” in both instances; that this difference in phraseology takes the case out of the operation of the rule of interpretation above cited. While fully recognizing the force of this suggestion, yet, in view of all the attendant circumstances, the extent of the estate, the habits and mode of .life of the contestant, and the character of the other bequests in said will, I am of the opinion, and must hold, that it was tire intention of the testator to give to the widow simply a life interest in said personal estate.

The next question relates to the bequest of the organ to the daughter Mabel. The preceding portions of the will dispose, in terms, “of all the personal property and household furniture.” This would, of course, cany the organ, were it not for the subsequent specific bequest thereof to the daughter. The two provisions of the will are absolutely irreconcilable, so far as the disposition of the organ is concerned. This being the case, the latter provision must prevail. Van Nostrand v. Moore, 52 N. Y. 12; Chrystie v. Phyfe, 19 N. Y. 345. Consequently the daughter takes the organ absolutely, and is entitled to the immediate possession thereof.

The conclusion already an’ived at necessarily determines the remaining question, as to the time of payment of the two $500' legacies. The time of payment is dependent entirely upon the use made of the expression, “after the death of my wife.” It is urged on part of these legatees that this clause should be read in connection with the bequest of the organ, but I cannot adopt such view, but must hold that such clause is to be read in connection with, and as a part of, each of the following bequests. There is nothing in the will or surrounding circumstances indicating an intent on testator’s part to make these legacies immediately payable out of the real estate; and, having given the widow the use of the personal estate during her lifetime, it could not be available for payment of legacies or distribution until the termination of her life estate. In my judgment the only reasonable construction which can be given to this will is to hold that the widow takes a life estate in all the personal property, except the organ; that the organ passes to the daughter absolutely; that upon the death of the widow the two $500 legacies become payable, and the residuum subject to distribution.

The account filed shows that the executor has entered into an agreement, in writing, for the expenditure of $400 for a monument to be placed at the grave of the testator. The widow objects to this expenditure as unreasonable and excessive. Of course, no arbitrary rule has been or can be laid down, establishing the question of reasonableness of funeral expenses. Each case must be determined from its own particular circumstances. A reasonable expenditure for a tombstone is regarded as a legitimate item of funeral expenses to be allowed to the executor upon his accounting. Ferrin v. Myrick, 41 N. Y. 315; Tickel v. Quinn, 1 Dem. Sur. 425. So the only question in this case is whether the sum named was reasonable or not. In one case it was held that an expenditure of $500 for such purpose, where the estate did not exceed $8,000, was unreasonable; and was not allowed against the heirs. Owens v. Bloomer, 14 Hun, 296. In case of an estate of $3,600, it was held that an expenditure of $250 was not unreasonable. In re Erlacher, 3 Redf. Sur. 8. In case of an estate of $1,200, that $150 was a reasonable expenditure. Emans v. Hickman, 12 Hun, 425. While the expenditure made by the executor in this case would seem to reach the limit, yet, in consideration of the fact that the estate amounts to $8,000; that the rights of creditors are not impaired by the expenditure; that the executor consulted with several of the legatees before making the contract, and no objection is made to such expenditure by any one but the widow; that the executor, as such, evidently in good faith, has contracted for the monument; that the monument itself has been prepared, and is now nearly ready for delivery—I am unable to see how the interests of this estate are to he subserved by holding that this expenditure was unwarranted. In re Laird, 42 Hun, 136.

Contestant also objects to the payment of a certain note by the executor to one D. P. Howes, to the amount of $152.65, upon the grounds: First, that the right of action thereon against the testator was barred by the statute' of limitations bofore his death; and, second, that the debt for which said note was originally given was that of the executor himself. The contestant called and examined the executor as a witness, and ■ established the fact by him that such note was originally given for his individual benefit, and that the indorsements thereon were for moneys which he had himself paid. The note itself bears date August 8, 1881, and the last indorsement thereon is of the date of March 28, 1890 ; so that, if said note was not outlawed, it is in consequence of the partial payments made thereon. This state of facts, unexplained, would show sucli payment by the executor to' have been unauthorized. A partial payment by one of the makers of this note, without the consent or authority of tire other, would not prevent the statute running against the one not- paying. How, the executor would not have been a competent witness, in the first instance, to testify to the transaction which took place between himself and deceased regarding such payment, or the original inception of the note (section 829, Code Civil Pro.) ; hut the contestant, having examined the executor as a witness, and proved by him a sufficient portion of said transactions to establish his individual liability, removed such disability, permitting him to testify to the entire transaction for the purpose of relieving himself of such disability. (Nay v. Curley, 113 N. Y. 575, 21 N. E. Rep. 698; Davis v. Gallagher, 55 Hun, 593, 9 N. Y. Supp. 11). The further examination of the executor shows, not only that the money paid and indorsed on the note was furnished by the testator with the express instruction that it should be so used, but also that, in the making of the note, originally, testator gave the proceeds thereof to the executor to aid him in buying a team; that testator in fact gave the note to the son, and designed to pay the same himself. These facts justify the payment of the note out- of the estate.

Contestant also- objects to the payment of the item of $24 to Mr. Whiting. A portion of this sum is a proper charge against the estate-. The appraiser’s fees for two- days at $3 per day is a proper and reasonable charge. The witness fees of Mr. Whiting and wife, from their residence to Franklinville, to attend the probate of the will of deceased, amount to $3.76, which is also a proper charge. The balance of said item appears to be for services purely clerical in their character, and such as the executor could and should have performed himself. If the executor saw 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. Hall v. Campbell, 1 Dem. Sur. 415; In re Carman, 3 Redf. Sur. 46; Ward v. Ford, 4 Redf. Sur. 34.

The remaining question arises out of the following facts: On the 10th day of December, 1891, the executor sold certain personal property belonging to the estate at public auction. The terms of the sale were cash, or good, indorsed paper running 10 months. At the sale certain property was sold to one Robinson; among other tilings, one horse, for $41, and one mowing machine, for $28. The executor himself hid off one spring wagon for $38, and on the same day sold it to Robinson. On the day after the sale, the executor prepared a note for the amount of Bobinson’s purchase, and requested him to sign it, and furnish an indorser. Bobinson did not do so. A short time thereafter the executor again presented the note to Bobinson, who then .refused to furnish an indorser. At the same time Bobinson was indebted to the executor personally, to the amount of $125; and on December 23, 1891, the executor took a chattel mortgage upon this property, which Bobinson had so purchased, to secure his own individual debt. After Bobinson had refused to give the indorsed note the executor sold his mortgage and claim thereby secured to one Dake. Nothing further appears to have been done in this matter until the executor was cited to show cause why he should not judicially settle his accounts. Thereupon the executor procured Dake to satisfy said mortgage, and to take another upon Bobinson’s crops, and thereupon took the property back from Bobinson, made another public auction, and sold the horse thereat for $25, the mowing machine for $12, and the spring wagon for $28.35, or $41.65 less than the same property sold for at the first sale; and contestant. urges that the executor should be charged with the deficiency. If the executor, immediately upon the refusal of Bobinson to give the indorsed note, had reclaimed and resold the property, he could not have been subject to the imputation or bad faith, nor hcld_ accountable for any deficiency. But permitting said property to remain in Bobinson’s possession until the month of June, 1893; allowing him to use the same, thereby diminishing its value; knowing all the time that Bobinson was irresponsible, yet holding a chattel mortgage upon this identical property to secure his own debt; doing nothing to enforce collection of the claim, or to recover said property—presents an entirely different phase. An executor is bound to exercise active diligence in the management of the estate, and if loss occurs through his negligence, he becomes personally Hablo as for a devastavit. Harrington v. Keteltas, 92 N. Y. 40; Hasbrouck v. Hasbrouck, 27 N. Y. 182. In this case the executor should account for the entire amount said property sold for at the first sale. The account filed should be modified in the particulars suggested, and a decree entered judicially settling the same as so modified.