author: Collier, S.

text:
    In the Matter of the Judicial Settlement of the Estate of John Snyder, Deceased.

      (Surrogates Court, Columbia County,

      Filed November 28, 1891.)
    1. Will—Construction.
    Testator, by his will, made a complete division of his property. By a codicil he gave to his wife and two daughters certain real and personal property in trust to continue his business for three years from his death, or, in their discretion, for five years. He gave authoi'ity to use part of the trust fund to pay the specific legacies, gave instructions as to the management of the business, and for distribution at the termination of the trust, and then authorized his wife “to collect all my interest money and rentals of my property during her lifetime, or until the estate is finally settled, and apply the same to her own use.” The personal estate not embraced in the trust was insufficient to pay the legacies. Seld, that the last provision of the codicil referred to the income and rentals of the trust estate, and did not authorize the widow to take the interest and rentals of the estate not placed in trust.
    2. Same—Trust.
    The trust attempted to be created by the codicil was void, because limited by a period of years, and not upon lives.
    Judicial settlement of the accounts of the executrices and executors under the last will and testament of John Snyder, deceased.
    G. S. Collier, for Mercy Snyder, Lillie E. Gillett and Jennie A. Lent, executrices, and James M. Gillett, executor, and Mercy Snyder, as widow of deceased; A. Frank B. Chace, for trustees; E. R. Harder, for James E. Snyder, one of the executors, and a legatee and devisee under the will of said deceased; Burgess Speed, special guardian for infant legatees.
   Collier, S.

The settlement of the accounts in this matter involves the construction of the last, will and testament, and codicil thereto, of the said deceased. A proper and legal construction must first he determined upon and settled before any decree can he made for settlement.

John Snyder died on or about the 4th day of July, 1889. He left a last will and testament, which bears date December 30, 1885. He made and executed a codicil to said will, which bears date the 12th day of May, 1889. The will and codicil were proven and admitted to probate by the surrogate on the 11th day of July, 1889, and letters testamentary thereon were issued, to Mercy Snyder, Lillie E. Gillett, Jennie A. Lent, James M. Gillett and James E. Snyder, the executrices and executors therein nominated and appointed. By the will of said deceased, dated December 30, 1885, the testator, after making provision for a monument, by the third clause of said will gave and bequeathed to his wife, Mercy Snyder, the sum of $12,000 in cash, and devised to her absolutely his private residence in Yalatie, in tire town of .Kinderhook, and all the lands belonging thereto, containing about eight acres, and also all the personal property attached thereto, such as household furniture,"carpets, beds and bedding, horses, carriages, sleighs, robes, harness, and all the personal property of every description in and about his private residence, and this provision for his wife, in and by the' fourth clause of said will, is declared to be in lieu of her right •of dower.

By the fifth, six and seventh clauses of his will he gives and bequeathes to each of his three children the sum of $8,000, and1 by the eighth clause states that his children and his wife are to have the above sums in cash as soon as practical after his decease. By the ninth clause of his will the balance of his personal property and real estate is to' be appraised, and he directs that it shall be divided equally between his three children, and by the tenth' clause he gives to' each of his grandchildren $400, to be taken out of the real estate before it is divided.

In this plain and simple manner he disposed of his whole estate by his will. But some time after making his will, and on May 12, 1889, the testator made a codicil to said will, and after-reciting the fact of the making of said will, and the fact that in and by it he had given and bequeathed the balance of his personal property and real estate as stated, in the ninth clause of said will, and directing that the codicil should be taken as a part thereof, he proceeds in substance as follows: “To order and declare, give, devise and bequeath to his wife, Mercy Snyder, and his daughters, Lillie E. Grillett and Jennie A. Snyder (now Jennie A. Lent), in trust for the uses and purposes hereinafter named,” certain real estate, describing it, then in use in his business of manufacture and sale of tin-ware, rags, junk, iron, glass, etc., and certain other real’ estate, describing or designating it, also gives, devises and bequeaths to his said trustees, in trust, as aforesaid, for the uses hereinafter mentioned, all his horses, carts, wagons, harness, sleighs, goods, chattels, credits and merchandise, which then was, or shall be in use as a part of the business conducted by him, and also that of the moneys on deposit to his credit, the sum of $3,000 be taken by his trustee or trustees, and used by her or them for the uses and purposes hereinafter mentioned, and as a part, of the trust created by this codicil; and directs his trustee or trustees to- use the property mentioned for the purpose of carrying on the business of the manufacture and sale of tinware, rags, junk, iron, glass, etc., as then conducted by him, for the term of three years from and after his death, or, if in the discretion of his trustees it may be deemed advisable for the best interests of his estate, such business and such trust may be continued until the expiration of five years after his decease; and directs- that his wife,’ Mercy Snyder (one of said trustees named), shall act as sole trustee, with power to sign all checks until the termination of the trust, or until her decease, but in the event of her death before the termination of the trust, then, and in that event, his daughters (the other trustees named) shall act as trustees until the termination thereof, and directs and orders that the property therein mentioned should, upon his decease, be set apart from the residue of his estate for the purpose of carrying on such trust, and his trustees are directed to use no part of his property other than the property therein devised in connection with such business. That all other property of which he might die seized or possessed should be kept separate and apart from such trust estate, and. should vest upon his decease in the legatees named in his said will and testament as tlierein provided. .

Upon the termination of the trust, the trust estate should be disposed of for the payment of any unpaid legacies given by his last will and testament, and the residue and remainder be divided equally between his son, James E. Snyder, and his daughters Lillie E. Gillett and Jennie A. Snyder, now Jennie A. Lent.

And the testator in this same clause of the codicil directs his trustees, in their discretion, to use from his trust estate, before the termination of the trust, such sums of money as they may deem advisable for the payment of the specific legacies given by his will, and the said legacies for which there is not sufficient property outside of such trust estate to pay shall, in the option of the trustees, not be payable until the termination of the trust, and then, following in the same clause, directs his trustees to employ Thomas Garrigan as superintendent of the business created by the trust, and James M. Gillette as assistant, at certain salaries during the period of such trust. Directs that an inventory of the property covered by the trust be made at least once each year, and delivered to his wife. And then, following right on, in this same clause the testator says: “I further authorize and empower my said wife as aforesaid to collect all my interest money and rentals of my property during her life*time or until the estate is finally settled, and apply the same to* her own use.” Such now are the .provisions of the will and codicil which, taken together, stands as the last will and testament of said deceased.

By the account filed it appears that the estate, outside of the property and money so given in trust, amounted to about the sum of $23,678.51, besides certain real estate not given in trust.

And it is claimed by the widow that under the will and codicil she is entitled to the whole income of the estate until the trust estate is finally settled.

And by James E. Snyder that she is only entitled to income and rental until the estate in the hands of the executors should have been finally settled by law. The trustees claim that the widow is entitled to tlic income and rental of the property so placed in trust during her life, but not exceeding the time limited by the trust; all claiming under that clause in said codicil wherein he authorizes and empowers his wife to collect all of his interest moneys and rentals of his property during her lifetime or until the estate is finally settled, and apply the same to her own use.

Now, leaving the question of the validity of the trust out of question, in order to get at the intent and meaning of the clause, we must assume that the testator by his codicil intended to create a valid trust. What the intention of the testator was must be gathered from the will and codicil, and the language used should be so construed as to give effect to the intention of the testator as gathered from the whole will and codicil taken as one instrument.

Now by the will the testator disposed of his whole estate, without any conditions or limitations, except that certain legacies given to his grandchildren were to be taken out of the real estate before it should be divided. At the time this codicil was made the testator had by his will devised to his wife certain real estate and bequeathed to her $12,000, which he declared to be in lieu of dower, and to each of his three children $8,000, and that they were to have the same in cash as soon as practicable after his death. And but for this trust created by the codicil there would have been more than sufficient personal estate to pay all the legacies; and by the ninth clause of his will he directed that the balance of his personal estate should be appraised and equally divided between his three children.

By the codicil he takes or carves out of this real estate certain parcels thereof, and takes out of his personal estate certain personal property and money, and gives, devises and bequeathes the same to his wife and two daughters (all living at the time of his decease), in trust for carrying on the business he, the testator, had during his lifetime successfully conducted. This appears to have been the sole purpose and aim of the testator, and his ■ intention was that the balance of his personal estate should be applied in payment of the legacies to his wife and children as directed in and by his will, and that the balance of the real estate not placed in trust should go as directed by said will equally to his three children, and that the personal estate not placed in trust should, by his executrices and executors, be applied in the proper and legal course of administration to the payment- of his debts and said legacies given by said will.

By the codicil he directs that the -trust property shall be set apart from the- residue of his estate, and that all other property of which he might die seized or possessed should be kept- separate and apart and should vest upon his decease in the legatees-named in his said will, as therein provided, clearly showing that-he intended that the balance of his property not placed in trust should not be affected by the provisions of the codicil, but plainly indicating his intention that it should pass under the will and be distributed under the provisions of said will, and this is further indicated by the further provisions of the codicil for the payment of unpaid legacies given by his will, and the discretionary power given to the trastees to pay out of the trust estate such sums of money for the payment of such specific legacies given by his will for the payment of which there should not be sufficient property outside of such trust estate to pay the same.

It will be noticed that by the provisions of the codicil creating the trust, the testator, though naming three- trustees, uses the language my beloved wife, Mercy Snyder, shall act as sole trustee herein, makes no provision for compensation for her or for the trustees for carrying on the business, and makes no disposition of the income and rentals from the trust property, unless this clause in question, to wit:

“I further authorize and -empower my wife aforesaid to collect-all my interest moneys and rentals of my property during her life or until the estate is finally settled and apply the same to her own use;’ refers to such trust income from the business to- be carried on and the rentals of the real estate devised in trust, hut' not in direct use in carrying on the business. This codicil, though ratifying and confirming the provisions of his will as to all property not placed in trust, clearly relates to the creation, management.and disposition of this trust estate, and this language above quoted, following the provisions for the manager ment and disposition of the trust estate, clearly seems to relate to the income and rentals from such trust estate. To say that under this clause the widow was entitled to the interest money and rentals of the estate not placed in trust during her life or until the final settlement of the trust estate, would be entirely inconsistent with the provisions and directions of the will, ratified and confirmed as' they are by the codicil. The whole intention of the testator, as expressed in this codicil is, that the personal estate not placed in trust should be applied to the payment of the legacies, given and bequeathed in and by his will, to his widow and three children, and in the manner directed by his will, and that each of his children and his wife should have the-sums given to them in cash as soon as practical after his death; that it should vest, as stated in the codicil, in the legatees named in his will upon his decease, as therein provided. And the provision also in said codicil for the payment of the legacies for which there should not be sufficient property outside of such trust estate to pay, clearly shows that the testator had no intention of tying up the estate not placed in trust till any final settlement of his estate, by any provision that his wife should collect all interest moneys and rentals during her life, or until the estate is finally settled, and apply the same to her own use. I am strongly of the opinion that it was intended to refer to, and does-refer to, the income and rentals from the trust estate, and that his widow, Mrs. Snyder, would be entitled to the same if the trust was valid, and that tire testator did not intend to give, and the language used should not be so construed as to give, the widow the interest money or any rental of any property outside of the trust estate, except that she would be entitled to interest on her legacy of $12,000, bequeathed to her by the will.

It appears from the account that there was some $18,787 in personal property and $3,000 in cash, besides certain real estate-of considerable value, given and devised by the codicil in trust..

This is not accounted for by the executrices or executors, except in a general way by stating that it was set apart, under the provisions of the will of said John Snyder, for continuing the business carried on by the testator at his decease. It is claimed that all this personal estate should be accounted for by the executors at this time and distribution of the same should now he made, for the reason that the trust created by the codicil is void. That there is an illegal suspension of the absolute ownership of the property so given in trust, as it is not limited upon a life or upon two lives in being at the death of the testator, but upon a definite period of time. This question arises on this accounting, and must he determined and settled before any proper disposition or distribution of the personal estate left by the testator at the time of his death can be properly made. For if the trust is void, then all of the personal estate of the deceased, including all of the personal property attempted to- be given in trust, should now be accounted for, and distribution thereof made as directed by the will of said deceased.

By the terms of the codicil certain personal property amounting to- about $18,787 and $3,000 in cash is given to Mercy Snyder, Lillie E. Gillett and Jennie A. Snyder in trust, and he directs his trustee or trustees to use the property for the purpose of carrying on the business of the manufacture and sale of tinware, rags, junk, iron, glass, etc., as then conducted by the testator, for the term of three years from and after his decease, or if in the discretion of his trustees it might be deemed advisable for the best interest of his estate, such business and such trut may continue until the expiration of five years after his decease.

Ed provision is made for the termination of the trust short' of three years from the day of the death of the testator, and after three years it is left discretionary with the trustees to continue it until the expiration of five years. Clearly a trust is created by this codicil by which the possession of personal property and the legal estate therein would he vested in the trustees during the continuance of the trust, and the absolute ownership oí personal property he suspended within the meaning of the statute. The trust is absolutely and unconditionally for a period of three years, and is not founded on lives. Mot upon the life of his widow, or any one, nor upon the lives of any two persons in being at the time of the death of the testator. The codicil creates but one trust, and that is for a definite period, three years. Mo part can be cut off, and no part disregarded for the purpose of rendering the trust valid for any purpose, ■or for the life of the widow, or any other person. Haynes v. Sherman, 117 N. Y. 433, 27 St. Rep. 254; Schettler v. Smith, 41 N. Y. 328; Underwood v. Curtis, 40 St. Rep. 255. As is said by Coffin, surrogate, in Will of Underhill, 6 Dem., at page 469: “To render such suspension valid, it must be limited on a life or lives. ' It is difficult to conceive how a limitation of three years may not be longer than until the termination of the lives of any two beings in existence at the death of the testator. To render such future estates valid, they must be so limited that; in every possible contingency, they will absolutely terminate at such period, or they will be held void.” It must now be considered as settled by the authorities of this State that a trust of real or personal ^property for a definite term of years, not founded on lives, will not satisfy the statute, and is void.

The trust created by this codicil, in so far as it relates tó. the personal estate of the testator, must be and is declared void, and the personal estate so attempted to be placed in trust must be disposed of and accounted for by the executors and executrices under the will of said testator. And as such personal estate, has been used and employed in the business carried on by the testator at the time of his decease, all income and profit, if any, should be accounted for, in order that a proper distribution thereof may be made. A decree should now be made for distribution of the money and property mentioned and accounted for in and by the account filed, and for the application thereof (after the proper deductions for commissions and payments of the costs of this accounting up to this date), to the payment of. the legacies given in and by the will of said deceased, to the widow and three children of the deceased, and upon the entry of the said decree this matter should be adjourned to' some future time, and the executrices and executors ordered and directed to proceed with due diligence in the meantime and disipóse of the merchandise undisposed of, personal property so attempted to be placed in trust, except said $3,000 cash, which should be included in the present disposition.


source: Caselaw Access Project

author: Coleman, S.

license: Public Domain

text:
    In the Matter of Proving the Last Will and Testament of Frances E. Purdy, Deceased.

      (Surrogates Court, Orange County,

      Filed January 27, 1892.)
    Will—Probate.
    Two instruments, complete in form, upon a four page blank, were offered for probate. One disposed of money and specific articles, and the other of specific articles alone. They were drawn by testatrix, and were the same in all respects except as to the legacies, and were not dated. The subscribing witness testified that one was executed Borne months before the other, but she had only an impression as to-which was executed first. It appeared that after one was executed testatrix received property from her sister which consisted wholly of household furniture. Feld, that as the will bequeathing articles alone was not a complete disposition of testatrix’s property, it must be . deemed the last one executed and the clause of the revocation ignored under the circumstances, and that the will disposing of money should be admitted as the will of testatrix and the other as a codicil.
    Proof of will.
    B. R. Champion, for petitioner, a legatee, the executor being dead; C. W. Coleman, special guardian, for minor next of kin; J. B. Sweezy, special guardian, for minor legatees.
   Coleman, S.

—Frances E. Purdy died on the 13th day of October, 1891, a resident of the city of Middletown, in this county, having an estate of about $5,000, all personal property.

Two instruments, upon a four page sheet of paper, each instrument in form a complete will, are offered for probate as the will of the deceased.

Upon one page and its reverse is printed th.e usual blank form of a will, and upon the succeeding page and its reverse is another printed blank form of a will. The two leaves of the sheet have never been torn apart. The only portions of each printed form that are filled in are the large spaces following the printed words, “Birst, after all my lawful debts are paid and discharged, I give and bequeath,” the blank left for the name of the exeuctor and the blank for the year. In the first of these spaces in each instrument is a list of legacies; in one seventeen legatees are named and five in the other, four of them occurring in both instruments. The same executor is named in both, and both bear date the-day of-, 1891. Each instrument is a copy of the other except the portion containing the names of the legatees and description of the legacies. In the instrument naming seventeen legatees, there is a legacy of $500, two of $400, one of $300, several of $200, $150 and $100, amounting in all to the sum of $2,600. The remaining legacies are of specific articles, principally of household furniture. In the other the legacies are all of specific articles of household goods and are of articles not mentioned in the other. Both instruments have in the printed portion the usual clause revoking all former wills.

The subscribing witnesses are the same to both instruments, one of them being now dead. The surviving witness in both cases filled in the blanks left in that clause in the printed form. This witness testifies that one was executed several months ber fore the other, but she is unable to tell which one was executed first; she thinks, however, that the one giving a gilt mirror was executed last, because she thinks the deceased did not have the mirror at the time the first instrument was executed. The instrument in which the gilt mirror is given is the one containing the gifts of money. The deceased and both witnesses were women well advanced in life, and there is no evidence that either of them had any previous experience in such matters, or that either had any knowledge of the legal requirements for the preparation and execution of a will.

The subscribing, witness testifies that the deceased, before the execution of the second instrument, said: “I have changed my will; I have added to it,, and I want you to come and give me your signature again;” she also testifies that the testatrix said at the time of the execution of the last instrument, “this is another part of my will, an addition; I have some other things to will away.”

The only provision in either instrument in the nature of a residuary clause is found in the one giving legacies of money, and occurs near the end of the written part,, and after the gifts of money. It is as follows: “After all my debts are paid, the remainder of the money to be equally divided between the different heirs mension' in the will of money.” Then follow other legacies of specific articles.

The written portion of the other instrument, after the printed words “I give and bequeath,” reads: “The following articles to my different nieces mension in this will;” then follow legacies of specific articles of household goods to five persons, and these legacies are the only provisions in this instrument relating to property.

It is laid down as settled law in Wms. on Exec., page 166: “If two inconsistent, wills be found of the same date, or without any date, and no evidence can be adduced establishing the posteriority of the execution of either, both are necessarily void, and the deceased must be considered intestate." But in every case the courts will struggle to reconcile them if possible, and collect some consistent disposition from the whole.”

The evidence of the surviving subscribing witness establish® beyond 'question that th®e two wills were not executed at the same time, but she "only has an impression as to which was ex&cuted first. I am satisfied that the witness is wrong as to this fact. It is altogether more probable that the testatrix executed first the instrument in which there is apparently a complete disposition of her estate; especially in view of the fact, which is conceded to be true, that the property received by her from her sister after the execution of the first instrument consisted largely of household furniture, and did not greatly augment her estate, and this is in harmony with the remark made by her at the time of executing the second instrument that she had some other things to will away. Parol evidence of these facts was admissible, as it related to an ambiguity upon the factum of the instruments. Wms. on Ex’rs, 353.

This being true, then it results, if full force is given to all the provisions of the second instrument, particularly of the clause revoking all former wills, that the first or principal will is revoked and the latter, which only makes a partial disposition of the estate, will be substituted in its place, thus leaving the deceased intestate as to the greater portion of her estate. A careful reading of .the disposing portions of the two instruments and the remarks made by the testatrix at the time of the execution of the second, will, I think, show that such was not her purpose, but rather that- one instrument was to supplement the other. This purpose, if possible within the provisions of the law, should he sustained.

Courts do not coniine the testamentary disposition to a single instrument, hut they will consider several, of different natures and forms and dates, as constituting together the will of the deceased. The form of an instrument is not controlling; it may he intended for a deed and yet. operate as a will. And a subsequent will does not necessarily work a total revocation of a former one unless the latter expressly or in effect, by being-inconsistent with it, revoke the former. These are well settled legal principles; I have, however', been unable to find a ease in which an instrument containing an expressed revocation of former wills was held not to revoke such former wills.

It is a maxim that “no man can die with two testaments;” and Sir H. J. Fust in Plenty v. West, 1 Robert, 264, said that he knew of no case where a testator called a will “his last will,” in which, the court held former papers to he included. The authority of this case, at least to the extreme point to which the law is there carried, has been questioned. Wms, on Ex’rs, 163, note c.

It was held in Nelson v. McGiffert, 3 Barb. Ch. 158, that when a later will is inconsistent with a former will in some of its provisions merely, it is only a revocation pro tanto. See also Brant v. Willson, 8 Cowen, 56 ; Newcomb v. Webster, 113 N. Y. 191, 22 St. Rep. 955; and in Harwood v. Goodright, Cowp. 87, Lord Mansfield said: “If there is a complete second will, it cannot do otherwise than revoke a former will; but if it is only a variation or subtraction from a former will, it is in the nature of a codicil.” The very meaning of the word codicil, as now used, is something annexed or added. Wms. on Ex’rs, 8.

In Thomas v. Evans, 2 East, 488, the testator made his will whereby a complete disposition of his property was made. Subsequently he acquired an interest in other real estate, and then made another will, which read: “This is the last will and testament of me,” etc., etc., and therein devised his interest in his subsequently acquired real estate, and concluded the will with these words: “As to the rest of my real and personal estáte, I intend to dispose of the same by a codicil to this my will hereafter to be made.” .The testator died without making the codicil. Held, “it is not enough to say that by making this will in terms large enough to include all his property, he must therefore have meant to revoke his former will, unless it be shown that he has made a disposition of this property inconsistent with it, * * * but even if this had imported an intention to revoke by making a different disposition in the future, it would not have amounted to a revocation.” Both instruments were admitted to probate, as together constituting the will of the deceased. And in In the Goods of Astor, L. R., 1 P. Div. 150, a late case in England, where an American had, by a will and codicils, disposed of his property generally, and by a second will, in which he named separate executors, had disposed of moneys invested in the British funds, the second will was admitted to probate as part of the testator’s will. See also Ex parte Lord Ilchester, 7 Ves. 372.

There must always be an intention to revoke. Acts which of themselves would ordinarily indicate an intention to revoke may ■ be proved not to have been so intended; as when a testator set about to destroy his will, and had actually partly tom it, but was persuaded from completing the destruction of the instrument; or having two nulls, the testator unintentionally destroyed the wrong one, or the will was accidentally destroyed. So, also; conversely, where by a statute a previously made will is revoked by certain acts of a testator, as in the case of a single woman who; having made her will, subsequently marries, a publication of a codicil to the will subsequent to the marriage republishes and establishes the will. Brown v. Clark, 77 N. Y. 369.

The cases cited, while not directly in point, however, do show the purpose of the courts to ascertain and as far as possible to carry out the intentions of testators. There probably has not arisen in the courts a case similar to the one now presented and could not very well have arisen until the present day of printed blank forms of wills. It is quite probable that Miss Purdy, having procured the blank form, in her inexperience gave very little attention to the printed portion of it, but confined her attention, rather, to what was necessary to be written to' show her wishes in regard to the disposition of her property, supposing, as she might reasonably do, that if this was plainly stated the rest was unimportant. And it is in this view of the case that I have concluded that it is proper to ignore that part of the second instrument in which it is stated that all former wills are revoked, also having in mind the familiar legal principle that' where words of a particular legal meaning are used by an unskilled person, in a different or even opposite sense from that ordinarily given them, that meaning and effect will be given them by the court which it is evident they were intended to have.

The instrument in which legacies of money are given will, therefore, be admitted as the will of the deceased,' and the "other as a codicil thereto.


author: Kennedy, S.

text:
    In the Matter of the Estate of Mary Sweetland, Deceased.

      (Surrogate’s Court, Madison County,

      Filed January 14, 1892.)
    Collateral inheritance tax—Parental relation.
    The deceased was a co-tenant of certain property with her sister, the mother of petitioners, and resided thereon with her sister’s family until her sister’s death, without any agreement as to board or payment of rent. After the sister’s death she continued to reside there in the same manner. After their father’s death the petitioners continued to work the farm in the same manner as formerly and deceased continued to reside with them until her death. Held, that this was not sufficient to constitute the relation of parent and child between them so as to justify an exemption from tax upon the property received by them from her.
    Proceeding for collateral inheritance tax.
    M. H. Kiley, for petitioners; J. A. Johnson, for the people.
   Kennedy, S.

—This is a proceeding to show cause why a decree should not be made adjudging that the real and personal estate passing to the petitioners, Floyd Greenman and Henry Greenman, nephews of deceased, he not subject to taxation under chapter 483 of the Laws óf 1885, and the several actsamendatory thereto.

The two nephews make this application for exemption from ■the payment of the tax on the ground that for a period of not less than ten years prior to the death of their aunt, Mary Sweet-land, they stood in the mutually acknowledged relation of parent and children.

The facts upon which the application is based are as follows r Mary Sweetiand was never married, and from the earliest recollection of the petitioners had made her home a part of the time with her parents, and some of the time with others. Upon the death of Miss Sweetiand’s mother, her heirs agreed upon a settlement of her estate, by which the mother’s farm in Oazenovia became the property of Miss Sweetiand and her sister, Mrs. Greenman, the mother of the petitioners. Some- time previous, to the death of Mrs. Sweetland, Mr. and Mrs. Greenman moved onto and carried on her farm for her, and after her death continued to occupy said farm till their death, since which time the two petitioners have occupied and managed said farm till the death of their aunt, receiving and using the entire avails of it without objection from Miss Sweetland, and paying her no compensation for the use of her half of the farm, and having no agreement with her in relation to it. Upon the death of their mother, the two boys became the owners of an undivided half of the farm in question, and by the will of their aunt were, made legatees of the other half of it, and all of her personal estate, amounting in all to about- $4,000. Mrs. Sweetland died in 1879 ; Mrs. Greenman July 28, 1879 ; Mr. Greenman March,. 1881, and Miss Sweetland November 3, 1889, aged sixty years. Henry is now thirty-eight years old, and Floyd thirty-one, and they claim that the relation of parent and child existed between themselves and their aunt from the death of their mother, July 28, 1879, to the death of their aunt, November 3, 1889, a period of about ten years and three months, notwithstanding the fact that their father did not die till March, 1881, leaving only a period of eight years and eight months for the relation to exist after the death of their father, provided such a relation did or could arise and have a legal existence by reason of any facts proven in this proceeding. The petitioners, during the life of their parents, have always lived at home with them and assisted their father in farming, and never were engaged in business elsewhere upon their own account After the father’s death the aunt and both nephew's lived together in the same house for a few' years, but subsequently Floyd married and built a house upon the farm, and thereafter lived separate from the aunt, leaving Henry and the aunt in occupancy of the old home till her death.

The application must be denied, because we think the law to be that if a child continues to live at home w'ith his parents after he has reached his majority the relation of parent and child,, theretofore existing, will bo presumed, to remain unsevered, until by decisivo and affirmative acts on the part of the child or parent his freedom and emancipation from such relation is claimed and asserted by him. Assuming this to be the law, the fact that some relative or other person lives in the same family as housekeeper or discharges many of the household- duties ordinarily performed by a mother, or is treated and regarded as one of the family by a surviving husband and children who have reached their majority, is not of itself sufficient to create that parental relation which the law recognizes as necessary to 'justify an exemption from the tax in question.

A less stringent and different rale should apply in case of minor children because of their lack of legal right to fix their relation with others, their real or supposed lack of that judgment and discretion which is necessary to determine what is best for them, their dependence upon others for their care, education and maintenance, and the duty of the public, the courts, and of private- individuals to provide for those whose helpless situation makes parental care necessary for them. So, too, there may be other special and peculiar circumstances arising from social, family or business relations, or from other causes and conditions in life, which would satisfy the court that it had the; legal right to infer the existence of parental relations. Again, if a father or mother dies, leaving children either over or under their majority, who have always lived at home, and the surviving parent remarries, such children and stepfather or stepmother, as the case may be, if they continue to recognize the relation of parent and. children to exist between them as ordinarily exhibited in families, the relation of parent and child would he presumed to exist, until the contrary was proven, and such child or children, in cases of a legacy from the stepfather or stepmother, would be exempted from the payment of the inheritance tax. Within the rules of law above stated, we think the petitioners would he exempt from the payment of any tax upon the legacy to them if their father had married his wife’s sister and they had continued to live at home with their aunt as their stepmother* for the period of ten years in the manner* in which they have lived, but we do not think the parental relation which the statute contemplates could commence in this case till the death of Mr. Greenman, a period of time too short- to give the petitioners the benefit of the statutory exemption.

Having stated the rules of law applicable to proceedings of this character*, we call attention to- some facts in this case in support of the conclusion we have reached. It appears that Mr. Greenman occupied and worked the farm in question from the death of Mrs. Sweetland in 1879 till his death in 1881, without any agreement with Miss Sweetland in regard to rent or payment in any form for the use of her half of it, and that during all this time she remained a member of the family, living with Mr. Greenman and his children without any agreement or understanding with reference to paying for her board, and upon his death the petitioners continued to carry on the farm till the death of their aunt in the same manner as their father had done, rendering her no account of its avails and paying her no compensation therefor, she continuing to live in the house in the same manner as she had done during the lifetime of Mr. and Mrs. Greenman. From the time Miss Sweetland and sister became the owners of the farm upon the death of their mother there was no change in the manner of conducting the farm or in the mode of living as far as she was concerned. The aunt and the children each treated and cared for the other the same as they had always done.

Ever since the nephews were bom she had made her home principally with their parents, had eaten at their table and been one of the family for more than thirty years, and we.assume she took an active interest in all family matters and assisted in all the varied duties of the household. But the relation of parent and children requires something more than living -in the same house and family under the circumstances shown in this case. Miss Sweetland and her sister were tenants in common of the farm, and after the death of Mrs. Greenman she was a like tenant with her nephews, and as such we assume she was occupying the house and was not there by reason of a license or permission from the other owners, but was in possession and living in the house by virtue of her legal right so to do, a right which could not be denied or taken from her. No act or agreement is proven by the nephews that they or their parents were ever in the exclusive possession of the farm, and it will therefore be presumed that the residence of the aunt in the house and all her relations with her nephews were, so far as business affairs are concerned, as a tenant in common with them, and not the1 relation of parent and child, at any time:

Her life and theirs upon the farm were simply the assertion of the mutual rights which each had in the real property. The-fact that she never received any of the avails of the farm would indicate that they were retained in payment for her board and services rendered in her behalf, beacuse Hr. Greenman or her nephews would not probably have retained this income unless they had a right so to do for some purpose or reason mutually satisfactory to all.

The counsel for the petitioners rely upon the opinion of this, court in the Hatter of the Spencer Estate, 21 St. Rep. 152, in support of the claim from exemption, but the facts of the two-cases are so widely different that the conclusions of law therein maintained do not apply to this case.

The application of the petitioners will, therefore-, be denied, and an order entered appointing an appraiser of the estate of Mary Sweetland.


author: Adlington, S.

text:
    In the Matter of the Probate of the Will of Samuel Wilcox, Deceased.

      (Surrogate’s Court, Monroe County,

      Filed June 23, 1892.)
    Will—Alterations by testator—Effect of.
    ¡ An interlineation, erasure or other alteration made in a will, either by the testator or a stranger, after due execution of the instrument, without a new attestation, does not avoid the instrument, but the court may disregard the same and probate the will according to its original language, when that can be ascertained.
    " Probate of will.
    Hubbell & McGuire and C. A. Shuart, for the proponents; John Van Voorhis and C. D. Kiehel, for the contestants.
   Adlington, S.

—The question of the due execution of this will has been heretofore settled by the courts, and the only point now remaining to be determined arises out of certain alterations and erasures appearing on the face of the instrument. In two clauses of the will, in which legacies of $7,000 were given to the relatives of the testator, the letter “s” has been erased and the letters “el” substituted therefor, thus changing the amount of the legacies from $7,000 to $11,000. In another bequest the words “the use of” have been interlined, though the change is not really material. This interlineation and the substitution of the letters “el” for “s,” just mentioned, have been done with a different ink from that with which the body of the will was written, and there is also much doubt whether the handwriting in which these changes were made is the same as that in which the rest of the instrument is written.

The fifth clause of the will originally read as follows: “I give and bequeath to my sister, Mary Rich, the use of seven thousand dollars during her life time, to be invested in bond and mortgage on unencumbered real estate under the direction of my executors herein named in trust, and after her decease goes to her daughter Susan Richards, under the same directions as enjoined on Mary Rich during the life time of Susan Richards; after her decease it shall go to her children, in equal shares

At some time the words at the end of said clause, here put in italics, have been erased, and can now be read only from the marks of the pen upon the paper, the ink having been wholly scraped away. The contestants allege that these alterations in the will were made after its execution by a person claiming under the instrument, and that the legal effect of the change is to avoid the will. In view of the fact that the alterations were not noted at the bottom of the. will, and were of a nature to excite suspicion, the proponents were called on to give such evidence as they had as to when and by whom the alterations were made; and the contestants then gave testimony in support of their allegations as to the changes in the will. Crossman v. Crossman, 95 N. Y. 153; Williams v. Ashton, 1 Johns. & Hem. 115.

On the evidence adduced I held that the alterations had been made since the execution of the will, either by the testator or by some person unknown, but not by the person charged by the contestants with the offense. The legal question to be decided is, therefore, what is the effect of material alterations in the will, made after its execution either by the testator or a stranger ? It is a well settled' rule of law that a material alteration in a deed, or other w'ritten contract, which has been duly executed and delivered, made without the knowledge or consent of the party bound thereby, avoids the instrument as against such party. It is obvious, however, that there is a wide difference between a deed, or ordinary contract, and a will. The execution and delivery of a deed, or contract, fixes irrevocably the liability of the grantor or obligor; but the execution of a will places no obligation or liability upon any one, nor does it confer vested rights upon any one. The testator may revoke or destroy the will at pleasure, and he may change or alter its provisions as often as he chooses, provided he has the altered instrument re-executed and re-attested according to law. Even after the testator’s death the instrument has no force until duly established in a proper court, and, after probate, any beneficiary named therein may refuse to accept a legacy, or other provision made for him in the instrument, if he elects so to do. It is apparent, therefore, that the peculiar nature of a will makes inapplicable to it .the rule of law heretofore referred to in regard to deeds, or other written contracts, and that the decision in this case must rest upon other principles.

In regard to all wills the great object of the courts is to give full effect to the intention of the testator, but the will to which such effect is to be given is one made in conformity with the requirements of the statute. In the case of an interlineation, or other alteration by the testator, without a new attestation, if effect should be given to such change, the statute of wills, which requires an attestation by subscribing witnesses, would be disregarded. If, on the contrary, a will were, because of alterations, to be held entirely void, it might utterly defeat the intentions of the testator. To avoid this dilemma of disobeying the mandate of the legislature on the one hand, or of defeating the intenten of the testator on the other, the courts, in case of an interlienation, erasure or other alteration, made' in a will, either by the testator or a stranger, after the due execution of the instrument, disregard the change and probate the will according to its original language, when that can be ascertained. Doane v. Hadlock, 42 Maine, 72; Smith v. Fenner, 1 Gall. (U. S. C. C.) 170; Will of Tonnele, 5 N. Y. L. O. 254; Pringle v. McPherson, 2 Brevard (S. C.), 279; Stover v. Kendall, 1 Coldw. (Tenn.) 557; Wheeler v. Bent, 7 Pick. 61; Penniman Will Case, 20 Minn. 245; Wolf v. Bollinger, 62 Ill. 368; Locks v. James, 11 M. & W. 901; Short v. Smith, 4 East, 418; In re Hardy, 30 L. J. Prob. 142; Cooper v. Bockett, 4 Moore, P. C. 419.

While in the courts of this State this precise point seems to have been very little discussed, yet there are several cases indicating the opinions of the judges upon the question. Before the revision of the statutes of this State a will of realty only passed such lands as the testator owned at the time of the execution of the will. In the case of Jackson v. Holloway, 7 Johns. 394, which arose while that was the law of the State, the testator had made his will devising all lands which he was possessed of to his sons, but after its execution he altered the clause so as to read “all lands which I die possessed of.” This change effected a material alteration, as the testator had bought other lands since the execution of the will. As to the effect of the .alterations the court said: “The obliterations in the will were made not with the intent to destroy the devise already made, but to enlarge it, by extending it to the lands subsqeuently acquired. The testator, however, failed in making interlineations and corrections which could operate, from not having the amendments attested according to law. The obliterations cannot, therefore, destroy the previous devise, for that was not the testator’s intention. It is, therefore, very clear- that the first devise must stand good.”

There are many cases in the Surrogates’ Courts in this State in which it has been held, "without much discussion of the question, that wills in which unattested alterations or obliterations have been made by the testator since the execution of the instrument should be admitted lx> probate and recorded in their original form. McPherson v. Clark, 3 Bradf. 92; Matter of Prescott, 4 Redf. 178; Wetmore v. Carryl, 5 id. 544-553; Dyer v. Erving, 2 Dem. 160-183; Will of Wood, 32 St. Rep. 286. The doctrine of these cases is also held to be the law of this State Quinn v. Quinn, 1 T. & C. 437. In the will there considered the testator, after its execution, had erased some legacies, and in some bequests had changed the name of the beneficiary. The General Term directed the entire will as originally executed to be admitted to probate.

In Lovell v. Quitman, 25 Hun, 537, affirmed in the Court of Appeals, 88 N. Y. 377, two bequests, one of $5,000 and one of $2,000, had been obliterated, or erased, with a pen, but were still legible. The appellants claimed that the parts of the will, ■so obliterated were revoked, and that seems to have been the only point argued by counsel, or discussed in the opinions of tho appellate courts. The surrogate, however, admitted the whole will, including the obliterated clauses, to probate, and his action in this respect was approved by the higher courts, which affirmed his decree. The text writers also hold opinions upon the point under consideration similar to those heretofore expressed.

Woerner, in his American Law of Administration, Vol. 1, page 92, says: “If a legacy be obliterated by a stranger, or inserted by interlineation, or changed in effect or amount, and the original legacy be known, it may be proved as it originally stood.” In 1 Redfield on Wills, page 315, paragraph 22, it is said: “Where the testator makes an alteration in his will, by erasure or interlineation or in any other mode, without authenticating such alteration by a new attestation, in the presence of witnesses, or other form required by the statute^ it being presumed that the erasure was intended to be dependent upon the alteration going into effect as a substitute, such alteration not being so made as to take effect, the will stands, in legal force, the same as it did before, so far as it is legible after the attempted alteration.” In Schouler on Wills, sections 434 and 432, the rule is stated as follows: “When a will is informally altered by the testator * * * the legal effect is not to make the will void, but to establish it in probate as it stood before the change was made.” “Alterations made in a will by a stranger after its due execution and without the testator’s knowledge or sanction do not affect the validity of the testament in other re-respects.” “If there is no sufficient attestation of the will as altered the alteration cannot take effect, but the will stands as before.”

I conclude, therefore, that the will must be admitted to probate and recorded as it was before the alterations and obliterations before mentioned were made; and a decree may be entered in accordance with this opinion on two days’ notice.