text:
    In the Matter of the Final Judicial Settlement of the Accounts of Edward T. Mulligan, Administrator.

      (Surrogate’s Court, Herkimer County,

      Filed March 6, 1893.)
    1. Executors and administrators—Inventory—Property set apart for
    WIDOW.
    The provision of chapter 406, Laws 1889, directing appraisers to set apart additional personal property to the widow in case her interest in the real estate of- the decedent in addition to her dower right and personalty to the amount of $150 is of less value than $1,000, is not limited to a case where the decedent leaves real estate. A case where the interest of the widow in the real estate of her deceased husband is nothing because of want of value and a case where her interest is nothing for want of real estate are both cases within the meaning of the act.
    2. Same—Constitutional law.
    Chapter 406, Laws 1889, is not unconstitutional as impairing the obligation of contracts made prior to its passage.
    On the 9th day of February, 1890, Thomas Mulligan, a resident of of the town of Winfield, in this county, died at said town intestate, leaving a widow, Bridget Mulligan, and three sons, Edward T. Mulligan, James H. Mulligan and William 0. Mulligan. At the time of his death the intestate was the owner •of and in possession of both real and personal property. On February 24, 1890, Edward T. Mulligan received letters of administration upon the estate of tire decedent, and upon the ■same day, upon the application of the administrator, appraisers were duly appointed to aid the administrator in making an inventory of the personal property of the decedent. On March 8, 1890, the administrator filed his inventory, by which it appeared that the appraisers set apart for the widow of the decedent the articles required to be set apart without appraisal, also furniture to the amount of $68.53, also other personal property to the amount of $150.
    The appraisers also further returned as follows: <(We do inventory and appraise the interest of the widow, Bridget Mul-

      ligan, in the real estate of her deceased husband, Thomas Mulligan, in addition to her dower right therein, to be: of no value and worthless, and we do-, therefore, in compliance and conformity with chapter 406 of the Laws of 3 889, inventory and set apart for the use of such widow, Bridget Mulligan, the following described personal property,” then follows a list of personal property, the value of which as appraised amounted to $467.95. The appraisers also returned in the inventory that no other personal property was exhibited to them, and that they believed there was none. Thereafter the administrator filed his account in this court, in which he alleges that he caused an inventory to be made and filed and that the appraisers had set apart- to the widow of the deceased all the personal property, and that nothing had come into his hands as administrator. The account also contains a list of the creditors and the amount of their respective claims against the estate which are unpaid. In this list is A. Curtis Day, whose claim appears to be $2,400.00. Upon the accounting Mr. Day appeared and filed objections to the account, and asked that the administrator be chargéd with the sum of $467.95, which the appraisers set apart to the widow. It was proved or conceded on the hearing that on March 1, 1889, Day and wife conveyed to Mulligan, the intestate, a farm of about 108 acres, situated in Herkimer county, which Mulligan owned and occupied at the time of his death, also that Day’s claim as creditor was mainly upon a bond given by Mulligan to pay the purchase price of the farm, and was dated March 1, 1889. The inventory made by the administrator, by the aid of thd appraisers, was also put in evidence.
    Steele & Prescott, for administrator; Root & Jones, for creditor Day.
   Sheldon, S.

The administrator claims that the sum of $467.95, which was set apart to the widow, in addition to the other articles and sums allowed her, was properly set apart to her by virtue of that provision of chapter 406 of Laws of 1889, which reads as follows: “And in case the interest of a widow-in the real estate of a deceased husband, in addition to her dower right and together with said one hundred and fifty dollars, shall be of less value than one thousand dollars, then said appraisers shall set apart for the use of such widow, or for the use of such widow or child and children, in the manner herein-before prescribed, personal property which, together with said real estate, shall amount to one thousand dollars in value. Said appraisers are authorized to make an appraisal of the real estate to which the widow may be entitled for the purposes of this section. The provisions of this section shall apply where a man dies intestate, as well as where he leaves a last will and testament.” The creditor objecting to the allowance to the widow claims that upon reading the first section of the act in connection with the provisions above quoted, a construction of the act must follow' which forbids an allowance of personalty additional to that formerly set apart to the widow except in those cases Avhere the AvidoAv has and takes an- interest of some value in the real estate of her deceased husband.

In support of this contention the decision of Surrogate Ransom, in Matter of Estate of William Koch, 31 St. Rep. 963, is cited. In that case the learned surrogate held that the additional provision of personal property for the widow could be availed of only in a case w'here the deceased husband was the owner of real estate at the time of his death.

The opinion of the learned surrogate is entitled to great reispect, but I am constrained to think that his view of the statute is a mistaken one. Doubtless a literal reading of the act upholds the position above stated, and upon such a narrow and critical construction it might be urged Avith nearly as much plausibility that section 30, added by this act to chapter 2 of part 2 of the Revised Statutes fails in its purpose to give the widow an additional portion of the real estate of heir deceased husband because it provides that the “widow, in addition to any interest to which she may be entitled under the preceding: sections of said chapter two, shall be entitled to the use for life of an additional portion of the estate,” when a reference to the preceding sections of chapter 2 discloses that the widow of an intestate does not become entitled to any interest, whatever, in the real estate of her deceased husband by virtue of those provisions ; the provision for dower, which was doubtless intended, being ■contained in chapter first instead of chapter second. But the .statute is plainly an enlargement of the humane provisions of the law in favor of the widow and the orphan, and must be liberally construed to accomplish, if possible, its purpose. Stewart v. Brown, 37 N. Y. 350; Chamberlain v. Darrow, 46 Hun, 48, 11 St. Rep. 100; Wilcox v. Hawley, 31 N. Y. 648. ■

Another rule of construction is that every provision of the act must, if possible, be given a meaning which permits it to take effect in accomplishing the general purpose instead of a meaning which makes the provision itself void or one which •destroys or impairs the general purpose. And the various pro* visions must be construed, if possible, so that they may become parts of one harmonious whole. Having in view, then, the purpose of the act, it is clear that the provision in section 1, that “such widow, in addition to any interest to which she may be entitled * * * shall be entitled to the use, during her life,' •of an additional portion of the estate, not exceeding $1,000 in value,” means and should be read, “in addition to her dower right- * * * shall be entitled to an additional portion of the -estate besides her dower, etc.” The words “in addition to” ■occur twice in section 2 of this act, and once in section 1, and I think must be taken as the equivalent in meaning of besides in--each instance of its use. - It is evident, therefore, that -the legislative intent was to malee an additional provision for the widow, a provision besides the former ones, a provision which should not fail in any case, except for want of property out of which if •could be made. It is true that, as to the kind of property from' which such provision was to be set apart, real property is preferred, but there is a careful direction given to supply the want ■of real property to the extent of the deficiency with personal. It might happen that, in a case where a deceased husband devised real estate to his widow, that her interest in the real estate of her deceased husband, over and above her dower, would be of greater value than $850, and the widow would take no additional personal property by virtue of this act. In another case it might be that the real estate devised to the widow would be of no greater value than her dower right and be in lieu of dower, and then the entire additional provision of $850 would be set apart from the personal to make up the required $1,000, and this without regard to whether the dower or devise was of great or little value.

Can it be supposed, then, that in a case where the value of the dower is nominal, or in a case whore there is no real estate to which the right of dower might attach, that it was the intention of the act that no additional provision of personal property should be made ? A case where the interest of the widow in the real estate of her deceased husband is nothing because of want of value, and a case where the interest therein is nothing for want of real estate, are both, in my opinion, cases within the meaning of this act where such interest, together with said $150, is of less value than $1,000, and the appraisers are authorized and required to set apart additional personal property to the amount of $850, if there is personal property to that amount, and if its value is less, then all the personal should be set apart, as was done in this ease.

The further claim is made by the contesting creditor that inasmuch as the contract by virtue of which this claim of indebtedness accrued was made before the' passage of the act in question, that the parties intended that this personal property should be available for the satisfaction of the debt and that the legislature cannot pass an act nullifying the intention of the parties manifested in their contracts.

This claim, if anything, is that the act is unconstitutional, because it impairs the obligation of a contract.

The act in question is, in express terms, an amendment of “An act to extend the exemption of household furniture and •working tools from distress for rent and sale under execution as-amended.” The amendment is in no way different from the original act except that it extends and enlarges the exemption.

The claim that the original act was unconstitutional because it impaired the obligation of contracts made prior to its passage was passed upon in the Court of Appeals in the decision of tire-case of Morse v. Goold, 11 N. Y. 282, where the court held that, the act affected the remedy, and not the contract, and was not unconstitutional. This act differs only in the extent of the exemption, and I think the reasons which led to the decision of that case apply with equal force to the case in hand and require a like decision.

The objections to the account of the administrator are not sustained.


source: Caselaw Access Project

author: Vance, S.

license: Public Domain

text:
    In the Matter of the Probate of the Will of Owen Simth, Deceased.

      (Surrogate’s Court, St. Lawrence County,

      Filed July 20, 1893.)
    1. Will—Knowledge of contents.
    Where the deceased was a man of prudence and care, and all the requirements of the statute as to the execution of wills was complied with, it is not to be presumed that he signed or affixed his mark and made a declaration as to what the instrument was without knowledge of its contents, and the court cannot require, on account of his lack of education, that it must he made to appear that the instrument was. read to him.
    2. Same—Delusions.
    To constitute a delusion, there must be a belief in the existence as a fact of something which does not exist; and such belief must be-without basis for its support, springing up without cause in the imagination of the person entertaining it, and become so firmly implanted in the mind as to withstand such evidence and argument as would convince reasonable persons of its falsity.
    3. Same.
    When decedent’s son was seven years old, decedent came home intoxicated and told his wife he had been told that said son was not his child, and repeated the story at different times for thirty years, but only when intoxicated. Some years before his death he told the priest the same thing, and in his will disinherited said son. JSeld, that decedent was not the subject of a delusion which would invalidate the -will.
    Probate of will.
   Vance, S.

The probate of the instruments offered as the last will and testament, and a codicil thereto, of Owen Smith, deceased, is opposed on two grounds:

First. That said instruments were not the last will and testament of deceased because of want of proof of knowledge of the contents at the time of the execution thereof.

Second. Because of the mental condition of the deceased, it being claimed that he acted under a delusion as to the paternity of his son which rendered him incompetent to make a will affecting the interests of such son.

The evidence clearly shows that Owen Smith could neither read nor write, and it. does not distinctly appear that either instrument was read to him.

It clearly appears that the deceased exercised more than ordinary care concerning the safe keeping of his will, that he was a careful, prudent, calculating man in all his business transactions, and that at the time of the execution of each instrument he declared the one to he his last will and testament and the other a codicil thereto.

It is not to he presumed that a man of prudence and care affixed his mark to an instrument and made a declaration as to what that instrument was without knowledge of its contents. If any presumption is to be indulged it is that he knew the contents of the paper. All the requirements of the statute as to the execution of the instruments were fully complied with, and this court cannot add another, that because of his lack of education it must be made to appear that the instrument was read to him.

The chief reliance, however, of the' contestant is upon his claim that at the time of the execution of the will and codicil his father was subject to a delusion as to legitimacy of contestant.

The proof shows that Owen Smith and Louisa, his wife, were married at Canton, N. Y., in 1850. That at the time they were in the employ of Minturn Harrison, in whose employ they remained for about a year after marriage. They then commenced housekeeping upon a lot of fifty acres which he held under contract, the- purchase price of which was only partially paid. About eighteen months after marriage there was bom to them a son, Henry Smith, the contestant, their only child. The couple continued to- reside on the lot before mentioned until. July 27, 1892, when Owen died. Their possessions had gradually increased until it had become a farm of- 125 acres, under good cultivation and well stocked. In addition to this there was owned at the time of his death four or five hundred dollars in money or note.

He was an industrious, careful, prudent man, his only fault aside from the alleged delusion being the indulgence at times to excess in the use of intoxicants.

At some time, it does not appear clearly when, before fifteen or eighteen years ago, there w7ere stories afloat in the neighborhood concerning the Smith family, the nature of which the evidence does not fully disclose, which had come to the ears of Owen.

When Henry was about 7 or 8 years of age Owen came home from Canton intoxicated, and while in that condition informed his wife that he had been told that Henry was not his child. This was repeated several times each year for almost thirty years, the language used being sometimes a positive assertion that Henry was not his child and that his wife had been untrue to him and had connection with other than himself.

He never did so except when intoxicated, and never in the presence of others. Six or seven years before his death he called upon the priest of his church asking advice as to- how he should treat his -wife in his will, and stated that Henry was not his son, and he did not intend to leave him any of his properly. It does not appear that he ever mentioned his belief as to the illegitimacy of Henry to any person except his wife and his priest.

By the will the contestant is disinherited, which he insists was the result of an insane delusion on the part of the deceased. In order to determine this question it is necessary to determine exactly what a delusion which incapacitates is. Bouvier defines a delusion as “a diseased state of the mind in which persons believe things to exist which exist only, or in the degree they are conceived of only, in their own imaginations, with a persuasion so fixed and firm that neither evidence nor argument can convince them to the contrary.” Sir John Nichol, in the celebrated case of Dew v. Clark, 3 Ad. 79, says: “Whenever a patient once conceives something extravagant to exist, which has still no existence whatever but in his own heated imagination, and whenever at the samé time, having once so conceived, he is incapable of being, or at least being permanently reasoned out of that conception, such a patient is said to be under a delusion.” Judge Redfield, in his treatise on wills, says: “A belief based upon evidence, however slight, is not delusion, which rests on no evidence, but upon mere surmise.”

All the authorities to which I have had access agree that to constitute a delusion there must be a belief in the existence as a fact of something which does not exist; that such belief must be without basis for its support, springing up without cause in the imagination of the person entertaining it, and become so firmly implanted in the mind as to withstand such evidence and argument as would convince reasonable persons of its falsity.

■ Was Owen Smith the subject of such a delusion? It is ben yond question that he believed that the contestant was not his-child, and that such belief was without foundation in fact. But was this belief the creature of his imagination? I cannot but I believe from the evidence that “the stories” which were in ciicu-: lation had much to do with this belief. The gossip of the' neighborhood had lodged in his mind a poison, the venom of which, in his sober hours, he was able to restrain, but which,, when reason was driven out by rum, exhibited itself in the charge of unchastity of his wife. It must be remembered that on the first occasion in which she says he mentioned the matter to her he said he had heard that Henry was not his child. The continued repetition of this charge for years in drunkenness produced such an effect upon his mind that he came at last to believe it, and at length he reveals his convictions to his priest.

Thus the element of a delusion, a belief existing without cause, other than the imagination of the deluded, is wanting.

The other element of a delusion, that it must be belief maintained in opposition to evidence and argument that would convince the ordinary mind of its falsity, is also wanting. So far as the evidence in this case goes, it does not appear that the wife whose chastity was impugned, nor the good priest to whom he went for advice, made any attempt by argument or evidence to convince him of his error.

It must be apparent that if Owen Smith heard the report that contestant was not his child and that report was trae, he labored under no delusion in regard to the matter; if the report was not true, it was still evidence upon which he could act, however unjust and mistaken his action might be, without rendering what he did the result of insanity. If no such report was heard by him and he never believed his wife to have been untrue to himj then he can be accused of depravity, not of insanity.

Upon all the evidence, I cannot escape the conclusion that at the time of the execution of the instruments offered for probate Owen Smith was not the subject- of a delusion in regard to the paternity of the contestant, and the instruments must, there-. fore, be admitted to probate.


author: Kennedy, S.

text:
    In the Matter of the Estate of Sidney Smith, Deceased.

      (Surrogate’s Court, Madison County,

      Filed March, 1893.)
    Collateral inheritance tax—Appraisal of property omitted.
    While the decree of the surrogate in a proceeding under section 13 of the act is conclusive upon the State and the property affected thereby cannot he reappraised; yet where property was withheld from the appraiser, whether intentionally or otherwise, and therefore was not appraised, such omitted property may be assessed in proceedings under sections 16 and 17.
    Motion to 'dismiss collateral inheritance tax proceeding.
    H. M. Aylesworth, district attorney (H. B. Coman and S. D. White, of counsel), for petitioner; William. Man (S. M. Lindsley, of counsel), for respondents.
   Kennedy, S.

Sidney Smith, a resident of Madison County, died on the 29th day of October, 1886, leaving a large amount of personal and real estate in possession of his committee. On the 28th day of December, 1886, the surrogate of this county-appointed Adon.Smith administrator of his estate, and he thereupon duly qualified and entered upon the discharge of his duties. On the 3rd day of March, 1887, said administrator filed in the office of the surrogate an inventory of the personal estate of said decedent, which amounted to the sum of $390,872.83. On the 26th day of February, 1887, the surrogate appointed William M. Henderson appraiser for the purpose of ascertaining the amount of the inheritance tax to which the State was entitled. On the 26th day of March, 1887, said appraiser filed his report, whereby he appraised the property of said decedent liable to said tax at the sum of $484,000. The surrogate, after making, certain deductions from the reported amount' of the estate, adjudged the value of the property liable to taxation at the sum of $270,000, and assessed a tax of $13,500 thereon, which was duly paid by said administrator. On the 23rd day of October, 1888, a judicial settlement of said estate was had before the surrogate, and distribution was ordered according to law.

On the 3rd day of July, 1890, H. M. Aylesworth, then district attorney of this county-, upon due notice from the county treasurer, presented to the surrogate a petition, wherein it was alleged, upon information and belief, that the personal estate of said Smith, instead of being $390,000, was in fact more than $700,000, and that said appraisal was procured by said Adon Smith and others by false and fraudulent representations as to the amount and value of said estate, and by fraudulent concealment from the appraiser as to the true condition thereof. Upon these facts, said Aylesworth asked, among other things., that a citation be issued requiring all persons interested in the ■property liable to the inheritance tax to appear in Surrogate’s Court and show cause why said tax should not be paid, and for such other order, decree and relief as might be júst and proper; whereupon a citation was issued in accordance with the prayer of the petition. Upon the return of the citation, the administrator and some others of the interested parties appeared specially and filed answers alleging, among other matters of defense, a lack of jurisdiction in the surrogate to entertain the proceedings, because of the fact that there had been an appraisal of the estate, and the surrogate had already assessed the tax due thereon, and the same had been paid. The surrogate overruled the objections of the respondents, whereupon they appealed to the General Term of the Supreme Court. After argument upon the issue raised by the petition and answers, the court affirmed the ruling of the surrogate. From this decision the respondents did not appeal. Subsequently, they appeared in Surrogate’s Court and filed their answers in this proceeding.

At the close of the evidence on the part of the petitioner the respondents again moved to dismiss the proceeding upon the ground of lack of jurisdiction by the surrogate to entertain the same.-

The respondents rely upon the opinion in the Matter of the Estate of Wolfe, 137 N. Y. 205, 50 St. Rep. 406, as authority for the position assumed by them, to wit, that after one appraisal has been had, the surrogate cannot require another appraisal to be made, while the counsel for the petitioner claim that it has no application to this case and rely upon other reasons and decisions in support of their theory of the law.

We shall hold, however, that the Wolfe case amply justifies the practice adopted in this proceeding, plainly suggests th@> ground upon which it may be maintained, clearly and concisely points out the procedure by which the inheritance tax may be collected, and the principles which underlie the system of taxation in this State introduced by chapter 483 of the Laws of 1885, known as the collateral inheritance tax act.

As a basis for our conclusions of law, we quote from Judge' Heat's opinion, as follows:

“When we read all the provisions of this act, it is perfectly apparent that an especial system of taxation was created for the benefit of tire State, with all the necessary machinery for its working; the control of which was vested in the Surrogate’s Court, with a jurisdiction exclusive in its nature. In the assessment of a tax upon property passing by will or by the intestate laws, the responsibility is imposed by law upon the surro^gate. He acts for the State, and he is commanded to assess and fix the tax to which the property is liable. * * * When the machinery of this system of taxation is set in motion under section 13 of the act, whether upon the application of interested parties, or upon his own motion, the surrogate, by force of its provisions, is at once vested with the office and the functions of an assessor for the State, whose duty it is to assess for its use a tax; and in whom, not only by virtue of the office, but by the further provisions of section 15, inheres the authority, and upon, whom rests the obligation to determine the question of whether the property of the decedent, which passes to others, is subject or liable to taxation by the State. * * * I can se.e no difference between the principle upon which the surrogate acts in proceeding to assess property for taxation under the act and that upon which, in the general system of taxation in the State tax assessors act in the assessment of persons or property for taxation.”

Parallel illustrations will show that Judge Geay is correct when he says that there is no difference in' the principle upon which a surrogate and town assessors act in the assessment of persons and property, and we now point out their similarity as follows: '

The town assessors are required to ascertain by diligent inquiry all the taxable property, real and personal, within their town, and to assess the value thereof.

It is the duty of the surrogate to appraise the property of a •decedent at what was the fair, and clear market value thereof at the time of the death of the decedent; and, in order to fix the value of the property of persons whose- estates shall be subject to the payment of said tax, the surrogate is authorized to appoint some competent person as appraiser, as often as and whenever occasion may require the appraisal of the decedent’s property.

Chapter 453 of the Laws of 1865, in relation to property liable to, but omitted from, assessment by the assessors, authorizes the assessors to enter the omitted property on the assessment roll at the valuation of the preceding year, and the board of supervisors are required to lay a tax thereon at the rate per cent. •of tax imposed upon land or property in said town the preceding .year.

Chapter 483 of the Laws of 1885, the inheritance tax act, -sections 16 and 17, points out the procedure to- be followed in •case a tax has been assessed but not collected, or in case it is -due, but has been omitted from assessment by the surrogate. Judge Gray says the tax may be due because the surrogate so determined under section 13, or where no proceedings have been had for its appraisement.

Having shown that the principles upon which the surrogate and town assessors act are similar, we state the result of this application in this case.

The surrogate appointed an appraiser for this estate. The appraiser examined and appraised all the property which the-administrator presented to him for appraisal, and made and filed his report- He had no authority then, as he now has, to subpoena witnesses and interrogate them under oath as to the true -condition of the estate. He had no personal knowledge of it, and all that he could do was to accept the voluntary statement of the administrator or others as to its character and of what it consisted. There is no dispute but that the report of the appraiser, upon which the surrogate acted, appraised all the property presented to him by the administrator for his consideration or valuation, and all the property mentioned in the inventory filed by the administrator. As to this property, thus appraised, upon which the surrogate has assessed the tax, we hold that the decree of the surrogate is conclusive upon the State, and that such appraisal, assessment and decree cannot be attacked in this proceeding.

If it be true that a large amount of property was withheld from the consideration of the appraiser, whether intentionally or otherwise, and as to which the appraiser had no knowledge, and the same was, for this reason, not appraised, we shall hold, as to such omitted property, that the state has the legal right to institute such proceedings for the recovery of such tax as may be due thereon. This omitted property has never had its day in court. It has never been submitted to the jurisdiction of the appraiser or surrogate, and therefore has never been put in jeopardy. It has, intentionally or otherwise, eluded the tax due the State. All that the Wolfe case decides is, that where property has once been submitted to the surrogate for taxation, his decree, if wrong, can only be reviewed upon appeal, and cannot be attacked in another proceeding. It does not hold that other property, upon which a tax is due, cannot be assessed under sections 16 and 17, in another proceeding for that purpose. The statute says that the surrogate shall appoint a competent person appraiser, as often as and whenever occasion requires; and the reason given by the courts for this provision of the law is, that property may be fraudulently concealed, accidentally overlooked, or it may not be known to the representative of the decedent at the time of the appraisement.

We do not understand by this that property which has once had its day in court, for the purpose of taxation, can be reappraised, unless, for some cause, such appraisal has been, on anpeal, or otherwise, re'-opened or set aside by the court. Only such' property as has been omitted- from appraisal is to be taken into consideration.

We, therefore, hold that if the allegations of the petitioner in this proceeding are true, the State has the legal right to an appraisal of the property of Sidney Smith, deceased, which has not been appraised, and upon which the tax has not been assessed by the surrogate in the former proceeding for that purpose.

The motion of the respondents for the dismissal of this proceeding is, therefore, denied.


author: Davie, S.

text:
    In the Matter of the Estate of Danforth Daggett, Deceased.

      (Surrogate’s Court, Cattaraugus County,

      Filed November 21, 1892.)
    Limitation-—Waiver of by inclduing claim in inventory.
    Including in the inventory a note or claim against the executor, without other comment or memoranda, is such an acknowledgment as to take it out of the statute of limitations.
    Judicial settlement of accounts.
    E. A. Scott, for the widow; W, R. Pindar, for administrator.
   Davie, S.

This is a proceeding for the judicial settlement of the accounts of Relson Daggett, as administrator of the estate of said deceased.

Danforth Daggett- died intestate, at the town of Yorkshire, in the month of August, 1889, leaving a widow and descendants, and owning real estate of the value of $1,150.00, and personal property to the amount of about $500.00, and letters were granted upon his estate September 2, 1889.

The administrator, Avith the aid of appraisers, duly appointed for that purpose, prepared an inventory of the estate, which was filed Rovember 7, 1889.

In making such inventory, the appraisers sought to set off to the-widow, in addition to the articles exempted to her by the Revised Statutes, and the $150 provided for by chapter 157 of the Laws of 1842, an interest in the real estate of the deceased in the following terms: “Under chapter 406, Laws 1889, we set off in conformity to said law one house and lot in the village of Yorkshire Center, N. Y., and being the same house in which the said Danforth Daggett resided before his demise, described, etc., * * * and appraised at $1,000.”

A proceeding was thereupon commenced in Surrogate Court, upon the petition of the widow, to procure an order directing the administrator and appraisers to correct said inventory by setting off to the widow the entire amount of personal property to which she "was entitled under the provisions of chapter 406, Laws 1889, "which proceeding resulted in decree directing said appraisers to set off to the widow, in addition to what they had already allowed her, other personal property to the amount of $369.31, and the administrator appealed from the order entered therein to the General Term, where said order was affirmed, Matter of Daggett, General Term, April 16, 1891, 37 St. Rep. 810, and the widow thereupon became entitled to the entire personal estate. .

Among the items of personal property included in the inventory was a promissory note, made by the administrator to the deceased, dated September 23, 1879, for the sum of $150.18, and which, with the accrued interest, wras appraised at $251.18. In the account filed the administrator credits himself with the-amount of said note, so appraised, alleging that the same is not a valid claim, being barred by the statute of limitations.

Objections are filed on behalf of the widow to various items of said account, none of which are now insisted upon aside from the claim that the administrator should be charged with the amount of said note.

It is provided by statute that the naming of any person executor in a will shall not operate as a discharge- or bequest of any just claim, which the testator had against such executor, but that such claim shall be included among the credits and effects of deceased in the inventory and such executor shall be liable for the same as for so much money in his hands at the time such debt or demand becomes due. 2 Rev. St. 84, sec. 13. And although insolvent at the time of his appointment he is bound to account for a debt so due from him and should be charg'ed therewith on the settlement of his accounts as for so much money in his hands. Baucus v. Stover, 89 N. Y. 1.

The principle enunciated by the statute and applied by the authority above cited is recognized as equally applicable to administrators, inasmuch as the necessity for such a rule, viz., tx> obviate all difficulty, doubt, embarrassment and'the incongruity of requiring a personal representative to proceed against himself for the- collection of a debt, is equally great in both cases..

So, the inquiry in this case is, was this note a valid claim against Eels on .Daggett at the time of his appointment, or has it become so by any act of his since his appointment ? If it is, then he must account for it, as for so much m'one-y in his hands.

The note, upon its face, is barred by the statute, but it is claimed that the running of the statute was suspended by an. indorsement thereon of $1.50, under date of May 18, 1885.

The indorsement is in the following form: “May 18, 1885,. received on the within note, one dollar and fifty cents,” but it does not appear that such indorsement was made with the knowledge or consent of the maker of the note, or that he, in fact, made any payment whatever thei*eon. Several witnesses am called who were well acquainted with the handwriting of both the intestate and the administrator, and who testify, with a considerable degree of certainty, that such indorsements are not in the handwriting of either. They further state that the note was exhibited to them at the time of making the appraisal and that the indorsement then had the appearance of having been very recently made, that the ink presented a bright, metallic lustre peculiar to writing recently done.

The indications are that such indorsement was made by some one interested in keeping the note from becoming barred, and actins: under the supposition that the mere crediting of a small amount thereon would accomplish that result, and there is nothing in the fact that the note bears such indorsement that justifies~ the conclusion that the note is not barred by the statute.

It is urged on the part of the widow that, assuming such not& to have been barred at the time of taking the inventary, the act of the administrator in including it among the other assets of the estate was a sufficient written aeknowtedgment to remove the bar.

In the origin a] inventory filed, this note was described as follows: "One note by Nelson Daggett, dated Sept. 23rd, 1879, present amount $251.18." No other comment or memorandum, with reference to this demand, appeaa's in the inventory, although one oilier claim set forth therein is characterized as "doubtful," and another as "outlawed." The inventory is verified by tl~e administrator in the following form:

I, Nelson Dagget,do swear that I am administrator of the estate of Danforth Daggett, the above named deceased; That the following

inventory ~s in all respects just and true; than ~it contains a true statement of all the personal property of the said deceased which has come to my knowlèdge~ and par~cu- larly of money, bank bills and other circulating medium belong- ing to the said deceased, and of all just claims of the said de~ cease~ against me, according to the best of my knowledge (and also of the rcal estate of deceased, as required by chapter 406, Laws of 1S89). "NELsoN DAGGETT.

Sworn to beforeme, this 7th day of November, 1889. C. S. Persons, Justiice of the Peace.

While an acknowledgmentor promise in writing signed by the party to he charged thereby is the only competent evidence of a new or continning contract whereby to take a case out of the operation of the statute, Code Civ. Pro. sec. 395, yet it has been distinctly held that including such claim in the inventory was a sufficient acknowledgment. Ross v. Ross, 6 Hun, 80; 6 Hun 80; Morrow v. Morrow, 12 id. 386; Clark, Adm’r, v. Van Amburgh, 14 id. 557; Bryar v. Wilcocks, 3 Cow. 159; Stuart v. Foster, 18 Abb. Pr. 305.

The evidence discloses that, at some time during the progress of the appraisal, the administrator objected to this note being inventoried, but that is of little consequence in view of the fact that it was included among the assets and verified by the administrator as a just claim of the deceased against him. If the administrator had persisted in his refusal to include this note among the assets, or had refused to verify the inventory containing it, then, of course, no liability could be predicated upon the fact that the appraisers had enumerated it in the schedule of assets; or even if characterized in the inventory in the same manner as another claim therein set forth, “outlawed,” there might be some opportunity of escaping, in this case, an application of the authorities above cited; but the declaration of the administrator under oath regarding the claim in controversy does not seem to leave much opportunity for speculation.

It must be held in this case that the administrator should be charged with the amount of the note, and a decree will be entered accordingly.


text:
    In the Matter of the Estate of William F. Wheeler, Dec’d.

      (Surrogate’s Court, Cattaraugus County,

      Filed December 22, 1892.)
    1. Collateral inheritance tax—Parental relation.
    One who has been brought up by testator from childhood and treated as one of the family, although not adopted by him, is one to whom he stood in the relation of a parent within the meaning of the statute.
    2. Same—Real estate—Equitable conversion.
    While real estate which descends or is devised directly to - wife or children is not taxable, yet if the decedent makes such a testamentary disposition of his real estate as to convert it into personalty, the shares of the legatees under such a will are liable.

      3. Same—Postponement of assessment.
    A larger part of testator’s real estate was partnership property, and the actual value of his interest depended largely on the manner in which it was controlled. The will directed the executors to continue in the partnership until it might be disposed of to the best advantage. Held, a proper case for postponement of the assessment and collection of the tax until the parties entitled came into actual possession.
    Collateral inheritance tax proceedings.
    William E. Wheeler, for executors; H. O. Wait, county treasurer, in person.
   Davie, S.

William E. Wheeler died at the town of Portville, Cattaraugus County, on the 6th day of June, 1892, leaving a will, which was admitted to probate by the Surrogate’s Court of said county on the 21st day of June, 1892, and on the same day letters were issued thereon to William E. and Helso-n P. Wheeler, sons of deceased, the executors named in said will.

Shortly thereafter an appraiser was appointed, upon the application of the executors, to' determine the value of the estate of decedent subject to taxation pursuant to the provisions of the “Act in relation to taxable transfers of property.” Chapter 399, Laivs 1892. Such assessment w7as made, and report thereof duly filed, and this controversy arises upon the proceedings to determine the amount of tax to which said estate is liable, as required by section 13 of said act.

By the terms of the will and codicils thereto1, the testator desvised to his wife the use, during her life, of certain real estate designated in-the will as the “ homestead,” and also bequeathed to her certain articles of personal property and the sum of $20,000 absolutely, one-half thereof to be paid upon the probate of the will, and the balance in one year from the death of the testator. To each of his twTo daughters the testator bequeathed the sum of $5,000 in addition to certain specific articles; to his son Nelson he devised an undivided one-half of the testator’s interest in certain lands in the County of Venango, Pennsyl vania; and to each of his sons the sum of $5,000. By the terms of his original will, testator bequeathed the sum of $2,400 to one Emma Godfrey, but by a codicil to said will this bequest was revoked, and in place thereof Hiss Godfrey was given an annuity of $300 during her life.

The original will further provided: “I appoint Nelson P. Wheeler and Wm. E. Wheeler (my sons) for the executors of my will, and also appoint them my trustees, to whom I give and bequeath to each the sum of four thousand dollars, in addition to the aforesaid bequests to them. All the rest and residue of my estate, both real and personal, whatsoever and wheresoever situated in any of the United States, I give, devise and bequeath to my sons, Nelson P. Wheeler and Wm. E. Wheeler, or their survivors, and the heirs, executors and administrators of such survivor, in trust* first, to pay and expend all such sums as may be necessary for the support and education of my minor children, in order that they may be supported and educated in a manner suitable to their state in life, until said children may arrive at their majority. Second, I direct my said executors and trustees to divide the remainder of my estate among my children, Nelson P., Wm. E., M. Augusta and Lilla, and my said wife, Morilla, each an equal share, which I direct my executors, heretofore named, to make as soon after the said children, of the survivor of them, shall arrive at majority, and my estate, last aforesaid, disposed of to the best advantage according to the nature thereof, and when it shall be in the minds of my executors not necessary to continue longer any of my said estate in partnership with that of other persons now holding in partnership with me.”

Then followed in the will an express direction to the executors to continue said estate in partnership -with that of said other persons until the same might be fully disposed of to the best interest of said estate, and full power and authority was therein eiven to the executors to sell and convey said real estate.

The original will bears date the 21st day of March, 1866.-By a codicil thereto, under date of ¡November 20, 1882, the testator further provided that “the gift and bequest of the sum of four thousand dollars to each of my sons, William E Wheeler and Nelson P. Wheeler, in my said former will, is hereby ratified, but it is to be expressly understood that the said bequests are made to them severally as compensation for their services as executors and trustees under my last will and testament, and axe to be paid to them severally only in the event they serve in that capacity, and I do further will and ordain, that for their services as such executors and trustees they be severally paid in addition to said bequest each at the rate of one thousand dollars for each year of such service, and further, that the foregoing compensatory provisions in their behalf shall be in full satisfaction to them respectively for all such services.”

The first question, which arises is upon the claim of the legatee, Miss Godfrey, to exemption from taxation under the provisions of said act.

She is of the age of fifty-six years, and no relation to the testator; the present cash avine of her annuity, ascertained and computed in the manner directed by section 11 of said act, is the sum of $2,759.06, and, if liable to taxation at all, is at the rate of five per cent.

This legatee had never been adopted by the testator in conformity with the laws of this State, but the reason urged for such exemption is that she is “a person to whom the deceased, for not less than ten years prior to his death, stood in the mutually acknowledged relation of a parent.” Section 2 of said act.

The evidence shows that this legatee was left motherless and homeless at the age of six years; that she was thereupon taken into the family of the testator, and continuously resided there up to the time of bis death; she was educated by the testator and always supported and maintained by him; she had no income or property of her own, and no communication whatever with any of her own relatives, except to occasionally visit a brother residing near hv; she always enjoyed the same family privileges and social advantages as did the daughters of the testator; was ■ always received in company in the community where testator lived as a member of his family; testator from time to time made gifts to his children, always giving an equal amount to this legatee; shortly before his death all of testator’s children visited him, and he presented to each the sum of $1,000, giving to Miss Godfrey the same amount; he procured a policy of insurance upon his life for the sum of $3,000, in which his two daughters and Miss Godfrey were named as beneficiaries to an equal amount. The life estate to the wife of the property designated in the will as the “homestead,” is followed by this injunction: “I do hereby direct and ordain that it be and remain also a home for our said daughter Lilla, and our friend, Emma Godfrey, respectively, as long as they, or either of them, may need or desire to make that their home.”

Notwithstanding ail these facts, it is contended that, inasmuch as there was no legal adoption of this legatee by the testator, and as he designates her in his will by the term of “friend” and not that of “daughter,” she is not entitled to1 the exemption. These suggestions impress me as having but little force; the statute under which this tax is sought to be enforced is, to some extent, penal in its nature, and should receive a liberal construction in favor of those sought to he brought within its operation. The fact that testator did not speak of this legatee as a daughter is of little importance in view of all the facts disclosed by the evidence, showing conclusively that, for a long period of years, testator treated her, in every particular, the same as he did his own daughters, always actuated by the same solicitude for her comfort and welfare as for theirs. The reciprocal relations existing between testator and his own children were no better defined than those between him and this legatee; there was an utter dependence upon the one side, and all the evidences of paternal protection upon the other; she always received from the testator the support and maintenance expected from a parent, and extended to him the obedience, deference and respect due from a child. In my judgment it would he difficult to conceive of a case more clearly within the spirit and intent of the exempting portion of the statute, and it must be. held that the bequest to Miss Godfrey is not subject to taxation under said act. Matter of Spencer, 21 St. Rep. 145; Matter of Butler, 58 Hun, 400, 34 St. Rep. 189.

The report of the appraiser shows the value of the personal estate of decedent to be the sum of $146,921.80. From. this, should be deducted a specific legacy to the Presbyterian church society, of the town of Portville, of $3,000, the value of the annuity of Miss Godfrey, $2,757.90, and debts of the testator to the amount of $6,000, leaving a balance of $135,163.90, subject to taxation at the rate of one per cent., making a total tax of $1,351.63, to be paid by the said legatees in proportion to the amount of their specific shares and legacies, and no reason is urged, and, in fact, none seems to exist, why said tax should not be immediately payable.

But a more perplexing question is raised in relation to the liability of the real estate to taxation. Hnder the provisions of the statute, chapter 399, Laws 1892, the real estate, if devised directly to the sons and daughters, would not be liable to taxation, but it is urged that, by the terms of the will, there is an equitable conversion of the real estate so that the legatees take-no interest in the real estate itself, but in the proceeds derived from the sale thereof.

While it is undoubtedly true that a will must at least be of' such a character as to leave no doubt of the testator’s intent toll ave his real estate converted into personalty in order to sustain the theory of equitable conversion, Hobson v. Hale, 95 N. Y. 588, it would seem that the provisions of this will would admit of no other construction. It not only clothes the executors with certain powers regarding the control and management of the estate, but specifically gives them the power to contract for the sale of the same and execute deeds of conveyance thereof, directs the payment of an annuity to Miss Godfrey during her life, provides for the support and education of his minor children, and directs an equal division of the residuum after payment of the specific legacies among his wife and four children. This undoubtedly constitutes a conversion of the real estate. Hatch v. Bassett, 52 N. Y. 359; Power v. Cassidy, 79 id. 602; Dodge v. Pond, 23 id. 69.

While real estate which descends or is devised as such directly to the wife or children is not taxable, it is evident that if decedent makes such a testamentary disposition of his real estate as to convert it into personalty, the shares of the legatees under such a will are liable.

All taxes imposed by the act referred to are due and payable' at the time of the transfer, provided, however, “toat taxes upon the transfer of any estate, property or interest therein limited, conditioned, dependent or determinable upon the happening of any contingency or future event, by reason of which the fair market value thereof cannot be ascertained at the time of the transfer as herein provided, shall accrue and become due and payable when toe person or corporations beneficially entitled thereto shall come into actual possession or enjoyment thereof.” Section 3, chapter 399, Law's 1892.

It appears in this case that the real estate of which' testator died seized v'as very largely, if not entirely, partnership property, used and occupied by him in connection with other persons in the-prosecution of toe lumbering and tannery business, and that the actual value of such real estate or testator’s interest therein, is dependent largely upon the manner in which the same is controlled; this seemed to have been the consideration which prompted the testator to clothe his executors with discretionary power regarding the manner and time of disposing of the same, and it is by no means practicable to ascertain the value of such interest at the present, but would seem to be a very proper case for postponing the assessment and collection of the tax to which the same might be subject until the parties entitled thereto come into actual possession or enjoyment thereof.

A decree will be entered accordingly.


author: Coleman, S.

text:
    In the Matter of the Probate of the Will of Jarvis Knapp, Deceased.

      (Surrogate’s Court, Orange County,

      Filed January 12, 1893.)
    Will—Revival of bevoked.
    A will which has been formally revoked, but not destroyed, can be revived by the execution of a codicil to it without a re-execution of the will. The intermediate will is thereby revoked.
    Probate of will.
    Esmond & Ward, for petitioner.
   Coleman, S.

—Jarvis Knapp, on the 11th day of April, 1885, duly executed a last will and testament, and on the 22nd day of June, 1889, he in like manner executed another will, in which he revoked all former wills by him made. On the 29th day of September, 1890, be executed a codicil, in which it is stated:

“Whereas I, Jarvis Knapp * * * * did on April 11, 1885, make my last will and testament, being the foregoing will, etc.,” and further on “I ratify and confirm my said last will so far as it does not conflict with this codicil thereto.”

On the 29th of September, 1890, he executed another codicil in Avhich he again referred to the will of April 11, 1885. The Avill of 1885 and both codicils are all Avritten upon the same sheet of paper and were all executed with proper legal formalities. This Avill and codicils are now offered for probate.

The question presented for my consideration is whether a will Avhich has been formally revoked, but not destroyed, can be relived, by the execution of a codicil to it, without a re-execution of the will in the manner prescribed by statute.

At first thought it Avould appear that a valid codicil could not be made to an invalidated Avill; but the law seems to' be that a Avill and codicil, under these circumstances, together constitute a valid testamentary instrument.

In 1 Jar. on Wills, 188, the author states the law in England to be that “if a testator makes a will in 1830, and at a subsequent period, say 1840, makes another will inconsistent with the? former, but without destroying’ such former will, and afterwards makes a codicil which he declares to be a codicil to his will of 1830, this would set up the will so referred to in opposition to' the posterior will.”

And that view of the law is sustained by the courts of this State in the cases of Storms will, 3 Redf. 327, and Brown v. Clark, 77 N. Y. 369. In the first of these cases the surrogate admitted the will on insufficient proof as to its execution, the execution of the codicil being completely proved. In Brown v. Clark, supra, which was a case where a woman, being unmarried, executed a will and subsequently married, and after marriage duly executed a codicil to such will, it was held that any written testamentary document in existence at the execution of a will may, by reference, be incorporated into1 the will. And the will and codicil were sustained, although the will by law had been revoked by the marriage.

The effect of sustaining the will and codicil is to revoke the intermediate will, 1 Jar. on Wills, 188, even though not revoked in terms by the codicil, as being inconsistent. But in this case this is not material, as the provisions of the first will and codicils are practically the same as those of the other will.

An order may be made admitting the will and codicils to probate.


text:
    In the Matter of the Judicial Settlement of the Trustees Under the will of Henry Bull, Deceased.

      (Surrogate’s Court, Orange County,

      Filed January 20, 1893.)
    1. Executors and administrators—Assessment on bank stock.
    By the will of testator the executors were directed to hold- certain bank stock owned by him. Upon the settlement of the estate the' executors were directed to retain the stock in two banks, as trustees,, and pay the income to testator’s daughter for life and the stock on her death to her issue; if none, to certain of testator’s children. One of the bardes failed, and an assessment was made on the stockholders for the amount of the stock. Held, that the legatees interested under the-will took their interest subject to all the necessary incidents, including the possibility of such assessment, and that the trustees should sell the other bank stock to pay said assessment and distribute the balance among those entitled under the will.
    2. Same.
    The daughter died without issue, and, in the meantime, certain of testator’s children had also died. Held, that the interest of such as. died lapsed with their death, and the fund should be distributed among the survivors.
    Henry Bull died in 1863, and in 1866 his executors had a formal settlement of their accounts before the surrogate of Orange County. By the decree made on the settlement, the executors were directed to retain forty shares of Quassaic Bank stock and five shares of Middletown Bank stock, and' pay over the income thereof to the testator’s daughter, Catherine Ann Bull, during her natural life, and at her death to pay over said hank stock to her issue, if any there be; if none, then to certain of the testator’s children.
    Catherine died in June, 1892, and several of the testator’s, children named had died in the meantime.
    At the time of this settlement the Middletown Bank stock still stood in the hooks of the bank in the name of the testator. Several years ago the bank failed, and. an assessment was made upon the stockholders for the amount of their stock. In the meantime the executors had received the dividends on the stock and paid them over to the daughter, Catherine. The receiver of the hank is a party to this proceeding, and asks that the trustees he directed to pay the amount of the assessment. On behalf of the trustees it is urged that the claim is against the estate of the deceased, and that the receiver should look to the residuary legatee.
    M. N. Kane, for trustees; W. Vanamee, for receiver.
   Coleman, S.

—At the time of the judicial settlement of the accounts of the executors, in 1866, their duties as such executors with reference to the property then accounted for ceased, excepting only the duty imposed upon them by the decree to apply the balance of the estate remaining in their hands in the manner therein directed, and when that was done they had no further connection with such property as executors. They had previously advertised for creditors, and any creditor presenting a claim thereafter could recover nothing from them unless subsequently other property should come into their hands belonging to the estate. By the decree the executors were directed to re-tain certain bank stock upon a trust created by the will. Row the fact that the trustees and the executors are the same persons does not place such a creditor of the estatev in any better condition with reference to’ the trust fund than would have been the case if the executors had transferred the trust property over to other persons as trustees. Ror has such creditor any greater rights in this trust property because it remains in character the same as when held by the executors, than he would have had had such property been converted into money, and the money paid to the trustee.

Some doubt may arise as to the correctness of the latter statement because of the liability of the testator’s estate growing out of the fact that the stock still remains upon the books of the bank in the name of the testator. It must nevertheless be true, because no claim, by reason of this liability was made by any one upon the executors before the title to the property had passed by the decree from them as executors. A creditor may pursue property for the payment of his debt after it has passed from iha executor, but that is not done by means of proceedings against executors. If the receiver can compel the payment of his claim in these proceedings it must grow out of some other reason than that he is a general creditor of the testator.

These accounting trustees received the capital stock of these two banks as so much property already invested to be held upon the trust set forth in the will. If instead of receiving bank stock they had received cash and had invested it in these bank stocks and during their holding of them one of the banks had failed, rhe liability created by the ownership of the stock of the failing bank would have had to have been met by the trustees from funds derived from the sale of the other, then there would have been no residuary estate to resort to. True, they might not leg'allv invest trust moneys in such securities, but this difficulty could have been removed by tire testator directing them so to invest by his will, and that, in effect, is what was done in this case. The testator took a short cut. Instead of directing the investment of a certain sum in stock of these banks, he directed his executors to hold certain stock in which he had already invested. Such being the case the legatees interested under the will in the trust fund took such interest subject to all the necessary incidents resulting from the character of the property set apart by the testator for them, and among others was this very possibility of loss by assessment as well as on the other hand the possibility of becoming more valuable during the continuance of the trust.

I am, therefore, of the opinion that these trustees must sell the Highland Bank stock and from the proceeds pay the receiver’s claim and distribute the balance among those entitled under the will.

By the will the use of this bank stock was given to the testator’s daughter Catherine during her life and at her death it was given to her “lawful heir or heirs * * * and in case she leave no heir or heirs at law at her death surviving her, then” such bank stock was given to certain of the testator’s children. Catherine was never married and left no lawful issue. In the meantime several of the testator’s children who were given a contingent interest in the bank stock have died. The interest of such as have died lapsed with their death, they not having survived the event upon which their interest would become vested, that is, the death of their sister Catherine leaving no issue. The balance of the fund will, therefore, be distributed among those surviving Catherine.


text:
    In the Matter of the Claim of J. C. Hampton v. The Estate of Bertha Stoehr, a Minor.

      (Surrogate’s Court, Orange County,

      Filed February 1, 1893.)
    Infants—Surrogate’s Court.
    The Surrogate’s Court has no power- to settle and determine disputed claims against an infant’s estate for moneys and services alleged to have been expended and rendered in the care of the infant’s property.
    Proceeding to compel payment by a general guardian of a. claim for services rendered by a guardian ad litem in litigationsresulting in securing the property now held by said guardian.
    John R. Devany, for petitioner; George G. Keeler, for guardian.
   Coleman, S.

This is a proceeding to compel a general guardian to pay an alleged claim for services rendered and expenses-incurred by the petitioner as guardian ad litem of the minor in certain litigations which resulted in securing the property now in the control of the general guardian.

The general guardian, by her answer, disputes and denies the-justness and validity of this claim.

It is well settled that the Surrogate’s Court has no power to-hear and determine the validity of a disputed demand against' an estate of a deceased person except when made by executors- or administrators. And there seems to he the same lack of statutory power to determine as to claims against the estate of minors, except as it may he given by sections 2846 and 2472,. subd. 7, which are hereinafter referred to-.

In the case of Welch v. Gallagher, 2 Dem. 40, it was held that the Surrogate’s Court had no power to determine a disputed claim for hoard, and apparel of an infant.

In the Matter of Kerwin, 37 St. Rep. 436, it was held by the General Term, Fifth .Department, that section 2846, above mentioned, gave the Surrogate’s Court power to determine controversies upon demands for support of minors; and under section 2472 to compel the payment and delivery of money or other property belonging to wards, ánd in cases specially prescribed by law to control tire conduct of guardians. 'That was a proceeding to compel the guardian of the property to pay a third person an amount owing for the support of the minor under an agreement made with the guardian of the person; and it was there decided that it was the duty of the surrogate in that particular instance to inquire into the matter and grant or refuse the petitioner’s application upon the merits. It will be noted that the circumstances “in this particular instance” were peculiar, and it very far from establishes the general principle that the Surrogate’s Court is given, by the sections referred to, the general power to determine all disputed claims against a minor’s estate.

By section 2472, subd. 7, the surrogate is given the power to compel a guardian to pay over money and deliver property belonging to his ward; such payment or delivery must, however, of necessity be made to a party having an established right thereto in some tribunal having authority to establish that right; and the surrogate may thereby also control the conduct of guardians, but only in cases specially prescribed by law; and there surely is no law requiring a guardian to pay a claim which he disputes until that claim has been properly adjudicated'.

The demand of the petitioner in this case is not for the “support and education of the infant,” but is for money and services alleged to have been expended and rendered in the care of the infant’s property. Whether this was so done this -court is not given the power to settle and determine, and'these proceedings will, therefore, be dismissed, but without costs.


author: Adlington, S.

text:
    In the Matter of the Application of Charlotte Shepherd. In the Matter of the Application of Charlotte E. Connal. In the Matter of the Application of Eda L. Comings.

      (Surrogate’s Court, Monroe County,

      Filed March 8, 1893.)
    Trusts—Extinguishment op.
    A valid, active trust to continue during the lives of the beneficiaries named cannot be extinguished by the union in the same person of the right to the income for life and the right to the principal after the death of the beneficiary, viz.: where the beneficiary has purchased the interest of the remainderman.
    Applications by each of the above named petitioners to have a fund held for her benefit by a trustee of the estate of Temperance S. Lewis, deceased, paid over to her as the owner thereof.
    W. A. Sutherland, for petitioners; Wm. N. Cogswell, for trustee.
   Adlington, S.

The will of Temperance S. Lewis was admitted to probate in this county in 1878. It contained the following provisions, viz.: “I give and bequeath unto my sister, Charlotte Shepherd, the use and income of thirty (30) shares in the Western Union Telegraph Company for and during her natural lifetime, and after her death I give and bequeath the above mentioned stock to the Board of Foreign Missions of the Presbyterian Church in the United States of America, incorporated by the legislature of the State of Mew York. .

“I give and bequeath unto my niece’, Charlotte E. Shepherd,' the use and income of ten (10) shai’es of stock in the Western Union Telegraph Compan j, for and during her natural life, and after her death I give and bequeath the same to the Board of Home Missions of the Presbyterian Church in the United States of America, incorporated by the legislature of the State of Mew York.

“I give and bequeath unto Eda L. Shepherd the use and income of twenty (20) shares of stock of the Western Union Telegraph Company, for and during her natural life, and after her death I give and bequeath the same to the Board of Home Missions of the Presbyterian Church, incorporated by the legislature of the State of Hew York.

“Lastly, I appoint my friend, Edwin S. Hayward, of the city of Rochester, Monroe County, executor and trustee of this my last will and testament, * * * and I hereby empower him, if he should deem it for the interest and benefit of the estate or legatees, to sell and convey the same or any portion thereof, always securing the proceeds for the benefit of and purpose hereinbefore mentioned.”

The executor qualified, set apart- the bequests of stocks as directed in the foregoing bequests, and after a time sold the same under the authority given him by the will.

He invested the proceeds and paid over the income to the respective beneficiaries until he "was removed from office, when he paid over said funds to his successor in office, The Rochester Trust & Safe Deposit Company.

Each beneficiary for life, mentioned in the foregoing bequests, alleges in these proceedings that she has purchased the interest of the Board of Missions in the principal fund and its title thereto, and asks to have the money paid over to her as the owner thereof, divested of the trust. The legal question is the same in each case, and the applications will be considered together.

It is plain that the testator intended by these bequests to secure to the persons named a regular income for life, instead of giving them a gross sum absolutely, and that her intention will be defeated if these applications can be granted.

By the provisions of the will already quoted, there were created valid, active trusts to continue during the several lives of the beneficiaries named. Ward v. Ward, 105 N. Y. 68, 6 St. Rep. 798: Marx v. McGlynn, 88 N. Y. 358-375. And the legal question raised by these proceedings is whether such a trust can be extinguished by the union in the same person of the right to the income for life and of the right to the principal .after the death of the life beneficiary. In valid testamentary trusts -of personal property like these there are three estates or interests, viz.:

1. That of the person to whom the income is bequeathed for-life;

2. That of the person to whom the principal is given after - the death of the cestui que trust.

3. That of the trustee, which involves the right to the custody and legal title to the trust property during the life of the cestui ■que trust, and also the duty of keeping the same safely invested, paying over tire income regularly, and the principal upon the death of the life beneficiary, after deducting commissions.

The union of any two of these interests in one person ought not, upon principle, to extinguish the third; and the point seems to have been decided adversely to the petitioners, both by the General Term of the Supreme Court and by the Court of Appeals.

In Greer v. Chester, 62 Hun, 329, 42 St. Rep. 289, the testator, by the residuary clause of her will, created a trust to pay the income, rents and profits of her entire estate to her husband for life, and after bis death to pay one-half of such income, rents and profits to her grandson during his life, with a direction-to accumulate the other half during said grandson’s life, at the termination of which there was- a gift over of the entire estate with the accumulations to charitable corporations.

‘This residuary clause was declared invalid, and decedent intestate, except as to the trusts to pay over income during the lives of the husband and grandson. They were the only persons entitled to take the decedent’s personal estate under the-statute of distributions, and by reason of her intestacy become the owners of their respective shares thereof, and claimed that they should be put into possession of the property as such owners, divested of the trusts.

‘‘••It was'held, however, that they only' took their distributive shares subject to the trust, and that they were not entitled to the possession of an estate conditioned upon their own deaths.

Notwithstanding the union in them of the right to the income for life and the title to the principal after their deaths, the court says that the object of the testator * * * to secure the

income to the beneficiaries for life against the risks of business or improvidence should be carried out

In Asche v. Asche, 113 N. Y. 232, 22 St. Rep. 799, the will converted all the testator’s property into personalty, and gave it all to the executors in trust to pay the income', with the exception of an annuity to his mother, to his wife for life, with remainder over to his two children, who survived him. One of the children, a daughter, died intestate after the death of the testator. The widow became, on the death of this child, the owner as next of kin of said child of one-half of her estate, and claimed, therefore, to be entitled to have that much of the daughter’s part of the estate of the husband turned over to her in possession.

The court says: “It is quite clear that the widow’s interest in the trust estate did not merge into the legal estate which she acquired by the death of her daughter.

“In equity the union of legal and equitable estates in the same person does not effect a merger unless such was the intention of the parties, and justice and equity require it. * * * There could be no merger because of the existence of a valid trust with the right in the trustees to the possession of the trust fund for the purposes of management and control during the life of its beneficiary. The trust must exist so long as the widow lives, and during her life there could be no merger. She has no estate in the subject of the trust; she had an interest in it as beneficiary, but it was essential to the existence of that interest that the trust estate should be maintained.”

If these trusts had been of real estate to receive the rents and profits and apply them to the use of these petitioners for life, with remainder over, the trusts would have been indestructible, and the interest of the life tenants inalienable, under our statutes, during the continuance of their several lives. Genet v. Hunt, 113 N. Y. 168, 22 St. Rep. 774; Douglas v. Cruger, 80 N. Y. 15-19 ; Lent v. Howard, 89 id. 181. And the courts have extended the same rule by analogy to the trusts of personal property. Genet v. Hunt, 113 N. Y. 168, 22 St. Rep. 774; Graff v. Bonnett, 31 N. Y. 13.

I think the applications must be denied. Orders to that effect may he entered on two days’ notice. D


text:
    In the Matter of the Estate of William Corning, Deceased.

      (Surrogate’s Court, Monroe County,

      Filed March 28, 1893.)
    Collateral inheritance tax—Personal property out of State.
    A large part of testator’s estate consisted of bonds and mortgages; on lands in Michigan, and notes, all held by his agent in that State. Held, that such property, although actually out of the State at the-time of testator’s death, nevertheless was in his possession and passed under his will, and hence was subject to tax under the collateral inheritance tax law.
    Collateral inheritance tax proceeding.
    Edward Harris, for appellants; Raines Brothers and Abraham Benedict, for county treasurer.
   Adlington, S.

—This is an appeal from an order fixing, the amount of the succession tax upon certain personal -property of William Coming, deceased, which passed under his will to his-three children as residuary legatees.

Mr. Corning died in September, 1891. The residuary personal estate was of the value of' $130,000, of which $87,000 consisted of promissory notes, and bonds and mortgages, which, at the time of the testator’s death, were in the hands of his agent at Saginaw, Michigan; the mortgages were upon lands in. the last mentioned State.

THe appellants’ claim is that all of this personal property which, at testator’s death, was actually beyond the boundaries of this State, is exempt from the succession tax simply by reason of its situation out of the State.

The position of the appellants appears to me to be opposed both to the statutes of the state and the decisions of, the courts. Omitting such parts as are immaterial to this discussion, the statute relating to this subject in force at Mr. Coming’s death is as follows, viz.: “All property which shall pass by will .* * * from any person who may die * * * possessed of the same while a resident of this State * * * to any person or persons * * * shall be and is subject to a tax at the rate hereinafter specified. * * * When the beneficial interest to any personal property * * * shall pass to * * * * any * * * child * * * the rate of such tax shall be one dollar on every hundred dollars of the clear market value of such property * * * provided that an estate which may be valued at a less sum than ten thousand dollars shall not be subject to such tax.” Chapter 483, Laws of 1885,. as amended by chapter 215, Laws of 1891.

It must be presumed that the legislature, in the-corresponding sections of the various acts touching this subject, has used the same words in the same sense; and in section 22 of chapter 399 of the Laws of 1892, which is the latest deliverance on the taxation of legacies and inheritances, the word “property” as therein-used is declared to mean “the property * * * of the testator * * * passing or transferred to those not specifically exempted from the provisions of the act, * * *■ and shall include all property or interest therein, whether situate within or without this State, over which this State has any jurisdiction for 'the purposes of taxation.”

The State, many years ago, expressly asserted its jurisdiction to tax property of the kind here in question, in chapter 392, Laws of 1883, in the following language, viz.:

“All debts and obligations for the payment of money due or owing to persons residing within this State, however secured or wherever such securities shall he held, shall be deemed for the purposes of taxation, personal estate within the State, and shall be assessed as such to the owner or owners thereof in the town, village or ward in which such owner or owners shall reside at the time such assessment shall be made.”

Mow, Mr. Corning was a resident of this State at the time of his death. He died -possessed of these securities; that is, he owned them. The property in question passed by his will to these appellants, and it would seem, therefore, that the tax in controversy was properly imposed. The same conclusion is reached by an examination of the decisions of the courts upon the point in question.

It is an established doctrine, not only of international la.w, ’ but of the municipal law of this country, that personal property has no locality. It is subject to the law which governs the person of its owner, as well in respect to the disposition of it by act inter vivos, as to its transmission by last will and testament, and by succession upon its owner dying intestate. Parsons v. Lyman, 20 N. Y. 112; Cross v. U. S. Trust Co., 131 id. 339, 43 St. Rep. 254.

This principle of law has been quite generally recognized in the different States of the Union, and in many of them statutes have been passed providing, either through ancillary administration or otherwise, for the transmission of the personal property of a non-resident decedent to the State of his domicil for distribution according to the laws of that State.

In our own courts it is held that such property passes to the legatees or next of kin, not under the laws of this State, but according to the laws of the owner’s domicil. Matter of Tulane, 51 Hun, 213, 21 St. Rep. 191; Matter of Enston, 113 N. Y. 181, 22 St. Rep. 569.

In the last mentioned case the testator was a resident of Pennsylvania, and a large part of her estate consisted of stocks and bonds of foreign corporations. The Court of Appeals held that they were not taxable under chapter 483, Laws of 1885, because of the non-residence of the testator. The court says, however, in its opinion, that taxation under’ that act would have heen proper if the testator had been a resident of this State at the time of her death. Id. 176.

In the Matter of Swift, 50 St. Rep. 81-87, the Court of Appeals has recently decided the question in issue here adversely to the appellants, holding that tire personal property of a resident decedent wherever situate, whether within or without the State, is subject to the tax imposed by the act for taxation of gifts, legacies and inheritances.

This decision overrules, in respect to personal property, that of the surrogate- of Mew York iu the same matter. 2 Connoly, 644, affirmed at General Term, 47 St. Rep. 47, and 64 Hun, 639.

In England, where statutes have long been in force for taxing-legacies, etc., it was held in Forbes v. Stevens, L. R., 10 Equity Cases, 178, that an interest in partnership property situate in India, passing by the will of a testator domiciled in England, ° which will was proved in the last named country, was subject to the English legacy tax.

To like effect are In re Ewin, 1 Cromp. & Jerv. 151; Thomson v. Advocate General, 12 Clark & Fin. 1-18.

In considering a statute for taxing legacies and inheritances quite similar to ours, the Supreme Court of Pennsylvania says, In re Bittinger’s Estate, 129 Pa. St, 338-345: “All property of the citizen within the State may be taxed, and also all such property outside the State as is drawn to or follows in law the person or domicil of the owner, such as bonds and mortgages, money at interest, etc., no matter where situate.

The order must be affirmed, with ten dollars costs against each appellant.


author: Signor, S.

text:
    In the Matter of the Judicial Settlement of the Estate of Elnathan Wilcox, Deceased.

      (Surrogate’s Court, Orleans County,

      Filed September 1, 1892.)
    1. Surrogate’s Court—Satisfaction of decree—Acknowledgment.
    The satisfaction of a decree of a Surrogate’s Court directing the payment of money is regulated by section 2553 of the Code.
    2. Same—Certificate.
    A certificate of authority of the officer taking the acknowledgment of such satisfaction in another State, which states that such officer “was duly authorized to take" the same,” is not sufficient; but such certificate should specify that such officer was one authorized by the laws of that State to take the acknowledgment of deeds.
    Motion to file satisfactions of decree.
    Sawyer & Fitch, for executor; Whedon & Byan, for legatees.
   Signor, S.

In this matter, certificates of satisfaction of the decree which directs the payment'of money are filed by several parties. These certificates are executed out of the State and acknowledged before a notary public, and have attached thereto a certificate of the county clerk which certifies that the officer tailing the acknowledgment is a notary public duly commissioned, etc., and “is duly authorized to take the same,” but does not certify that the officer was authorized by the laws of the State where taken io take the acknowledgment of deeds.

The question has arisen so frequently in this court as to the proper manner of satisfying a decree, that I deem it important to review the provisions of the Code and the practice, in the matter of the satisfaction of decrees of this nature in the Surrogate’s Court. The decree must be satisfied as if it was a judgment of record. Code of Civil Procedure, section 2553. McClellan’s Surrogate Practice, p. 518 (3rd ed., 1888), gives Laws of 1867, chapter 782, section 9, as the authority for the satisfaction of a decree, but this act was repealed by the general repealing act of 1880. That act provided that a decree might be satisfied, on filing a release “acknowledged or proved as now required as to a conveyance of real estate-.” It has been suggested that section 3553 applies only to decrees that have been docketed in the county clerk’s office and become practically a judgment of the Supreme Court. It will be found, however, that this section contains the only provision in regard to such satisfactions, and in their notes the codifiers say: “A clause in the last sentence of this section supersedes Laws 1867, chapter 782, section 9.”

From this it appears that the intention was to make the clause applicable to all such decrees, whether docketed or not Section 1260 of the Code provides for the satisfaction of a judgment, and the last part of the section provides that, when not acknowledged by the clerk or his deputy, the satisfaction “must be acknowledged or proved and certified in like manner as a deed to be recorded in the county where it is filed.” The provisions for the taking of acknowledgments of such instruments outside of the State are found in Laws 1848, chapter 195, sections 1 and 2, as amended by Laws 1867, chapter 557. (See 3 Birdseye’s R. S. 2550, sec. 8.) This act provides that “the proof or acknowledgment of any deed, or other written instrument required to be proved or acknowledged, in order to entitle the same to be recorded or read in evidence, when made hy any person residing out of this State and within any other State or Territory of the United States, may be made before any officer of such State or Territory authorized by the laws thereof to take the proof and acknowledgment of deeds.” The following section provides that the same may be recorded or read in evidence when the proper officer attaches his certificate “specifying that such officer was, at the time of taking such proof or acknowledgment, ' duly authorized to take the same.”

The certificates before the court are in a form frequently used, and certify that the officer before whom the annexed instrument was acknowledged was a notary public, etc., and “was duly authorized to take the same.” If the instrument was a deed, this would be in effect certifying that he was, by the- laws of that- State, authorized to take the acknowledgment of deeds, but it does not follow that, because by the law of the foreign State he was authorized to take the acknowledgment of the satisfaction of a decree in Surrogate’s Court, he was authorized to take an acknowledgment of deeds. Nor will this be presumed. Bowen v. Stilwell, 9 Civil Pro. 281.

It has been suggested.that these certificates follow the words of the statute, and therefore are sufficient, but it will be observed that the statute does not say certifying that he was authorized to take the same, but "specifying that he was authorized to take the same.” It is not to be presumed that the county clerk of a county, outside of the State, is to certify that, by the laws of the State of New York, an officer of his State was authorized to take acknowledgments, but be may specify enough to warrant the court here in determining that he had the authority. This, authority must be derived from the laws of this State, Ross v. Wigg, 34 Hun, 192.

The fact that he was authorized by the laws of the State where he resides to take acknowledgments of deeds would not authorize him to take tire acknowledgment of these instruments. His entire authority, so far as his acts in this respect are concerned, is derived from our statute. The statute of this State might have provided that any attorney residing in that State might take the acknowledgment. The specifying required by the clerk is, that the officer taking is one that is authorized by the laws of that State to take acknowledgment of deeds, as, in the other case, it would specify that the person taking was an attorney residing in the State, while, on the other hand, the certifying that the officer was authorized by the laws to take acknowledgment to a satisfaction of a judgment does not specify him as an officer authorized by the laws of the State to' take the acknowledgment. For this reason, that he is not specified, designated or pointed out as one having the required authority, the satisfactions cannot be filed until they are returned and the clerk .specifies that the officer taking the acknowledgment was authroized by the laws of that State to take the proof and acknowledgment of deeds.