author: Kennedy, S.

text:
    In the Matter of Proving the Last Will, etc., of Lorenza M. Sheldon, Deceased.

      (Surrogate’s Court, Madison County,

      Filed September 23, 1891.)
    1. Will—Proof—Legacy to draftsman.
    Where a testator has that mental and physical vigor which is essential to make a valid will, it is not the law that the draughtsman of a will, even if he holds confidential relations to the testator, cannot be his executor or take a legacy thereunder, nor can fraud be presumed where the will contains such provisions, nor evidence be required to show that it was made freely, without fraud or undue influence.
    2. Same—Undue influence—Confidential relations.
    A mere agency to transact business in relation to investments in another State, where the principal takes little or no part in its management, does not create business relations of that confidential character from which will ordinarily arise any legal presumption of undue influence in the making and execution of a will drawn by the agent and containing a legacy to himself.
    S. Same—Evidence.
    On probate of a will, it need not be shown that the testator 'gave directions for making it, or that it was read to or by him. Knowledge of its contents will be presumed from his having signed it, and his declaration that it is his will.

      4. Same.
    Testatrix, who had no ancestors or descendants surviving, by her will, gave to certain nephews and nieces, with whom she had little communication, legacies of $500 and over, and the balance of her estate to a nephew who drew her will, his adopted son and grand-nephews and grand-nieces, children of a niece, share and share alike. Held, that the inequality of the legacies did not show undue influence, and that the will should be admitted to probate.
    Probate of will.
    Joseph Mason and John E. Smith, for proponent; Hopkins & Aldrich, of Aurora, Ill., and James S. Sherman, for contestant.
   Kennedy, S.

The testatrix was a resident of Brookfield, in this county. The will was executed at the house of her nephew, Truman H. Day, at Aurora, Ill., she at that time being on a visit to him at that place. She left property valued at nearly $40,000, substantially all of which was represented by securities in the hands of said Day, who, for fifteen years previous to her death, had acted as agent in making investments for her, rendering annual statements to her and remitting such sums as she desired for her personal use. The will was executed on the. 19th day of October, 1886, and the testatrix died on the 24th day of December, 1890, at the age of eighty-four years. At the time the will was executed she was in the enjoyment of her usual health, and so continued until a short time before her death. She was a woman of ordinary intelligence, had a clear understanding of her business affairs, and had the legal capacity to make a will and dispose of her property with a thorough knowledge of its amount and character and of her relation to those who would have been her heirs if she had died intestate. Her husband was dead, and her only heirs and next of kin were a sister and a number of nephews and nieces. By her will, after providing for her funeral expenses, she gave legacies to various nephews and nieces, none less than $500, amounting in all to the sum of $14,000. After which she gave her residuary estate of $21,000 to said Day, his adopted child, and eight grand nephews and nieces, children of her niece, Sarah H. Jones, share and share alike.

All the formalities which the law requires were observed in the execution of the will, hut its validity and proper execution are challenged by Solumnus D. Seaman, one of her nephews, residing at Aurora, Ill., on the ground of Mrs. Sheldon’s alleged incapacity to make it; and also on account of the alleged fraud and undue influence of said Day in the preparation and execution of the will. On the trial there was no evidence from which the lack of testamentary capacity could be inferred, nor any affirmative evidence of undue influence; but notwithstanding this, the contestant insists, because it appears, from the evidence the will was drawn by Mr. Day while she was at his house, and he was made an executor of, and a legatee under the will, and further, that for many years he had acted as her agent in the management of her estate in Illinois, that the will was the product of fraud and undue influence on his part.

•The contestant claims that, under such circumstances, the proponent must give other than the usual evidence of the witnesses to the will, before it can be admitted to probate; that it must be shown the testatrix gave directions for its drafting, which were obeyed, or that it was read to or by her before its execution, and bases this proposition of law upon the ground that where the writer of a will has confidential relations with the testator, and the will makes him an executor or legatee thereof, such a presumption of fraud and undue influence arises that the ordinary proof of the execution of a will thus made does not rebut or outweigh such legal presumption; that the proponent must show, in addition thereto, that the will was made freely, without fraud and undue influence, and that the proponent should establish by affirmative evidence that none of the provisions of the will were dictated, suggested or brought about by his instigation.

The rule of law which the contestant invokes applies only to that class of cases where by reason of sickness, old age; mental and physical condition or other circumstances, the testator had not that health, intellectual vigor, independence of character, freedom of action and judgment to guard his rights and protect himself and his estate from the stealthy tread of those who Avould illegally take Avhat he had designed for others. We shall hold that Avhere a testator has that mental and physical vigor which is essential to make a valid will, it is not the law that the drawer of a will, even if he holds confidential relations to the testator, cannot be his executor or take a legacy thereunder; nor is it the laAV that if the attorney, physician or priest of the testator draAv a Avill in which there is a legacy to himself, that such will or such legacy is presumed to he fraudulent, nor in such a case is fraud presumed in aid of those who seek to overthroAv the will; nor does this fact, in the absence of evidence, warrant the presumption that the testatrix Avas unduly influenced , or was improperly or fraudulently controlled in making her will. All that can be legally claimed for such a state of facts is that it may or may not be a suspicious circumstance; but whether it is or not depends upon the facts of each case.

The fact that a beneficiary is the attorney, guardian or trustee of a decedent does not of itself alone create a presumption against a testamentary gift; neither is it presumed to have been procured by fraud and undue influence in every case and under all circumstances; nor does that single fact call upon courts to pronounce against a will thus executed unless additional evidence is produced to prove knowledge of its contents by the deceased. It is only in that class of cases where the testator excludes the natxiral objects of his bounty that a will in favor of his attorney, physician, priest, is looked upon by courts with suspicion. To invalidate a will on the groxxnd of undue influence, there must be affirmative evidence of the facts from which such influence can be inferred. It is not sufficient that the party benefited by a will had the motive to exert such influence; there must be evidence that he did exert it, and so control the actions of the testator either by importunities which he could not resist, or by deception, fraud, or other improper means, that the instrxxment is not really the will of the testator. If a contestant alleges fraud and undue influence, or any other defense, it is his duty to prove it, becaxise fraud is never presumed from the existence of an opportunity to commit it. It must be established by such evidence that the influence of wrong doing follows as a natxxral and unavoidable result, and it is only so established when sxxch facts are proven that no other legitimate conclusion can be drawn. Justice to testators, heirs and legatees does not demand sxxch a rule of law as the contestant seeks to maintain, nor is there any necessity for its existence. If such were the law, testators woxxld, many times, be debarred the aid of an attorney, relative or other person in whom they had the most implicit confidence, and whose legal ability, knowledge of the testator’s affairs, or other circumstances made it especially necessary to have sxxch person dx*aw the will, provided he desired to remunerate him for services rendered or to be rendered, or for faithfulness -to his interest, or from any other proper motive wished to give him a legacy. To say that every lawyer, doctor,, minister or other person holding confidential relations with a testator, who draws a will with a legacy to himself, is, from that simple fact alone, presumptively dishonest, his motives and his acts presumptively fraudulent and wicked, and the will presumptively the product of undue influence, is to assert a proposition of law which is no-t now, never has been, and probably never will be the law of this State.

The thief, the burglar and the assassin is each presumed to be innocent until the court, upon legal evidence, and after a fair and impartial trial, has imposed the sentence which the law demands for his crime. But, if the law is as the contestant-claims, a reputable citizen known far and wide for his ability and unquestioned moral character happens to be on confidential terms with a testator, who clearly and thoroughly understands his own business, and appreciates his duty to others, draws a will for him, he is denied the legal rights given to every criminal, and must prove that he is not guilty of any wrongdoing or fraud, and undue influence, before there is any evidence that he has violated any law whatever or done injustice to any one. The law presumes every person to be of good character, and he is not to be deprived of the benefit of this legal presumption because he happens to be an attorney, physician, minister, confidential friend, adviser or business manager, and draws a will with a legacy to himself, which a competent testator knowingly, deliberately, intentionally, voluntarily gives to him; nor under such circumstances ought- he to he compelled to go into court and by witnesses establish the fact that he is not a scoundrel, when there is not the slightest proof that he has done a wrongful act towards the testator, or any one interested in his estate. The presumption which the court is asked to recognize makes no allowance for the character of men who draw such wills; all. are alike condemned, irrespective of their known integrity, their prominence in social or business affairs, their private or professional standing; makes no allowance for tike age, mental and physical condition of the testator, the amount of his property, the nature of the relations existing between him and his heirs, the financial condition of his relatives, their good or bad character; makes no allowance for the fact that if the beneficiary writing such a will is a near relative who would take a considerable share of the estate if there were no will, the same presumption which might arise against a stranger is not applicable to him. Courts do not thus quickly, easily and unnecessarily rob the drawer of a will of his good name and fame because somebody alleges or imagines his confidential relations with the testator were influential in obtaining a legacy to himself. The dead are not here to explain their motives or their acts, and the law in this State, under some circumstances, prevents the legatee and writer of the will from disproving the insinuations of the accuser by his own evidence. Under such circumstances it is better, more in accordance with the procedure of courts in other judicial proceedings, to wait and hear the evidence before rendering judgment.

If the draughtsmen of wills could choose their own time and occasion, had opportunity, and it were possible to surround them-serves with witnesses who would be sure not to die until the will was offered for probate, such a presumption of law upon the proof of wills might be harmless; but in view of the fact that this cannot be done, it would seem but fair and just to those who draw Avills of competent testators, with legacies to themselves, if they are persons of good character, to presume they have discharged their duties toward the testator, his heirs or legatees, fairly and honestly, and are not presumptively guilty of fraud and undue influence.

“ Though in the trade of war I have slain men, Yet do I hold it very stuff o’ the conscience To do no contrived murder. T lack iniquity, Sometimes, to do me service.”

Perhaps the suggestions we have made are unnecessary, for the reason that the legal presumption Avhich the contestant urges applies only to cases of contracts and gifts inter vivos, and does not apply in all its strictness to wills. The distinction between tire rule affecting testamentary gifts and gifts inter vivos and contracts is well settled by American and English courts, and the law held to be that a will is not invalidated by the mere fact that it was written by the attorney, agent, physician, priest or other confidential adviser of the testator, who is himself a beneficiary. It is in courts of equity alone that if a gift or contract is made in favor of him who holds a position of influence that courts cast upon him the burden of proving that the transaction was freely conducted, as if between strangers; that tire weaker was not unduly impressed by' the natural influence of the stronger, or the inexperienced overreached by him of more mature intelligence. But in case of a legacy under a will, to cast upon the legatee, by reason of the relations he sustains to the testator, the burden of showing how the matter came about, and under what influence or with what motives the. legacy was made, what advice the testator had, or by whom given, in many, if not in most cases, could not possibly be discharged. The natural influence of a person holding confidential relations with another may be lawfully exerted in his behalf to obtain a will or legacy, provided the testator thoroughly understands what he is doing and he is a free agent, and the volition of the testator, though biased and impressed by the relation in which he stands to the legatee, is not overborne and subjected to the domination of another.

Again, there is no presumption of fraud and undue influence, because there were no such confidential business or social relations existing between Mr. Day and the testatrix as the law recognizes as having a wrongful or controlling influence upon testators. Mrs. Sheldon sometimes went to visit him, and he some years came east to visit her and other relatives. She had never lived with him, her home was with her niece in this State, so that she saw him seldom and only for short times; for these reasons the opportunity for that, constant and intimate association, that silent but effective influence which sometimes operates upon the mind of a testator, did not exist. The only pretense that there were any confidential relations between them which might possibly be the basis of improper influence arises from the fact that Mr. Day had charge of her investments in Illinois, and paid to her such portions of the income as she desired.

-“What drugs, what charms, What conjuration, and what mighty magic”

the contestant claims Mr. Day mads use of does not appear either from the evidence or the argument of his counsel other than from the facts above stated. To be the agent of another in some distant State for such a purpose does not of itself create those confidential relations which are influential in testamentary dispositions of property. It might with as much propriety be said that the directors of a savings bank, which receives and invests the money of its depositors, sustain such confidential relations to them that if a director drew a will for one of them with a legacy to himself, this fact alone would be presumptive evidence of undue influence and would require more than the statutory proof to admit the will to probate. A person who has legal business must ordinarily, and sometimes of necessity, employ an attorney, a person may be sick or injured and require the services of a physician or surgeon, in both of which cases there must of course exist relations of confidence and dependence which do not arise when one is simply the agent of another in regard to financial investments or business operations. In' the one case the employer is wholly dependent upon the ability, advice and good judgment of his physician or attorney, while in the other the agent must conform to the wishes and judgment of his principal. In one case the relation is a matter of necessity; in the other it is a voluntary matter. A mere agency to transact business where the principal takes little or no part in its management and which from its nature does not require intimate and confidential relations for its performance, would not be likely to be the origin of, or be productive of, that fraud and undue influence which the law condemns in the making of wills; hence, we shall hold that the business relations existing between Mr. Day and the testatrix were not of that confidential character from which would ordinarily arise any legal presumption of undue .influence in the making and execution of Mrs. Sheldon’s will. But if it were admitted his business relations were confidential, so is that which an attorney sustains toward his client, yet one’s own lawyer has always been considered the most proper person to write his will, and it is regarded as an unfavorable circumstance when he is. passed by and another person employed for that purpose, and a like reason would seecm to make it extremely wise and proper and legal for Mr. Day to draw the will in question.

But the contestant also claims that the proof of the will and its execution were insufficient to admit it to probate, for the reason that it was not shown that the testatrix gave directions for making the will, or that it was read to or by her before its execution. If this were sound law, the legislature of this State should be called together at once for the purpose of passing some statute by which such evidence could be perpetrated when once a will has been executed. If such be the law, a large proportion of the wills now in existence could not be admitted to probate, because the person who drew the will, or those who may have been present at its execution, or knew of the facts which the contestant insists must be proven in order to probate a will, might be dead or absent, or incompetent for many reasons to testify; in a word, the proof suggested could not be obtained. Such a law would compel a testator to provide some legal machinery, by which, at the proper time, it might be made to appear to the surrogate that he knew the contents of the will at the time of its execution even if no obieetions were filed against it ,because the surrogate must he satisfied that a testator knows the contents of his will before it can he probated. But in order to avoid the objection that tbe testator is not shown to have knowledge of tbe contents of his will, tbe law presumes that he is of perfect, mind and memory; that he had legal capacity to make a will; that he had knowledge of, and assented to, all of its provisions; that, all the facts necessary to- its validity existed at the time it was made; that its execution was valid, if the legal formalities are apparent, upon the face of the instrument, or are proven before the surrogate; that in all respects it was designed, prepared and executed according to law.

The signature of a testator to his will ought to be and is regarded by the courts as evidence that it is his deliberate act, and that he would not have placed his name to- an instrument which does not express his testamentary intention, and from this fact alone he is presumed to have known its contents, to have understandingly executed the same, and been aware of the legal effect thereof. By means of this legal presumption courts arc enabled to admit wills to probate, thereby protecting the rights of heirs and legátees, and distributing the estate as the testator requested," which otherwise could not he done because of the inability of parties interested to prove, by living witnesses, or circumstances, that the testator knew anything about the contents of his will. Civilization makes legal presumptions necessary in coui’ts to establish a fact, and in a proper case they are as satisfactory evidence as if witnesses had testified to the same.

In this case, the witnesses to the will found the testatrix at her nephew’s house with the will drawn and in her hands and ready for its execution; it was then signed by the deceased in their presence, and attested by them in her presence. It was spoken of by her as her will, and such she declared it to be, and it can hardly he supposed that a person of her intelligence and good health at that time would have executed a paper without knowing its contents, so that it may safely and legally be inferred that she was acquainted with the contents of the paper she signed. More than this, she liad sent for these particular persons for witnesses to her will because they were old acquaintances and she preferred them to strangers, and so told them. This fact would indicate that she knew the contents of her will, and thoroughly understood what she was about- to do, for the. courts have held it to he a wise precaution, and a very proper thing to do, for a testator to invite his old and intimate acquaintances to witness the execution of his will.

But while the law indulges in the legal presumptions to' which we have referred, the absence of incapacity, of fraud and undue influence are very apparent from the provisions of the will, its manner of execution and the relation of the testatrix to the legatees.

As she had no children, and her blood flowed in the veins of no descendants, she was under no legal or moral obligation to consider her relatives entitled to her bounty. Being of sound mind, she had the undoubted right to dispose of her estate by will to whomsoever she chose. Her kinsmen had no vested rights therein and no interests to be protected by her. It is natural and reasonable that the property of a father or mother should go by will or law to their children or descendants. The fact that the legislature of this State has arbitrarily said that the ^property of an intestate having no living ancestor, children or descendants, shall go to collateral relatives, did not compel the testatrix to recognize them as having an expectant right to her property which she was in duty bound to take into consideration in disposing of her estate. As she had been under no legal obligations to support them while living, she was under no moral coercion or duty to provide for them after her death. She therefore had the right to use her own judgment, consult her own preferences without regard to whether such disposition of her property as she might malee would be approved or disapproved by others. The natural objects of a testator’s bounty are not always those whom the statute declares shall take the property of an intestate, hut may depend upon the life they have lived; their habits, character, associations, their relations to, or association with the decedent, their wealth or their poverty, their success in business or their lack of it; their family and other social relations, their nearness to or remoteness from the testator’s residence, and various other circumstances which might naturally and properly cause a testator to make, apparently, an unequal distribution of his estate. Some one who has acted the part of a dutiful son or daughter, or friend, may naturally, reasonably, justly be the natural object of a testator’s bounty in preference to relatives. The lengthening and weakening ties of blood may be severed by time, by the birth and growth of affections which seek another channel for their possession and enjoyment, or by other causes. The structures, which human hearts may rear in early life will sometimes go to decay and be abandoned for castles which other hearts may build, and the stepping stones to which, though unseen by the passer by, may echo a welcome tread to listening ears and waiting hands within.

It may be very plausibly argued that inequality of legacies among collateral heirs equally related is no evidence of fraud and undue influence in making a will; that a testator without ancestors or descendants living is not obliged to inventory Ms assets and carefully take into1 serious and thoughtful consideration the number of his distant relatives and weigh with nice precision the extent of the pleasure or benefits he has received from each, or the quantity of affection or gratitude each has shown him; that as against such relatives he has the right to indulge in such regard, such prejudices or caprices, such likes or dislikes, as he sees fit to entertain; that he may consider any one, or all, or none at all, entitled to his property; that he may give to, or withhold from, them because of any' motive or reason he may permit to influence him, without being legally subjected to the charge of incompetency, or of being unduly influenced, or of being required to apologize or explain to any one; that while such relatives have the legal, they have not the meritorious, standing in courts which entitle their pretended claims against a testator’s will to the same critical and favorable consideration as if they were the children or descendants of the deceased, or were persons with whom he may have lived for many years; on whom he may have been dependent in sickness and health, and for whom he would be under those obligations which affection, gratitude, considerate helpfulness and intimate daily associations ordinarily bring into existence; so that in this case it seems entirely natural and reasonable that Mrs. Sheldon should give the larger portion of her residuary estate to her eight grand-nephews and nieces, many or all of whom had been born beneath her own roof, been her constant companions from babyhood to manhood and womanhood, in whose happiness and prospects in life she must have taken a more than kindly, a motherly interest, whose daily lives with their joys and sorrows, their tears and laughter, must have been a part of her own existence, coupled to and inseparable from it, that those with whom she had so long lived, and by whom she expected to- be watched and tended when

“Age sat with decent grace upon her visage And worthily became her silver locks,”

and the dawn of another life was breaking over her horizon; that those hy whose hands she expected to be buried, where the rising and the setting sun might cast its lights and its shadows alike, and at the same time upon her grave and the home and children she had loved; that such as thesé should be the natural objects of her larger and more liberal bounty, rather than to others, whose devotion to- her interests, her comforts, her happiness and the performance o-f all those kindly offices so- dear to the aged, she had never observed.

So, too, it was natural and reasonable that she should devote a large sum to provide a burial place and monument for herself and for her niece, with whom she had long made her home. Both of these legacies are of a character and amount, $6,000 in all, which she alone, and not Mr. Day, would be likely to suggest, and in which she would ordinarily take a deep interest at her time of life. They are such as would not be put into her will if she had been under his control, ready at all times to do his bidding and yield to selfish and miserly suggestions from him in o-rder that he might receive a larger portion of her property. Wiser than many who rely upon affection or friendship not to leave their graves unmonumented and unremembered; knowing that wealth descended or devised is sometimes parsimonious of its gifts to the dead; aware that forgetfulness and oblivion often come quickly to the departed; with a judgment which made no mistake, she provided the means and directed that to be done which should make her name as enduring as the marble or the granite whereon it should be written; although it might vanish from the memory of the living, thereby taking away all discretion which her executor might otherwise have as to the amount which should be devoted to burial purposes. This provision would seem to have been designed by one who, if fraud was attempted, disregarded it; if undue influence was-exerted, overcame it; if greed and selfishness sought to give shape to this testamentary bequest they were powerless and harmless, thus leaving her in full possession of that judgment, that freedom and independence which testamentary capacity requires.

The absence of wrongdoing is also shown by the fact that if Mrs. Sheldon had died intestate, Mr. Day’s share of her estate would have been $10,000, whereas by the will it is only $3,200, nearly seven thousand less than he would have had if there had been no will. If the testatrix was wholly under his control, willing to subscribe to any will which Mr. Day might impose on her, provided he was scheming and contriving to get as much of her properly as possible, and had such influence over her that she would yield to any suggestion of his, it seems extremely probable that he would have so drawn the will as to increase, rather than diminish, the amount he would have had if there had been no will, or would have drawn such provisions that the larger portion of the estate would have fallen to him. All that was done seems to have been to his disadvantage, and if he made use of fraud and undue influence to procure the will, he was not sufficiently shrewd to be a gainer by his own wrong.

Her legacies to the contestant, his brother and sister, of $500 each, do not seem to be the result of anything save the ordinary reasons and influences which make discriminations among relatives of an equal degree. One nephew and niece live in California, the other in Aurora, Illinois, and the evidence does not disclose that they ever- wrote to her or she to them, or that' either nephew ever visited her hut once in this State, nor does it appear that they or the niece ever called upon her when at Aurora, or ever showed her the slightest attention whatever. It does not appear that either of them ever aided her in accumulating or caring for her property, or in any way assisted her or associated with her in such manner that she -would be likely to- have the same degree of attachment for them that she had for Mrs. Jones and her children, with whom she had lived so long and expected to live thereafter. And so of Mr. Day. For fifteen years he had acted as her agent in managing her property; there were almost yearly visits between them, and she undoubtedly felt that for his care of her estate, and his success in largely increasing it, over and above her support, he was entitled not only to a considerable remuneration for his services and his faithfulness to her interests, but to a larger sham of her residuary estate than the Seaman heirs, to whom she was not under the slightest obligations for anything they are shown to have done- for her either in a business way or socially. It is not improbable, but quite possible, that this lack of recognition of their old aunt, either by letters, or visiting or otherwise, if such was the fact, may have led her to think that while she remembered them in her will, the legacies were quite commensurate with any services they had rendered, or any attention they had shown her, and that for these reasons they were not entitled to share equally with those who nearly all their lives had contributed their services and their society to her, and made their days and year’s subordinate to her claims upon them for all that her age, her health, her comfort, her needs and her happiness required. Thick waters show no images of things, and it may he when she thought of disposing of her property, she saw not her image and superscription reflected upon one of tire ancestral streams.

Nothing would seem- more natural or business like, than for Mrs. Sheldon to have Mr. Day draw her will, as he was familiar with her property, had transacted her business, and knew her relations with all her heirs. It would have been unnatural and contrary to the ordinary manner of doing such business that she should have gone to a stranger under such circumstances to have her will drawn. It is sometimes regarded as evidence of incapacity, and sometimes that fraud and undue influence exist, when a testator abandons those in whom they have always had the utmost confidence in the transaction of their legal and other business, and seek among strangers for that advice and assistance which is sometimes required in drafting wills. For the same reasons it was proper she should name Mr. Day as the executor of her will.

A decree will be entered admitting the will of Lorenza M. Sheldon to probate.

(Note.—Surrogate’s decision affirmed by General Term without opinion, 65 Hun, 623; affirmed by Court of Appeals without opinion, 141 N. Y. 559; 57 St. Rep. 866.)


source: Caselaw Access Project

author: Ransom, S.

license: Public Domain

text:
    In re Wood’s Estate.

      (Surrogate’s Court, New York County,

      October 28, 1891.)
    1. Administration C. T. A.—Legatees.
    As legatees are, under Code Civ. Pro. section 2643, subd. 2, each entitled to apply for letters c. t. a. without citing the others, an application by a legatee to revoke suchletters granted to another legatee will be denied, when the surrogate who granted such letters did not, in his discretion, deem it advisable to have everybody interested in the estate notified of the application.
    ' 2. Same—When males preferred.
    Other things being equal, the court, in a case where there are opposing claims, will issue letters c. t. a. to a male in preference to a female, although the preference of males to females in case of intestacy 4 Rev. Stat. 8th ed. p. 2552) was as to administration c. t. a., abolished by the enactment of Code Civ. Pro. section 2643, substituted for 3 Rev. Stat. (6th ed.) p. 74, providing for the issuance of letters with like restrictions as in cases of intestacy.

      3. Same—Who is a legatee.
    One is a legatee entitled to apply for administration e. t. a. (Code Civ. Pro. section 2643), although not named in the will as a legatee, when she was entitled as an heir of a legatee named in the will to a share in the fund thereby bequeathed.
    Proceedings by Joseph S. Wood to revoke letters of administration c. t. a. of Samuel Wood, deceased, issued to Jennie E. Wood, and that same be issued to applicant, on the ground that he was named as a legatee in the will, but that she was not expressly named as a legatee, although she took an interest under the will. Both parties claimed under subdivision 1 of paragraph 2 of the will, which was as follows: “I hereby direct and require my executors to set apart out of my estate * * $15,000, to pay the income thereof semi-annually to my cousin Stephen Wood, during his natural life, and, after his decease, then to pay the income of said $15,000 to the children of said Stephen Wood who shall be living at the time of his death, and to the issue of such of them as shall be dead, as follows: The income of $5,000 to each of his sons, Martin and Joseph Wood, and the income of $2,500 to each of his daughters, Elizabeth Jones * * * and Mary Baldwin, * * * during the natural life of his son, said Joseph Wood; and, on the death of the said Joseph Wood, I give and bequeath the said principal sum of $15,000 as follows: $5,000 to said Martin Wood and his heirs, $5,000 thereof to the heirs of said Joseph Wood, $2,500 thereof to the said Elizabeth Wood and her heirs, and $2,500 thereof to said Mary Baldwin and her heirs. But, if either of the above named shall die without lawful issue before the death of the said Joseph, them tire share of such deceased legatee shall be equally divided among such' of the children of Stephen Wood as shall survive, and their lawful issue, per stirpes.”

    Petitioner was Joseph Wood, who was described in the will as the son of Stephen Wood. Martin Wood, also named in the will, had died, and Jennie E. Wood, his daughter, who thereupon became entitled to share in the income bequeathed to him during the life of Joseph Wood, and who was entitled to share in the principal upon the latter’s death, and who was likewise entitled to share in the principal sum bequeathed to Mary Baldwin if the latter died before Joseph Wood, claimed that she was a legatee under the will, although her name did not appear as such therein.
    Treadwell & Catlin, for applicant; Magner & Hughes, for respondent.
   Ransom, S.

Application to revoke letters of administration c. t. a. upon the ground that petitioner has a right to> the letters prior to that of'the respondent, and that they were issued to the latter without notice to the former. The question is, has petitioner such prior right ? Section 14, pt. 2, ch. 6, tit. 2, art. 1, 3 Rev. Stat. (6th ed.) p. 74, for which section 2643 of the Code of Civil Procedure was substituted, provided for the issuance of letters of administration c. t. a. first to legatees, “then to the widow and next of kin of the testator, or to any creditor of the testator, in the same manner and under the like regulations and restrictions as letters of administration in case of intestacy.” Among those restrictions and regulations is that which prefers males to females in case of intestacy, and is contained in section 28, art. 2, tit. 2, ch. 6, pt. 2, of the Revised Statutes. 3 Rev. St. (6th ed.) p. 78; 3 Rev. St. (8th ed.) p. 2552; Cottle v. Vanderheyden, 11 Abb. Pr. (N. S.) 19. This section is still in force. Section 14 of the Bevised Statutes was repealed by chapter 245 of the Laws of 1880, and section 2643 of the Code of Civil Procedure enacted in its stead. This section of the Code establishes the order of priority in which parties are entitled to letters of administration c. t. a., and makes no discrimination between males and females. The order is: First, to one or more of the residuary legatees who are qualified to act as administrators; second, if there is no such residuary legatee, or none who will accept, then to one or more of the principal or specific legatees so qualified, etc. Each of the parties to this proceeding is a legatee under subdivision 1, par. 2, of the will of the testator; both being recipients of the income of trusts, and the respondent being also entitled to share, in a certain event, in the funds held in trust for the petitioner and Mary Baldwin, respectively. In re Wood’s Estate, Surr. Dec. 1889 ; p. 120; In re Wood, 5 Dem. Sur. 348; In re Roux, Id. 523; Estate of Thompson, 33 Barb. 334, affirmed 28 How. Pr. 58. They are both legatees, within the second subdivision of section 2643, and each was at liberty to apply for letters without citing the other. Section 2644, Code Civ. Pro. Had he deemed it advisable, the surrogate could, in his discretion, have required everybody interested in the estate to be notified of the application. Section 2643, Id. He did not do so in the present case, and the petitioner can have no ground of complaint for the omission. If the petitioner had been a party to the proceeding in which the letters were issued, it would have been within the discretion of the court to grant them to either or both the parties, as the circumstances would warrant. Other things being equal, the court, in a case where there are opposing claims, would prefer the male to the female in issuing the letters. Application denied.

(Note.—Affirmed by General Term, 53 St. Rep. 804.)


author: Spring, S.

text:
    In the Matter of the Judicial Settlement of the Account of Christopher C. Crosby, Ex’r of Walter Essex, Deceased.

      (Surrogates Court, Cattaraugus County,

      Filed, November 10, 1891.)
    1. Gifts causa mortis—Delivery.
    Testator, who had no wife or children, held a note of the executor, who was an intimate friend. During his last illness he asked his niece to bring his papers, and gave her this note, telling her that he had given it to Crosby; that he knew of it, that she was to keep it, and that he did not want his heirs to know anything about it. Held,
      that this constituted a valid gift causa mortis of the note to the executor, and that there was a sufficient delivery.
    2. Same—Collateral inheritance tax.
    The executor received said note subject to the collateral inheritance tax.

      3. Executors and administrators—Interest.
    Where an executor commingles the avails of the estate with his own funds and uses them for his personal benefit, he is- chargeable with interest.
    Judicial settlement of accounts.
    C. D. Van Aernam, for executor and claimant; N. M. Allen, for contestants.
   Spring, S.

The testator held a note of $1,000 against the executor which he had owned since 1876.

The executor claims this note as a gift from Mr. Essex, and asserts his ttle thereto in the inventory filed and does not include it among the assets of decedent in his account rendered in this proceeding.

Objections are presented to the account by the legatees for this omission, and the validity of the alleged gift is thus brought in controversy.

The testator at the time of his death was well along in life, without wife or children, and an intimate friend of the executor, his -alleged donee.

His niece, who was the only witness as to the alleged present, had been his housekeeper for several years, an devidently was trusted and appreciated by him, for he made her his beneficiary to the amount of $1,000.

Mr. Essex was taken with hemorrhage of the lungs in the village of Franklinville, was removed to a hotel and remained there continuously until his death, which occurred in about two months after the first attack.

He realized from the first that his recovery was impossible. He had a farm and three or four thousand dollars in securities.

A day or two after his affliction he directed his niece to bring his papers from the farm, which she did, and kept them, including this note, in her possession, until after his death. Early in his sickness he requested her to get this note against Crosby, and when brought to him took it in his hands and then handed it back to her, telling her he had given this note to Christopher Crosby; that she was to remember this; that he did not wish his heirs or any one else to know of this gift; that Crosby knew about it and that she was to take it and keep it, evidently meaning until his death.

He reiterated to her a few days before his death the statement of this present, and again enjoined upon her to remember it and also to keep it secret.

Two of the essentials necessary to a valid gift of this kind are unmistakably present.

1st. That it was given in view of the donor’s death; and 2nd, that he died of the ailment with which he was afflicted at the time the present was made.

Was there a sufficient delivery of the note?

In ease of gifts cause mortis physical possession of the property is not necessarily parted with by the donor. The right of revocation inheres in the donor in case of recovery, and that is the characteristic distinguishing gifts of this kind from those inter vivos. Williams v. Guile, 117 N. Y. 343-348, 27 St. Rep. 253.

The note in controversy was especially designated by the donor. His intention to make the gift is established by clear, unequivocal testimony, and his direction to his attendant to retain the custody of the note during his lifetime, and his evident care that his executor, the donee, should be assured in its possession upon his death, are amply adequate to make a sufficient delivery and constitute the custodian of the note his agent to render effectual the donation. Grymes v. Hone, 49 N. Y. 17: Williams v. Guile, 117 id. 343, 27 St. Rep. 253; Hathaway v. Payne, 34 N. Y. 92.

In the first case cited the donor made a written assignment of twenty shares of stock to a granddaughter, and gave the assignment to his wife to give to the donee upon his death. The court, in sustaining, this as a valid gift causa mortis, held that the wife was the agent of the donor to effectuate the donation.

Testator was desirous that the fact of this gift should not be divulged to his legatees. Evidently he thought to accomplish this by making his donee his executor.

He told his housekeeper that Crosby knew of this gift, and it is fairly inferential that the old gentleman expected in this way to work out the formal delivery of the note without any publicity. That when Crosby obtained the securities he would destroy this note.

In no other way can we spell out his extreme caution, and his designation of Crosby as his executor adds significant force to this inference.

Crosby, however, received this note subject to the collateral inheritance tax. Chap. 713, Laws of 1887, sec. 1.

The executor received the avails of the estate and commingled them with his own funds, and used them for his personal benefit, and is therefore chargeable with interest, which I have adjusted in the statement of the account embodied in the findings herein.


author: Sherman, S.

text:
    In the Matter of the Estate of Jesse B. Smith, Deceased.

      (Surrogates Court, Chautauqua County,

      Filed December 18, 1891.)
    Will—Construction—Jurisdiction op Surrogate’s Court.
    The Surrogate’s Court has not jurisdiction to give judicial construction to wills on petition for letters of administration with will annexed in place of deceased executrix; but the question may be properly decided on judicial settlement of the accounts of such administrator, when appointed.
    Proceedings for appointment of administrator with will annexed.

      Walter L. Sessions, for petitioner and as special guardian for William Gaynor, minor, legatee; Van Dusen & Martin, for John Gaynor, legatee.
   Sherman, S.

The petition for the probate of this will alleged that the deceased died at Harmony, Chautauqua County, December 13, 1889, leaving personal property not exceeding in value $2,500, and real estate not worth over $4,000. Deceased left no widow, but one niece, Mrs. C. C. Hawley, his only heir at law, and made his will dated November 28, 1889, and appointed said Emeline Gaynor, his housekeeper, sole executrix thereof, which will was duly probated February 3, 1890, and letters testamentary issued to her.

The following are the material portions of such will: “After all my debts are paid in full, I do then give and bequeath unto Emeline Gaynor, of the said town of Harmony, being now my housekeeper, all of my real and personal property of every name and nature that I may have at my decease. One thing amongst the property is hereby mentioned’, to wit: the insurance that I have obtained on my life .of two thousand dollars, in the Chautauqua Mutual Tufe Association; that is, two one thousand dollar policies that I now have and Hold against said association on my life.

“It is also further understood that in the event of Emeline Gaynor dying before said Jesse B. Smith, then all of the above mentioned property is to go to William Gaynor, the son of Emeline Gaynor. It is also understood that when Emeline Gaynor dies whatever portion of said property that she has inherited from me and remains unspent of my property at her decease shall go to her said son William Gaynor, all except $500, which shall go to her son John Gaynor.

“Likewise I make, constitute and appoint Emeline Gaynor of the town of Harmony to be my executrix of this my last will and testament, hereby revoking all former wills by me made.

“In witness whereof I have hereunto subscribed my name and affixed my seal this 28th day of November, 1889.

“Jesse B. Smith.”

Emeline Gaynor died intestate September 6, 1891, and no administrator has been appointed of her estate. She left her surviving two sons, said William and John Gaynor, by a former husband, her only heirs-at-law.

She, as such executrix of the estate of Jesse B. Smith, deceased, made no inventory of the estate, and has never accounted, and such estate remains unsettled.

On October 5, 1891, John 0. Lewis was duly appointed general guardian of the person and property of said William Gaynor, minor, now aged twelve years, and duly qualified. The petition for such appointment alleged the value of the personal property of such minor was about $500, and annual rents of his real property not over $125.

The petition for the appointment of said John C. Lewis as administrator with tire will annexed of the estate of said Jesse B. Smith was made and filed October 5, 1891. Ho citation was issued upon such petition, but such general guardian and the petitioner herein and said John Gaynor and William Gay-nor by his special guardian, W. L. Sessions, duly appeared personally and by counsel and asked the surrogate to give judicial construction to said will as to whether or not the testator gave all his property, real and personal, to Emeline Gaynor, now deceased, or only the use thereof during her life, and the balance to her said two sons William and John.

Ho one appeared for the estate of Emeline Gaynor, deceased, no administrator or executor of her estate having been appointed.

The persons so appearing claimed, and it was not denied, that all the debts owing by Jesse B. Smith at his death had been fully paid. I do not think that such claims are conclusive as to creditors, as the executrix had not advertised for claims and had not filed an inventory.

Ho objection was made to the appointment of John 0. Lewis as such administrator, except that the will gave all the property to said Emeline, and that therefore no such administrator was necessary.

I do not think that the Surrogate Court has jurisdiction to give construction to the will in this proceeding, even by consent and request of all parties interested. To do so would be a mere brutum fulmen. That Surrogate Courts have authority to construe wills on the judicial settlement of estates has been often held by the Court of Appeals and Supreme Court as incident to the authority expressly given to settle and make distribution of estates. Riggs v. Cragg, 89 N. Y. 479 ; Purdy v. Hayt, 92 id. 446; Du Bois v. Brown, 1 Dem. 317; In re Verplanck, 91 N. Y. 437; Matter of Thompson, 5 Dem. 117.

Section 2624 of the Code gives to Surrogate Courts full jurisdiction to construe wills on probate relating to personal property, and it has been held that sections 2622, 2623, 2627, 2629, 2481, subd. 11, and 2482, give Surrogate Courts authority to construe wills on probate relating to real estate. Matter of Marcial, 37 St. Rep. 569-576; Matter of Look, 22 id. 86; aff’d by Court of Appeals, 125 N. Y. 762, 36 St. Rep. 1010; Matter of Delaplaine, 5 Dem. 402, 8 St. Rep. 757.

The authority to appoint administrators with the will annexed by Surrogate Courts is granted by section 2643 of the Code in the several cases therein mentioned, of which this is one provided for, which section says that the surrogate must, upon application for such purpose, upon notice to be given to creditors and other persons interested, as the surrogate deems proper, issue letters of administration with the will annexed, as provided in subds. 1, 2, 3, 4 and 5 of such section.

I find no provision in the Code or statutes giving Surrogate Courts authority to construe wills in a proceeding like this, and I see no necessity for it in this case, as such construction can be given upon the' final settlement upon service of notice upon all mrties interested, including creditors and persons interested in the estate of Emeline Gaynor, deceased.

I, therefore, direct decree refusing to give such construction to the will of Jesse B. Smith, and appointing John C. Lewis as administrator, with the will annexed, of such estate, without costs to either party in this proceeding at this time, he having duly qualified, reserving questions as to costs to the settlement of the estate.


author: Abbott, S.

text:
    In the Matter of the Probate of the Will of T. B., Deceased.

      (Surrogate’s Court, Kings County,

      Filed January, 1892.)
    Will—Pkobate—Libelous clause.
    A will should not be permitted to be made a vehicle for libel or contumely, and when such design plainly appears from the context, such matter, in so far as it is not dispositive, should be refused probate and record.
    Probate of will.
    Fromme Bros., for proponents; Robert Payne, for special guardian.
   Abbott, S.

The special guardian for the infant in this proceeding filed objections to the probate of the last clause of this will on the ground that such clause was superfluous and libelous, and should be refused probate and record.

It reads substantially as follows; “Item. And whereas one of my sons * * * is deceased, and there is a child in existence, which is claimed to be his, and which is named * * * now it is my will, that no portion of my estate, real or personal, shall go to or belong to him, his heirs or representatives.”

The son mentioned in tire “item” aforesaid had not lived happily with his wife, and they had separated after a son had been born "to them, whose custody was awarded to the mother, and who is designated as the “child in existence” in said “item;” but upon the hearing in this matter the proper and ceremonial marriage of this son and the legitimacy of his child were admitted in the broadest and fullest manner by the proponents herein, who are also sons of the testator.

The testator disposes of his entire estate, both real and personal, by the clauses of his will which precede this “item;” consequently said “item” effects a disposition of no part of his estate.

A will is an instrument which disposes of one’s property, to take effect after death, and should not be permitted to be made a vehicle for libel or contumely, and when such design plainly appears from the context, such matter, in so far as it is not dispositive, should be refused probate and record.

The same reasoning would apply to the opproprious designation of a beneficiary in a will. A beneficiary ought not to be compelled to take a legacy cum onere. The opprobrious designation should not be probated or recorded; the dispositive words only should be admitted.

I have been unable to find any case in this State in which this point has been passed upon, but there have been cases elsewhere which establish that probate of part of a properly attested will may be decreed while the rest is rejected, and it would appear that something superfluous may be expunged from a properly executed will, though the right to insert words or reform a sentence is denied. Schouler on Wills, sec. 219; Rhodes v. Rhodes, L. R., 7 App. Cas. 192; Allen v. McPherson, 1 H. L. C. 208; Fawcett v. Jones, 3 Phill. 455; Morris v. Stokes, 21 Ga. 552.

After referring to the English practice of excluding portions of a will from probate under certain conditions, Redfield on Wills, Vol. II, p. 43 (ed. 1866), says: “And we see no reason why the same course should not be pursued here. But it has been held that the court cannot, even with the consent of all parties interested, expunge from the probate any parts of the will which constitute operative portions of the instrument. But offensive passages have sometimes been allowed to be omitted from the probate, when the omission does not change the legal effect.” In re Wartnaby, 1 Robertson’s Ecc. Rep. 423; see also 1 Williams on Executors, 6th Am. ed., p. 443, and cases cited.

Following the doctrine of these authorities, it seems manifest to me that as this “item” contains no testamentary disposition and is not a necessary or operative part of the will, but simply casts an unwarranted slur upon an innocent child, it should be refused probate and record.

Let decree be presented accordingly.


author: Lansing, S.

text:
    In the Matter of the Estate of Peter D. Hearman, Dec’d.

      (Surrogate’s Court, Rensselaer County,

      Filed January 15, 1892.)
    1. Decedent’s estates—Limitation—Endorsement.
    To make an endorsement of principal or interest upon a note admissible at all, it must appear to have been made by a creditor at a time when he had no motive to give a false credit, and, at least, before the statute of limitations had created a bar. But where it satisfactorily appears that an endorsement was made at a time when it would be against the interest of the party making it, it will furnish evidence, for the consideration of the trial court, of payment according to its terms.
    2. Same—Proof of payment of interest.
    To prove payment of interest at the time an endorsement purported to be made, in order to take the claim on a note out of the statute, a witness stated that he worked for the claimant that year, and at no-other time; that deceased came to claimant’s house and stated that he wanted to pay that interest; that claimant replied, “that’s right,” and that they both went into an adjoining room. Held, that the facts and circumstances stated warranted the conclusion as matter of fact that the interest was, in fact, paid at that time and that the endorsement was made at the timeit bears date.
    This is a proceeding to mortgage ,lease or sell the real estate of the deceased for the payment of his debts. Jacob H. Snyder, administrator of the goods, etc., of Jacob A. Snyder, deceased, presents a claim for the sum of $1,500, with interest thereon, on two promissory notes for $600 and $900, respectively, to which claim the heirs at law interpose the defense of the statute- of limitations.

      George H. Hearman (R. H. McClellan, of counsel), for Charles S. Hearman et al., heirs at law; A. B. Slocum, special guardian for Hiram N. Brown, an infant; C. H. Denio and B. W. Pile, for Jacob H. Snyder.
   Lansing, S.

Jacob Harman Snyder, as administrator of Jacob A. Snyder, deceased, presents a claim, duly verified, upon two promissory notes, made by said Peter Hearman, deceased, and others, to secure the payment of the sum of $600 and $900, respectively, whereby they promised to pay, one year after date with interest, said several sums to Jacob A. Snyder, or order. Said notes are dated, respectively, the 2nd and 3rd of April, 1876, and each bear endorsements that interest has been paid each year in full from 1877 down until the 1st day of April, 1884. The last endorsement upon each is dated April 1, 1884, and acknowledges the receipt of interest in full of $54 and $36, respectively.

It is admitted that-Jacob A. Snyder died May 28, 1878, and that each of the two several endorsements made upon each of said notes prior to his death are in his handwriting.

It was proven upon the trial that the remaining endorsements were in the handwriting o-f Jacob Harman Snyder, the owner and holder of said notes after the death of his father, J a cob A. Snyder. Peter D. Hearman died August, 1887. Concededly no interest has been paid upon said notes since April 1, 1884, but if made at that time, it would be within six years before the commencement of this proceeding.

The claimant, to establish his claim, called as a witness one William H. Wolf, who testified that he worked for Jacob Harman Snyder for eight months in the year 1884, commencing in the early spring, and that he never worked for him except in one year. That he knew Peter D. Hearman, deceased. That about the last of April or first of May, 1884, Peter D. Hear-man came to the house of Jacob Harman Snyder, and he heard a conversation between said Hearman and Snyder as follows: Mr. Hearman said, “Mr. Snyder, I came to pay that little interest.” Harmy (Jacob H.) said, “That’s right,. that’s right.” Then they went into the other room. He further testified that he saw no money paid or any endorsements made upon the notes. This witness was subjected to a severe cross-examination, and it is evident that his memory as to dates is very uncertain and unreliable ; but it was established without question, that the season that Wolf worked for J acob H. Snyder was the spring and summer of 1884; and as he worked there but one season, and as he states the conversation occurred in the spring while he was at work there, it seems reasonable to believe that the conversation which he alleges he heard occurred in the early spring of 1884. Let it be assumed then that the witness is correct as to the time of this conversation, and that the conversation itself occurred as stated by him; -the question then arises, what is the effect of this endorsement purporting to have been made April 1, 1884, in the handwriting of Jacob H. Snyder, for the amount of interest then due upon each of these notes, taken in connection with the other evidence in the case ?

Two questions are presented for solution before reaching the ultimate question; one of law and one of fact. (1) As to the law:

An action upon a contract must be commenced in six years after the cause of action accrued. Code of Civil Procedure, section 380. In order to take a case out of the operation of the statute of limitation, an acknowledgment in writing signed by the party to be charged is necessary. Ib. sec. 395.

But this provision “does not alter the effect of the payment of principal or interest.” (Sec. 395.) It follows then that the provision of the Code (sec. 395) changed neither the nature nor effect of payment of interest or principal, nor introduced any rule of evidence in regard to the establishment of the same, different from that existing before the adoption of the Code. Mills v. Davis et al., 113 N. Y. 246; 22 St. Rep. 580.

To make an endorsement of principal or interest upon a note admissible in evidence at all, it must he proved to have been made before the presumption of payment attached by lapse of time. In other words the endorsement, which is only evidence of the payment, must appear to have been made by a creditor at a time when he had no motive to give a false credit and, at least, before the statute of limitations had created a bar. Roseboom v. Billington, 17 Johns. 181.

But where it satisfactorily appears that an endorsement was made at a time when it would be against the interest of the party making it, it will furnish evidence, for the consideration of the trial court, of payment according to its terms. Roseboom v. Billington, supra.

(2) This leaves for consideration the question of fact: When were the endorsements in question made ? I think the evidence tends strongly to show not only that the endorsements were made on or about the time they bear date, but also that the interest upon the notes were at that time paid, which latter fact is sufficient to prevent the bar of the statute, even if no endorsements had been made. The statute provides that payment of principal or interest alone will prevent the bar. It does not require an endorsement to evidence it.

Row what are the facts ? Peter D. Hearman comes to the house of Jacob Harman Snyder and states that he came to pay “that little interest.” Snyder says “That’s right.” They go into another room and subsequently the notes are produced bearing the endorsement of interest purporting to have been made at or about that time. It was the duty of Hearman to pay interest on said notes, for it was due at or about the 1st of April, 1884; it does not appear that there were any other notes or obligations held by Snyder against Hearman, and when he came expressing an intention to pay interest, and Snyder expressed a willingness to receive it, and both went into another room together, it may be fairly presumed that they went there to transact there the business upon which Hearman came and which they both had in mind, namely, the one to pay and the other to receive the interest, and to have such payment evidenced by an endorsement upon the notes, and that the same was at that time made and done. It is said that such payment may not have been made. Time, but no fact was shown warranting that conclusion; on the contrary, every fact shown warrants the conclusion of payment. I am satisfied that the facts and circumstances above stated warrant the conclusion as matter of fact that the interest was in fact paid upon the notes at that time. And if the fact of such ' payment is presumptively established by the evidence without the endorsement, then the payment becomes conclusively establishd when it appears reasonably clear that at the same time the endorsements were also made upon the notes in the presence of the maker.

Upon the whole, I am satisfied that the evidence is sufficient to warrant the conclusion not only that the endorsements were made at or about the time they bear date, but that the interest upon the notes was at that time paid.

This case is readily distinguishable from the case of Mills v. Davis, supra. In that case the court say each endorsement might have been made after the time when the statute had taken effect, and the court add “there is no extrinsic proof of the time when the endorsement was made, nor evidence of explanatory circumstances.” It was for the lack of such extrinsic proof and evidence of explanatory circumstances (which was furnished in this case) that the plaintiff’s case was held insufficient in the case cited.

In conclusion I shall hold in this matter, for the reasons stated that the plaintiff’s claim is established for the sum of $1,500 and interest thereon from the 1st of April, 1884.


text:
    In the Matter of the Estate of William F. O’Brien, Deceased.

      (Surrogate’s Court, Rensselaer County,

      Filed January 20, 1892.)
    Executors and administrators—When will be required to give bond.
    Where it appears that subsequent to the making of a will the relations existing between the testator and the persons named as executors became changed so as to warrant a conclusion that they would not have been selected as executors at a subsequent date, and that the testator had an intention of changing them, the rule that they occupy that position by reason of the personal confidence and trust of the testator in them fails, and the court may consider their pecuniary circumstances and qualifications; and where it appears that the estate is large, and the executors have little or no pecuniary means, and their business habits and experience have not qualified them for the management of important pecuniary responsibilities, may require security for the faithful performance of their duties.
    This is an application by Ellen O’Brien, Francis O’Brien and Mary Kate O’Brien, three of the five children of William F. O’Brien, deceased, for the revocation of letters testamentary issued to Thomas O’Brien and Charles McCarthy, executors under the will of s'aid deceased. The application is resisted by the executors. The will was admitted to probate on the 15th day of August last, and said executors qualified and letters testamentary were duly issued to them.
    This application was made September 25, 1891, upon the ground principally that the executors’ circumstances were such that they did not afford adequate security for the due administration of the estate.
    The matter was referred to Thomas S. Fagan, as referee, to take the proofs of the respective parties and report the same to the court with his findings thereon.
    Myers & Norton, for petitioners; William J. Ludden and L. E. Griffith, for executors.
   Lansing, S.

I have carefully read the testimony produced before the referee, together with the briefs of counsel and the findings of the referee. I do not deem it necessary to enter into any extended examination of the facts in this case or of the law pertaining to applications of this character. Each case must depend upon its own circumstances, and but little aid is afforded by the adjudged cases, since no case can be found which is exactly parallel with the present.

It is sufficient to say in general, that these executors are employes in large business establishments and have been so employed continuously for more than twenty years past at re»munerative salaries. Their honesty has not been assailed or questioned in this examination. Substantially the sole question (outside of the question of the personal relations which existed between the deceased and said executors subsequent to the execution of his will) has been the question of the sufficiency of the pecuniary responsibility of the executors to afford adequate security for the due administration of the estate.

The referee has found from the evidence that the executor Charles McCarthy, although in receipt of a comparatively large salary for a great many years, is pecuniarily irresponsible, being the owner of neither personal or real property of any description. That the executor Thomas O’Brien is a person of but little pecuniary responsibility, depending altogether upon the value of a piece of real estate in the city of Troy, his only property, which is assessed at about $5,000 and mortgaged for about $4,000.

Section 2685, Code of Civil Procedure, provides that “In either of the following cases, a creditor or person interested in the estate of a decedent may present to the Surrogate’s Court from which letters are issued to an executor or administrator a written petition, duly verified, praying for a decree revoking these letters, and that the executor or administrator may be cited to show cause why a decree should not be made accordingly.”

Subdivision 5. “In the case of an executor, where his circumstances are such that they do not afford adequate security to the creditors or persons interested for the due administration of the estate.”

Section 2687 provides: “Upon the return of the citation issued as prescribed in the last section, if these objections or any of them are established to the satisfaction of the surrogate, he must make a decree revoking the letters issued to the persons complained of; but the surrogate may in his discretion dismiss the proceedings upon such terms as to costs as justice requires, and may allow the letters to remain unrevoked in either of the following cases: (Third), where the case is within subdivision 5 of section 2685, if the executor gives within a reasonable time, not exceeding five days, a bond as prescribed in article 1 of this title.”

Subdivision 5 of section 2685 (or section 18, page 72, 2 Rev. St.), from which said section was derived, has been repeatedly before the court for construction. It is well settled that the choice of an executor by a testator is not restricted to persons of large means, or those whose estates are as great or greater than those proposed to be committed to them. On the contrary, the law permits a person to select from among his friends persons of approved honesty and business qualifications without regard specially to their pecuniary responsibility. Holmes v. Cock, 2 Barb. Ch. 426; Shields v. Shields, 60 Barb. 56; Grubb v. Hamilton, 2 Dem. 414.

The rule is based on the ground that'a testator1 has the same-right to exercise his choice in the selection of a person to manage-his estate after his death that he has to select one to represent him during his life. The courts will ordinarily respect his wishes in the selection of an executor, notwithstanding it is the settled policy of the law in every case (save where executors, trustees and guardians are appointed by will) to require that the persons appointed to such offices should be persons possessing honesty, integrity and business qualifications and in addition thereto that they should furnish two good and sufficient sureties in double the amount of the property committed to their charge for the faithful performance of their duties. This wide difference, as to security and pecuniary qualification, recognized in the law, between executors and trustees appointed by last wills and those appointed by the court, rests almost entirely for its support upon the presumption that the appointment of executors grows out of personal confidence and trust rather than upon the pecuniary qualification of the executor. ¡Notwithstanding this rule, however, the statute provides, and the courts hold, that however willing the testator may have been to entrust his affairs to a clearly improper person, named as executor in his will, yet that those interested in the estate at his death are not obliged to abide by his choice.

In this case the will was made some ten years before the death of the testator, and the circumstances are such as to warrant the conclusion that the deceased would not have selected one and ptrobably neither of them as executors had he made his will at or about the time of his death, for it appears that the testator by a memorandum upon his will, made a year or two after it bears date, intended to substitute some other person for Mr. Thomas O’Brien as executor in his will; and although that intent was not effectuated by reason of the will not having been formally re-executed, it sufficiently appears in connection with the circumstances under which it was made that he did not at that time desire to have Mr. O’Brien continued as executor under his will; and although their relations subsequently became friendly, the deceased did not change his will in that respect.

As to the other executor, Mr. McCarthy, the relations of the deceased with him for the last few years prior to his death were not such as to warrant the conclusion that he would have selected him as executor, had he made his will shortly prior to his death.

The matter then comes to this: Although the executors have received a valid appointment under the will, yet they are measurably deprived of the benefit of the rule, that they occupy that position by reason of the personal confidence and trust of the testator in them, which the law assumes to stand in the place| of pecuniary responsibility. This fact, which is established, must relegate them to the position of those liable under the statute of having their pecuniary qualification to manage estates inquired into in a manner similar to that of persons seeking such appointment from the court. In other words, the reason for the rule having failed, the rule itself falls. The executors are thus deprived of the benefit of the presumption, that they are qualified for their positions, arising from the fact that they have received their appointment from the testator. It seems to me, therefore, that without the slightest reflection upon the character of the executors, I should consider whether the circumstances of the executors, or either of them, in connection with their business methods and habits, are such as to furnish adequate security for the due administration of the estate.

My conclusion upon the whole is, that as the personal estate is very considerable, amounting to something like fifteen to twenty thousand dollars, and there is also connected with the will a trust of considerable importance, extending through the lifetime of one of the children of deceased, and as the said Thomas O’Brien and Charles McCarthy are possessed of little or no means, and their business habits and experience have not qualified them for the management of important pecuniary responsibilities, that they should give a bond in the usual form, with two good and sufficient sureties for the faithful performance of the duty of their office of executor and trustee in the penal sum of $30,000, unless it should be made to appeal’ that the personal property exceeds $15,000, in which case the bond shall be double the amount of the personal estate; and as the costs and expenses of this proceeding have largely been the result of the unwillingness of the executors to furnish a bond as they were authorized to do under section 2686 of the Code, upon the presentation of the petition, I think they should personally pay the disbursements of this proceeding, amounting to the sum of $101.40, and in case of their failure to give such bond and pay such disbursements within five days after service of an order to that effect upon them, an order may be entered revoking the letters issued to them, or the one so failing to comply with the conditions above prescribed.


text:
    In the Matter of the Estate of Ira L. Gates, Dec’d.

      (Surrogate’s Court, Chautauqua County,

      Filed March 9, 1892.)
    Judgment—Lien of justice’s judgment filed in office of county clerk —Code Civ. Pro., § 1380.
    James Matteson recovered a judgment against the decedent before a justice of the peace of Chautauqua County, which was docketed in the county clerk’s office on transcript filed July 3, 1878, and such judgment thereupon became a lien on land of decedent, who died intestate December 13, 1884, leaving no personal property to pay the judgment. The judgment creditor petitioned the Surrogate’s Court for leave to issue execution and sell the lands. Opposed by Hiram Putnam, subsequent mortgagee of same lands, claiming the judgment outlawed, and the lien thereof extinguished by lapse of time. Letters of administration were issued upon the estate of decedent September 13, 1888, and the administrator was duly discharged January 4, 1890. Held, that although the judgment was outlawed, and more than ten years had elapsed after docketing thereof, yet in this ease, under section 1380 of the Code, the lien thereof was continued three years and six months from issuing letters of administration; that the meaning of the word “ thereafter,’’ as used in the third sentence of said section, relates back to the issuing of letters of administration and not to date of decedent’s, death.
    Application for decree to issue execution to sell lauds of decedent.
    George H. Frost, for Matteson, the judgment creditor; M. M. Allen and J. G. Record, for Putnam, subsequent mortgagee.
   Sherman, S.

Judgment for $184.54 was duly recovered June 25, 1818, in favor of James Matteson against the decedent, Ira L. Gates, before a justice of the peace of Chautauqua County, on which a transcript was duly made by such justice and filed, and judgment duly entered and docketed thereon for $185.29 in the clerk’s office of said county on July 3rd of same year. Ro part of the judgment has been paid, or execution issued to collect it, and same thereupon became a lien on the lands of the decedent described in the petition herein. Soon thereafter the said Ira L. Gates gave a mortgage for $1,000 on same lands, which was duly recorded, to said Hiram Putnam, which remains unpaid.

The decedent, on December 13, 1884, being six years and five months after the judgment was docketed, died intestate, leaving no personal property to pay the judgment or other debts owing by him at his decease. An administrator was duly appointed ■of his estate on September 13, 1888, who settled the estate as such, and was duly discharged January 4, 1890. The order granting leave herein to issue execution being made March 9, 1892, and execution issued to sell said lands only a few days less than three years and six months after granting the letters of administration.

It was claimed by the learned counsel for the mortgagee on the trial herein, and denied by the petitioner, that the judgment was outlawed. The petitioner claimed that the lien of judgment wpuld not expire until March 13, 1892, being three years and six months after letters of administration were granted. The mortgagee claimed that such lien expired June 13, 1888', being three years and six months from death of intestate on December 13, 1884.

The important question in this case arises on construction to be given to the meaning of the word "thereafter” in the third sentence of section 1380 of the Code, whether, in the connection used, it means three years and six months after letters of administration were issued, or same length of' time after death of ■decedent. If the latter, the lien had already expired; if the fbrmer, it has not.

Such section reads as follows:

“Section 1380. After the expiration of one year from the death of a party against whom a final judgment for a sum of money, or directing the payment of a sum of money is rendered, the judgment may be enforced by execution against any property upon which it is a lien, with like effect as if the judgment debtor was still living. But such an execution shall not be issued unless an order granting leave to issue it is procured from the court from which the execution is to be issued, and a decree to the' same effect is procured from a Surrogate s Court of this State, which has duly granted letters testamentary, or letters of administration, upon the estate of the deceased judgment debtor. Where the lien of the judgment was created as prescribed in section twelve hundred and fifty-one-of this act, neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent, and for that purpose such a lien existing at the decedent’s death continues for three years and six months thereafter, notwithstanding the previous expiration of ten years from the filing of the judgment roll. But where the decedent, died intestate, and letters of administration upon his estate have not" been granted within three years after his death by the Surrogate’s Court of the county in which the decedent resided at the time of his death, or if the decedent resided out of the State at the time of his death, and letters testamentary or letters of administration have not been granted within the same time by the Surrogate’s Court of the county in which the property on which the judgment is a lien is situated, such court may grant the decree where it appears that the decedent did not. leave any personal property within the State upon which to administer. In such ease the lien of the judgment existing at the decedent’s death continues for three years and six months as aforesaid. But this section shall not apply to real estate which shall have been conveyed, or hereafter may be conveyed, by the deceased judgment debtor during his lifetime, if such conveyance was made in fraud of his creditors, or any of them, and- any judgment creditor of said deceased, against whose judgment said conveyance shall have been, or may hereafter be, declared fraudulent by the judgment and decree of any court of competent jurisdiction, may enforce his said judgment against- such real property, with like effect as if the judgment debtor was living, and-it shall not be necessary to obtain the leave of any court or officer to issue such execution, and the same may he issued at any time to the sheriff of the county where such property is or may he situated. The person issuing such execution, however, shall annex thereto a description of the real estate against which the same is sought to be enforced as aforesaid, and shall endorse on said execution the words ‘issued under section thirteen hundred and eighty of the Code of Civil Procedure,’ whereupon said sheriff shall enforce said execution as therein directed against the property so described, and not against any other property, either real or personal, and all provisions of law relating to the sale and conveyance of real estate on execution and the redemption thereof shall apply thereto.” ■

By the first part of the third sentence of above section the order of the County Court or decree of surrogate cannot be made nor execution issued until the expiration of - three years after letters testamentary or of administration have been granted. And immediately following in the same sentence are these words, “and for that purpose such a lien existing at the decedent’s death continues for three years and six months ‘thereafter, ’ notwithstanding the previous expiration of ten years from the filing of the judgment roll.”

These provisions were undoubtedly made to enable the administrator or executor to make an inventory of the personal property, and ascertain whether the judgment or any part thereof could be paid or satisfied from the personal property. And it is quite clear that words, “existing at the decedent’s death,” are here used only as qualifying words as to the time such lien must commence, and not otherwise in any way affecting the limitation of the time from three years and six months from granting of letters. This view is confirmed by the remaining sentences of said section 1380, providing for cases in which, under the circumstances therein named, leave to issue execution may be granted, where letters have been issued, and limiting the last sentence of such section as follows: “in such case the lien of the judgment existing at the decedent’s death continues for three years and six months as aforesaid.”

There is no time limited by the Code or practice in which letters of administration may be issued after the decedent’s death. If not issued in three years after such death, they may be issued thereafter upon the petition of any creditor, next of kin or other person interested in the estate contingently or otherwise.

Bearing' in mind that no order for leave to issue execution can be made under section 1380 in less than three years after letters testamentary or of administration have been go-anted and such leave is obtained by section 1381 of Code, which expressly provides that notice of application for leave to issue execution "must be given to the executor or administrator.”

Suppose the next of kin or creditors neglect to obtain such letters, as in this case, until about the time or after the three-years and six months have expired from the death of decedent, instead of same time after letters have issued, the latter time dating from issuing of letters is wisely provided for in the construction of the word "thereafter ” as claimed by the petitioner, so as to give reasonable time to examine the condition of the personal estate and make an inventory absolutely, necessary to ascertain the value of the personal property that may be applied in payment of the judgment or some part thereof, whereas in the former case no such remedy would exist.

If the meaning of the word “thereafter” is as claimed by the mortgagee as used in section 1380, why should the words "as aforesaid” have been used at the close of the last sentence of said section in place of the word “thereafter,” so the sentence would read, “In such case the lien of the judgment existing at the decedent’s death continued three years and six months thereafter,” instead of “as aforesaid” and thereby giving such sentence a meaning as claimed by the mortgagee.

The question is new, and I have been unable to find any authority bearing upon it except the decision of the learned county judge of Chautauqua County, granting an order a few days since in this case upon the same facts as herein, for leave to issue an execution to collect the judgment in question by sale of said land.

I do not think that the case of Platt v. Platt, 15 St. Rep. 217, cited by the counsel for the mortgagee, is in point, as the precise question here involved was not in it.

The following authorities were cited by counsel as bearing upon the questions raised: Townsend v. Tolhurst, 32 St. Rep. 21, and cases therein cited; Code, secs. 1251, 1377, 1381, 1379 and 3017; Matter of Holmes, 36 St. Rep. 535; Waltermire v. Westover, 14 N. Y. 16.

I direct decree for leave to issue execution to sell the land as prayed for in the petition.

(Note.—Affirmed by General Term, 50 St. Rep. 275.)