text:
      In re Goetschius’ Estate.
    (3 Misc. Rep. 155.)

      (Surrogate’s Court, Rockland County,

      Filed March, 1893.)
    1. Executors—Accounting—Costs.
    An executor who has been forced to account by process of the court, and who has failed to sustain many items thereof, will be only allowed costs as if there were no contest.
    2. Same—Contestants—Costs.
    Contestants who have forced an executor to account, and who have successfully contested nearly all the items of his account, will be allowed out of the estate, if not against the executor personally, costs of compelling the executor to account, for time occupied in the trial, and a contest fee, but not for time occupied in preparing for trial.

      3. Same—Income—Costs.
    When there is a doubt as to whether the executor, as such, received and disbursed the income of personal estate, during the continuance of a life estate, and that even if he had, there was no balance due by him on foot of such income, costs will not be allowed the executor or the contestant.
    ■4. Same—Principal—Costs.
    If such costs were allowed, they could not be charged against the principal of the estate.

      S. Same—Contest. :
    The executor’s costs in such case will not be awarded against the contestant, when the executor kept no account of the income fund.
    Application on settlement of decree on executor’s accounting, •as to costs.
    Snider & Hopper, for executors; Arthur S. Tompkins and D. D. Sully, for contestants.
   Weiant, S.

—My decision of the issues in this matter was filed on February 13, 1893. 23 N. Y. Supp. 970. I am now required, for the purpose of the settlement and entry of the decree, to determine the questions as to the allowance of costs, and directions as to how, and by whom, the same should he paid. The counsel for the executor presents a bill, specifying the items thereof, asking for $220 costs and $11.70 disbursements. The counsel for the contestants submit a bill, claiming $155 costs, and $3.22 disbursements. Section 2558 of the Code of Civil Procedure provides that “the award of costs in a decree is in the discretion of 'the surrogate, except in one of the following-cases.” Then follow the exceptions, none of which apply to a matter like the one under consideration. In re Reeves (Sup.), 1 N. Y. Supp. 17. The opinion of Hr. Justice Daniels in the-case cited may be read by practitioners to their edification, and to the relief and satisfaction of surrogates. By section 2557" of the Code it is prescribed that, “except where special provision is otherwise made bylaw, costs awarded by a decree may be made payable by the party personally, or out of the estate or fund, as justice requires.” It thus specifically appears that the power of the Surrogate’s Court is broad as to awarding costs to parties, and from whence and by whom the same may be decreed to be paid; and the inquiry is, having in mind these statutory provisions, to whom should costs be given, if any, and from what source and by whom should the same be paid, upon the facts and circumstances disclosed upon this accounting? In order to bring about an accounting, the persons interested in this estate were obliged to take compulsory proceedings to compel the executor to render the same. The executor had been commissioned as such in 1859, and had at no time rendered an account of his proceedings. When thus forced by process of the court, he initiated a proceeding for a judicial settlement of the estate, and filed his account. He did not therein, as is usual in these proceedings, charge himself with the assets set forth in his inventory, but omitted therefrom moneys which he had himself used, as well as his co-executor, in their copartnership business. He neglected to pay an admitted debt of his testator, and’ asked credit for an aggregate sum of $150 interest that he had paid thereon during the years of his executorship. He charged himself with but $1,500 of assets, and rendered no statement as to the balance thereof. To these accounts the contestants interposed objections, all of which have been sustained, except the one to the $100 claim against the estate of one Esler on a note, and which the executor had not paid.

The contest has been upon items as to which the executor should have voluntarily accounted and charged himself, and as to which he thus invoked a contest, and was adjudged in the wrong. He cannot be justified in doing this, nor in fairness ask that the estate shall reimburse him for his expenses. No such rule can prevail. It would be contrary to the statute, and encourage every person acting in a fiduciary capacity to involve the trust estate in unnecessary litigation and expense, to gratify personal animosities and differences, without the risk of pecuniary harm or hurt to himself. It would be encouraging laxity and negligence in the administration of such estates, where the law requires care and vigilance.

The bill of costs of the executor is allowed to the following extent: $20 for the two days charged for preparing his accounts, $25 for proceedings as if there were no contest, and $11.70 for his disbursements—a total of $56.70, which may be made payable out of the estate. The bill of costs of the contestants other than Catherine L. Smith and Henrietta Goetschius, who simply appeared and interposed objections, but who have taken no part in the contest, and the executors of the will of Eannie Goetschius, deceased, is allowed as follows: Contest fee, $70; three days occupied in the trial, $30; for proceedings to compel the executor to account, $25; disbursements, $3.22— total, $128.22. The item of $30 for three days necessarily occupied in preparing for trial is one that is allowable only to an accounting party. Code Civil Pro. section 2562; In re Weeks, 5 Dem. Sur. 194-211; In re Peyser, id. 244; In re Reeves (Sup.) , 1 N. Y. Supp. 17. This allowance I also make payable out of the estate, although I might well charge it against the executor personally. In re Williams (Surr.), 2 N. Y. Supp. 669; Estate of Harnett, 15 N. Y. St. Rep. 725. The remarks of the learned surrogate in his opinion in Re Williams are quite-applicable' to the matter here being- considered. The following authorities in principle sustain my determination : In re Woodward, 13 N. Y. St. Rep. 161; Estate of Wilcox, 11 Civil Pro. Rep. 115; In re Williams, supra; Estate of Harnett, 15 N. Y. St. Rep. 725; Walton v. Howard, 1 Dem. Sur. 103. In Re Woodward, 13 N. Y. St. Rep. 161, where an executor had failed to keep his accounts distinct from his dealings with others, and in such manner that persons interested in the estate could. inspect them at any time if they desired to know its standing and condition, it was held that the executor could not be allowed for his own time and expense, or for the expenses of his counsel, upon the accounting, more than would be reasonable for the time and labor spent in establishing an account kept and made out in such manner as the law requires. In Re Williams, supra, it was decided that where an accounting executor, or his attorney, by neglect delays the same, and items of the accounts were, upon examination, found erroneous, the entire cost of the proceeding-will be charged upon the executor personally. It must be remembered that, according to the whole line of the authorities, the allowances in these procéedings, under the provisions of the Code as to costs and disbursements, are made to the parties, and not to their attorneys, and are not intended to be the measure of' compensation as between the attorney and client. As remarked by Surrogate Ransom in Re Willett (Surr.), 2 N. Y. Supp. 668.

“It may be that the allowance granted by me by way of costs is not sufficient to properly compensate the'attorney. In that-event he should look to his clients, the trustees, for such compensation, and, if proper, they may be allowed the same upon a judicial settlement of their account.”

While the accounts of the executor contain no statement of the-income of this estate, to which the widow was entitled under the-will of the testator, and no allegation appears in the answer-claiming that the executor should be charged with, and should account for, the income estate, yet as between the accounting executor and the executors of the will of the widow there lias"been an examination into his receipts thereof ana payments therefrom. That subject has been disposed of by my decision upon the main question, from which it appears that there was no balance of such income in his hands at the time of the widow’s death. That being so, and for other reasons, among which is the doubt as to whether the executor, as such, received and disbursed said income, and consequently as to whether or not he is accountable therefor in this proceeding for the same, costs as to that branch of the accounting are not awarded to either party. If allowred the costs therefor, they would pot be charged against the principal estate in the executor’s hands. The principal estate cánont he charged with the expenses of administering or' the costs of tire settlement, of the income estate. Each must hear its proper charges and expenses of administration. Dannat v. Jones, 2 Dem. Sur. 602. But if it he claimed that the executors of the estate of the widow have made a contention in which they have been defeated, and that therefore the accounting executor should be awarded costs against them, payable out of her estate, still, I think the executors of the widow’s estate have a full and just answer to such claim, in the fact that the executor kept no accounts whatever of this income fund, v'hereby the widow or her personal representatives might inform themselves as to the-relations existing as to such fund between the respective parties.. In re Woodard, supra; Estate of Wilcox, supra. The widow’s, executors are in duty bound to seek information as to whether the accounting executor was indebted to the widow or her estate-for any balance of such income, and the executor, by his neglect-to comply with the duty which the law imposed upon him to keep accounts and vouchers of his transactions, so as to disclose the state of his accounts or dealings with the widow, without legal investigation, has no reason to complain if costs he denied him, and the widow’s estate relieved from such expense, which his failures and conduct brought about.


source: Caselaw Access Project

author: Coffin, S.

license: Public Domain

text:
      In re Richardson’s Estate.
    (2 Misc. Rep. 288.)

      (Surrogate’s Court, Westchester County,

      Filed February, 1893.)
    1. Executors—When not liable as executor de son tort.
    An executrix prior to her death placed certain of the funds of the estate in the uands of one who was, after her death, appointed executor. Held, that in respect thereto the latter could not be treated as an executor cíe son tort (2 E. S. 81, sec. 60), and that the estate of the executrix was liable to any profits earned by the funds so placed, prior to her death.
    2. Executors—Outstanding assets.
    An executor is not obliged to charge himself with the amounts of insurance policies still running, nor with interest on a fund held by a trust company in liquidation, nor with collaterals to loans out of the estate made to himself, as they are not cash in hand or its equivalent, but he should set them, forth as outstanding, in schedule G.
    3. Executor—Interest on funds loaned to himself.
    An executor is chargeable with profits from the use of money belonging to the estate, as also any bonus he may have received for the loan of the funds, and if such should be less than the legal rate of interest, he is chargeable with the deficiency.

      4. Same—Liability for acts prior to appointment.
    An executor and trustee is liable for dealings with the estate prior to his appointment up to the date when he assumed control of the funds.
    5. Same—Commissions. •
    A credit for commissions will be disallowed, as they cannot be taken prior to accounting.
    <5. Same—Bookkeeper’s charges.
    An executor should keep his own accounts when they are simple, and he will not be allowed for bookkeeper’s charges, especially when any complexity arose by his own unwarranted dealings with the fnnds.
    7 Same—Keferee.
    An addendum to the report of a referee, made subsequent to its submission, will be disregarded.

      Petition by Anna P. R. Kirkland, a legatee, for the judicial ■■settlement of the accounts of T. 0. Richardson, styled in the petition “substituted trustee,” who was appointed executor of the estate of Richardson, deceased, in lieu .of the widow of •deceased, the sole surviving executor and trustee under the will.
    The widow died on January 29th, 1890. Prior to her death she had placed certain of the funds of the estate in the hands of T. C. Richardson, her son, who, it was claimed, was chargeable with the profits thereof prior to her death. On June 6th, 1890, T. C. Richardson was appointed substitute trustee and executor. He borrowed moneys of the estate and secured same by collateral. In 1892 an arbitrator, who had been appointed in 1888 to state the account between the executrix and other parties interested, and whose account it was agreed should be final, filed his report bringing the account down to January 29th, 1890, the date of the executrix’s death.
    After filing the report, the arbitrator filed an addendum thereto relating to a fund held in trust for the petitioner. Other facts appear in the opinion.
    Clarke & Culver, for petitioner; W. H. Sloan and F. X. Donoghue, for T. C. Richardson; S. E. Duffy, for Edward C. Richardson, a legatee.
   Coffin, S.

It appears to be conceded that the starting point •on this accounting is January 29, 1890, the date to which the referee brought it down. The sums of $3,100 (call loan) and $9,010.14 were placed in the hands of T. C. Richardson by the ■executrix prior to her death, and her estate is therefore liable for any profits earned by those sums prior to that event In respect thereto this trustee or executor cannot be treated as an executor de son tort. 2 Rev. St. p. 81, section 60. The present executor is here called “substituted' trustee,” but in the order appointing him he is also styled “executor.” It does not seem that there is any trust created by the will, now unexecuted, but paying over the fund, except, perhaps, as to a portion of Mrs. Kirkland’s share.

It is objected that the accounting party should have charged himself with the amounts of the life insurance policies now held by him, and still running, with the amount of the interest of the estate in the fund held in liquidation by the Farmers’ Loan & Trust Company, and with certain collaterals to loans made to-himself. As they were not cash in hand, or its equivalent, he properly omitted so to charge himself, but he should have set. them forth in Schedule G. When he realizes on them, he may be called upon to render a further account.

The present trustee had no right to borrow money from himself, as such, to speculate with, and whatever profits he may have realized from the use of the money belongs to the estate,, and he should be charged therewith. Any bonus he may have received for the loan of the fund also belongs to the estate. Of course, if he realized, in his speculations, less than the legal interest, he must be charged with the deficiency.

If T. 0. Richardson is to be regarded simply as an executor and trustee, then it would seem his acts and dealings with the estate, from the date of the death of his mother, and prior to his appointment, as a mere common-law trustee, are reviewable here, like those.of an executor de son tortj the order appointing him relating back to the time when he assumed control of the funds. While this may seem somewhat doubtful, still, in view of the fact that surrogates now possess as great powers on the accounting of trustees as of executors, it appears to he "analogous'in principle to the cases of In re Faulkner, 7 Hill, 181; Farrell’s Estate, 1 Tuck. 110. If, therefore, claims exist in his favor, or against him, for any dealings with the estate prior to June 6, 1890, and subsequent to January 29, 1890, redress may properly be sought here.

The credit for “fee paid to T. Ohesley Richardson1, as trustee, $100,” presumably on account of his commissions, is disallowed, as it is well settled that the commissions cannot he taken prior to the accounting.

The items of credit claimed for payment of services of bookkeepers should be, and are, disallowed. Doubtless the gentlemen who rendered the services were abundantly competent experts, and were entitled to be adequately rewarded; but as a rule an executor should keep his own accounts, when they are as simple as they should have been in this instance, if the executor had not rendered them more complex by his unwarranted dealing with the fund, and, if he cannot, then he should pay for the work belonging to him to do, out of his own pocket.

The addendum to the report or award of the referee or arbitrator, having been made subsequent to its submission, must be discharged.

With the exception of the criticisms and their results, as above outlined, the account is approved, and a decree will be prepared accordingly.


text:
      In re Govan’s Estate.
    (2 Misc. Rep. 291.)

      (Surrogate’s Court, Westchester County,

      Filed February, 1893.'
    1. Administrators—Further indebtedness—Increase of bond
    On an application by an alleged creditor of a decedent, whose will was probated in a foreign tate, and the executors of which were appointed ancillary administrators here, to have the penalty of their bond increased so as to cover her indebtedness, the court cannot try the question of the alleged indebtedness, although disputed.
    2. Same—Amount of bond.
    Ancillary administrators having been appointed and duly qualifying' (Code Civ. Pro. see. 2667) by giving bond in $120, being double the amount of a debt ($60) alleged by them to be due by decedent to a resident in New York, the assets in this State being also alleged to be under $100 in value, held, that the application of an all eared creditor to the extent of $240 to have the bond increased to $600 penalty should be denied, as the only object of the bond was to secure the creditors to the extent of the value of the assets.
    The will of decedent, who died in Connecticut, was proved in that State by his executors, Henry F. Smith and James H. Groom, who were thereafter appointed ancillary administrators here, on their petition alleging assets to the extent of $100 in Westchester County, N. Y., and that decedent owed $60 to a resident of this State, and on giving1 bond in the sum of $120.
    Subsequently Harriet Govan applied for an order that the penalty of the bond be increased to $600, claiming that decedent owed her $240. Denied.
    I. J. Beaudrias, for petitioner; F. X. Donoghue, for ancillary administrators.
   Coffin, S.

This court cannot try the question of the alleged indebtedness, but must regard the claim of the petitioner, although disputed, as sufficient to entitle her to make an application of this character. Nevertheless the prayer of her petition must be denied. She asks for a. bond in the penalty of $600; the admitted debt being $60, and her claim $240, making $300 —the half of the proposed penalty. She does not claim that, the value of the assets in this State exceeds $100, which is the | amount stated in the petition for the letters'. Now, by section: 2699 of the Code, before such letters can be issued, the persons to whom they are awarded must qualify as prescribed in section 2667, to wit, by giving a bond in a penalty not less than' twice the value of the personal estate of the deceased, except that the penalty of the bond may, in the discretion of the surrogate, be in a sum not exceeding twice the amount which appears to be due from the decedent to residents of the State. This discretionary power was exercised in this case. It would seem that unless the surrogate exercise this discretion tire penalty of the bond should be twice the amount of the value of the assets in this State, and then, in this case, the penal sum would have been $200. It would be absurd to hold that the Legislature intended that where the amount of the assets was only $100, and the amount of the debts $5,000, the executors should give a bond in the penal sum of $10,000. The amount of the penalty of an administrator’s bond is fixed, not with regard to the debts the intestate owed, but the value of his personal estate. The only object of the bond here is to secure the creditors to the extent of the value of the assets. .The prayer of the petition is therefore denied, with $10 costs of the motion.


author: Weiant, S.

text:
      In re Turfler’s Estate.
    (1 Misc. Rep. 58.)

      (Surrogate’s Court, Rockland County,

      Filed October, 1892.)
    1. Legacies—Advancements.
    The statutes of descents (1 Rev. St. p. 754, secs. 23-26) and of distributions (2 Rev. St. p. 96. secs. 75-77) as to advancements, only relate to cases of intestacy.
    2. Ademption—Bequest of residue.
    Testatrix provided by her will that her property should be sold and the proceeds equally divided amongst her five children. After the execution thereof she made advances to them, and took a receipt from each which expressed that testator intended to advance each $5,000. Three of the receipts were for the full sum of $5,000, but two were for less than that sum. After testatrix’s death, her executor, prior to an equal distribution of the assets, paid to each of the two children who had received less than $5,000 the difference necessary to make up the $5.000 which testatrix intended to give each in her lifetime. Reid, that the payments so made were authoritatively made as advances or payments, to carry out the intention of the testatrix to equalize the distribution of her property among all of her children.
    3. Same.
    The principle of ademption of a legacy is applicable to a bequest of residue.
    4. Same—Devise of realty.
    In such case the proposition that the rule of ademption is only predicable of legacies of personal estate, and is not applicable to devises of realty, does not apply, as the will devised the real estate to the executor in trust to sell the same and divide the proceeds, and in any event, as the executor had received $24,000 of personalty, and applying the rule of ademption to only a bequest of personalty, strictly such, the payments to the two children in question were properly made.
    5. Estoppel op legatee—Payment as ademption.
    When one of such residuary legatees gave her assent without qualification to the making of the payments so as to equalize the two children who had received less than $5,000 with the other children, and withheld objections to the same being made, knowing that the same were being made, or were about being made, until the payments were actually made, and then first interposed objections, held, that such legatee was estopped from claiming that such payments were illegally and improperly made.
    Judicial settlement of accounts of Jacob C. Turfler, executor of the last will and testament of Elizabeth Turfler, deceased.
    Scott & Upson, for executor; T. C. Cronin and I. Netwton Williams, for contestant, a residuary legatee.
   Weiant, S.

—The testatrix, Elizabeth Turfler, died February 9, 1886, leaving a last will and testament, bearing date February 16, 1882, and a codicil thereto, bearing date October 28, 1885, and appointing her son, Jacob C. Turfler, the sole executor thereof. By her said will the said testatrix directed her funeral expenses and debts to be first paid. Secondly and' thirdly, she made bequests of certain articles of personal property to her two daughters', Amy Williams and Cornelia R. Kroehl. Fourthly, she gave to her said daughter Amy Williams the right to use and occupy a house and lot, No. 583 St. Mark’s avenue, Brooklyn, for five years from May 1, 1882, upon certain conditions as to the payment of repairs, taxes, etc., and with the right to purchase the same from the executor at any time within such period for the price of $5,000, on certain terms therein prescribed as to payment and security. Said provision terminates with the following words: “But, if my said daughter Amy shall so purchase the said house and lot, she shall pay therefor the whole of said sum of five thousand dollars, and shall have no share with my other children in the purchase price thereof, as hereinafter provided concerning any other property.”

The testatrix then makes the following disposition of her property: “All the rest, residue, and remainder of my estate, whether real or personal, * * * I give, devise and bequeath to my said executor in trust, to sell the same * * * at public or private sale, and at such times and in such manner as he may deem best, but all (except the St. Mark’s avenue house and lot above) within one year after my death, and the proceeds of such sales * * * to divide equally among my five children, namely, the said Amy Williams, the said Cornelia E. Kroehl, George C. Turfler, Jacob. C. Turfler and Francis A. Turfler.”

Here then follows a bequest and devise in case of the death •of either child, and the testatrix then adds: “And my said executor shall make division of such proceeds among my said children or children and grandchildren as often as such proceeds of sales or accumulations of moneys in his hands shall amount to $2,500.”

The instrument then terminates with the appointment of the executor. By the codicil the testatrix makes only the following provision: “It being my intention to make a gift to my daughter Amy Williams of the property mentioned in the fourth paragraph of my foregoing 'will, and the expenses of that "property in repairs, taxes, etc., since the execution of my said will, having been paid by me, I do hereby revoke and declare null and void the said fourth paragraph of my said will.”

After the execution of her will, the testatrix made advances or loans, from time to time, to each of her said children, and on December 10, 1885, took from each of her said children, George <1 Turfler, Jacob C. Turfler, Francis A. Turfler and Cornelia E. Kroehl a receipt or acknowledgment in writing, executed by each respectively and separately, and reciting in each substantially that “My said mother having determined to make gifts or advances to all of her children to the amount of $5,000 each, "* * * so that the said payments and loans may be treated as a gift or advance, this is to acknowledge that I have received from her the said sum of $5,000 as such gift or advance.”

The acknowledgment of George C. Turfler, however, recites that he has received only $2,100, “on account and as part of such gift or advance of $5,000,” and that of Francis A. Turfler that he has received “from my said mother the said aggregate of $2,420 on account, and as part, of said sum of $5,000 so advanced, and to he advanced, to me.” The daughter, Amy Williams, the only contestant herein, executed the following acknowledgment as to her advancements:

“Received, December 10, 1885, of Elizabeth Turfler, a deed from her to me of the property known as number 583 St. Marks avenue, in the city of Brooklyn, my mother, the said Elizabeth Turfler, having made gifts or- advances to several of her children, and having determined to make such gifts or advances to all her children, equally to each child, the sum or equivalent of five thousand dollars, this receipt is an acknowledgment that I have received in the said property above mentioned the whole of such sum of fix'e thousand dollars as such an adxrance to me.”

George C. Turfler and Francis A. Turfler received no further payments or advances during the lifetime of the testatrix, except one of $500 to George, on January 11, 1886, “on. further account of the above-mentioned advance of $5,000,” making his; aggregate payments $2,600. After her death, and after the probate of her said xxdll and codicil and the granting of letters testamentary thereof to the said executor, and about March 4, 1886, all of the children, or their representatives, held a conference as to the estate matters, and as a part- thereof the matter of the intended gifts or advances of the $5,000 to each child by the testatrix came under consideration, and the fact that neither Francis nor George had receix’-ed their full $5,000, Francis having received but $2,420, and George the $2,600, was acknowledged by all. The matter of completing these gifts or advances to them was discussed, and it was agreed by all, including this contestant, that these two brothers should receive ah amount of money out of the estate which, with the amount which each had already received, would make the sum of the advances to each $5,000. At least two subsequent meetings of said parties were had, at which the contestant was present, and the matter of the payment to George and Francis of their respective balances of the sum of $5,000 came under consideration. These latter meetings were held at the office of the counsel for the executor in Few York City, about the respective dates of March 10 and April 15, 1886. About said 10th day of March the executor paid to George and Francis the respective sums of $2,400 and $2,580, as their respective balances of $5,000, and took their receipts therefor. These items appear as credits in Schedule E of the accounts. About the same time the counsel for the executor prepared a writing reciting the facts, with reference to these gifts or advances of the testatrix, and that it was her intention, before her death, to make to each an advance or gift to the amount of $5,000; that George and Francis had only been paid to the respective amounts of $2,600 and $2,420; that, although the will does not provide for payment to them of the remainder of such amount of $5,000 to each, yet it is declared to be just, and it is the desire of the parties that such remainders be paid out of their mother’s estate before any division of the same; and that the executor has, at their special request, and their promise of release to him, paid over the said remainders out of the moneys of the estate to said oGorge and Francis; and then follows a release and discharge of the executor, and acknowledgment of the said payments by him, and an agreement to waive-all objections to such payments upon the accounting of the executor. This writing is under seal, and executed by all the children except Mrs. Williams, arid is in evidence as “Exhibit 4, May 24, 1892.” As to what occurred, and what was said, as ,to the terms and conditions upon which such payments might be made to George and Francis by the executor, and said writing above should be executed by Mrs. Williams, there is a conflict of evidence. She contends that the payments were to be made, and such release executed by her, only upon condition that a certain Greenwood cemetery plot, constituting a part of the-estate, should be conveyed to her by her said brothers and sister, while the executor claims that no condition was imposed, and no such objection raised, until after he had made the payments -agreeably to the consent of all, including Mrs. Williams, given -at one or more of these conferences above mentioned. On or -about April 15, 1886, the executor paid each child, including the contestant, the sum of $2,500 on account of his or her distributive share of the estate, and so, again, on April 11, 1887, a ■payment to each of $800.

The contestant now objects to the allowance of these two payments of $2,400 and $2,580, respectively, to George and Erancis .as credits in the executor’s accounts, and contends that the same were wrongfully made and unauthorized. This presents the -only question which is submitted to me for my consideration and determination. The counsel for the executor maintains that these payments were properly and legally made, and that "the executor should be credited therefor, on these several grounds: (1) That the same were properly made as advances-, pursuant to the provisions of the statutes of distribution and -descents; (2) that they were authoritatively made as advances •or payments, to carry out the intention of the testatrix to equalize the distribution of her property among all of her children; (3) that the payments were made with the consent of all of her •children, including Mrs. Williams; that she was present when the payments were made, or had knowledge or information that the same were being made, and made no objection thereto, and that because thereof she is now estopped from claiming that the ■same were illegally and improperly made. It is my opinion that these payments cannot be sustained upon the first ground. The statutes of descents (1 Rev. St. p. 754, secs. 23-26) and of «distributions (2 Rev. St. p. 96, secs. 75-77) as to advancements ■only relaté to cases of intestacy. These statutes have thus been ■construed by the authorities. Thompson v. Carmichael, 3 Sandf. Ch. 127, cited with approval in Clark v. Kingsley, 37 Hun, 247; Hays v. Hibbard, 3 Redf. Sur. 28; Redf. Pr. (3rd Ed.) 583. My judgment is, however, that the payments are ■sustainable upon the second ground. The bequests to all of the other children of the testatrix were adeemed to the extent of .'$5,000 by the advances of the testatrix in her lifetime, and in the distribution of the estate the executor was authorized to pay to Francis and George these respective amounts in question, to equalize them with the advances to the other children, and then to equally distribute the balance. It is perfectly clear from the evidence that it was the express intention of the testatrix to make an equal division of her property among her five children. She so provides by her will; but after its execution she proposes, ■during her lifetime, to make an equal division of her property to the extent of $5,000 to each. She carries out that purpose fully as to three of her children, one of whom is this contestant, Mrs. Williams, but fails as to Francis and George to the extent of these respective payments in question. To the extent, therefore, of these payments by the testatrix in her lifetime to each -child, Ms and her legacy or bequest is satisfied. Courts of equity have always treated advances by way of portions as a satisfaction of general legacies given by a parent or other person standing in loco parentis to a child. Eedf. Pr. (3rd Ed.) 583, and authorities there cited. Ademption is the extinction or satisfaction of a legacy by some act of the testator, which is equivalent to a revocation of the bequest, or indicates the intention to revoke, and the rule is applied where the testator is a parent of the legatee, or stands in loco parentis. The question of its application is made to depend upon the declared or presumed intention of the donor. Burnham x. Comfort, 108 N. Y. 535-539, 15 N. E. Rep. 710.

In Benjamin v. Dimmiclc, 4 Eedf. Sur. 7. the learned surrogate says: “There can be, no doubt that a legacy from a parent to a child may be adeemed in whole or in part, and the rule thereof may be deduced from the elementary writers upon the subject, as follows: That where a parent bequeathes a legacy to a child, and afterwards, in his lifetime, gives a portion or makes a gift to, or a provision for, the same child, even without expressing it to be in lieu of the legacy, if the gift or provision be certain, and not merely contingent, if no other object be pointed out, and if it be ejusdem generis, then it will be deemed an ademption of the legacy in to to, if greater than or equal to, and pro tanto, if less than, tire provision by the will. The provision by the will is presumed to be a portion, because it is a provision from a parent for his child, and the subsequent gift of a portion is presumed to be a satisfaction of such portion given by the will, either wholly or in part;” citing authorities.

Where a legatee, subsequent to the execution of the will, received from the testator property in lieu of the legacy, the legacy is satisfied. Snell v. Tuttle, 44 Hun, 324-331. Camp v. Camp, 18 Hun, 217, is not in conflict with this principle. In that case it appears that the advances were made prior to the making of the will. It is claimed that this principle of ademption is not applicable to a bequest of residue; but while the earlier authorities seem to have so indicated, yet the later ones hold the contrary. In Montefiore v. Guedalla, 1 De Gex, F. & J. 93, Lord Chancellor Campbell, writing the opinion, says (at page 99) :

“It has been said that there cannot be an ademption where a testamentary gift is of the residue of the testator’s property. This position rests upon no principle, and, if strictly acted upon, would produce great injustice. The doctrine of ademption has been established for the purpose of carrying into effect the intention of fathers of families in providing for their children, and of preventing particular children from obtaining double portions, contrary to said intention. The only reason for the exception is that a residue is uncertain, and may be worthless. * * * But if a testator, after directing his executor to pay debts, funeral expenses, and legacies, goes on to say, ‘And whereas, I wish all the residue of my personal property to be equally divided among my three children, I direct that each of them receive one-third of the residue,’ and afterwards he advances $5,000 to a daughter on her marriage, or to a son to purchase a commission in the army, can there be any doubt that he meant this sum to he deducted from the one-third of the residue coming to the daughter or the son '

Speaking of the cases to the contrary, he says: “The whole of that class of cases has been swept away by Thynne v. Glengall, 2 H. L. Cas. 131.” “Upon the whole [Lord Campbell still writing], I think the question whether a gift or residue does or does not operate as an ademption or satisfaction must depend upon the intention.”

The case of Eisner v. Koehler, 1 Dem. Sur. 277, was one of a bequest of the residuary estate, and the doctrine of advancements was applied. In Hays v. Hibbard, 3 Redf. Sur. 28, the learned surrogate holds that the principle of ademption does not apply to residuary legacies. He cites Rop. Leg. 376, wherein he says: “It is stated as a fourth exception to the general rule of presumptive advancement, where the bequest is uncertain in amount, that the devise of the residue, or of part of the residue, to a child, is not. adeemed by a subsequent advancement upon the legatee’s marriage,” etc.

He also cites Williams, Ex’rs. These authorities I do not think sustain the general proposition. The authors cited were treating of the “presumption” of ademption where there is no intention of the testator expressed in the will or other written instrument. Such a case was Hays v. Hubbard, supra, and it may be that, resting alone upon presumption, the learned surrogate was correct in the conclusion he reached as to that case, but evidently the authorities he cited do not sustain the general proposition that the principle of ademption does not apply to the residuary legacies.- The language quoted by him from Eoper expressly shows that the author is speaking of “presumptive advancements.” 2 Williams, Ex’rs, 1443, cited, is to the same effect, and holds that this presumption may be rebutted or confirmed of a different intention of the testator. In speaking of the ademption of residuary legacies in 2 Williams, Ex’rs, 1442, the author says: “It was formerly considered that where the bequest to the child is of a residue, or part of a residue, the subsequent advance cannot operate as an ademption, because such a gift cannot be considered as a legacy of a portion, which' must mean a legacy of a definite sum; but a contrary doctrine is now established.”

. In Hopwood v. Hopwood, 7 H. L. Cas. 728, it was declared that the presumption of law is against double portions, and that-where a sum of money is given by the will of the parent to a particular child, and a like sum afterwards secured by a settlement on the marriage of that child, there is a presumption in favor of the ademption of the legacy; and see Leighton v. Leighton, L. R. 8 Eq. 458. The American courts fully recognize the presumption against double portions. 2 Redf. Wills, 447. It is always a question of the intention of the testator. In this case the question does not rest solely upon presumption. The intention of the testatrix is clearly and explicitly made to appear ; she intended that an equal distribution of her estate should' be made, having in consideration a gift or advance to each child of the sum of $5,000, in cash or other property. The receipts-above mentioned, given by Francis and George, respectively, to the executor, show that each was to have an additional advance sufficient to make up the balance to each of the sum of $5,000. It also appears, from a further receipt given by George under-date of January 11, 1886, being shortly before the death of the testatrix, that she paid him $500 “on further account of the above-mentioned advance of five thousand dollar’s.” There is-no doubt as to the intention of the testatrix. The counsel for the contestant claims that the rule of ademption is only predicable of legacies of personal estate, and is not applicable to devises of realty, and cites the case of Burnham v. Comfort, 108 N. Y. 535, 15 N. E. Rep. 710, as sustaining such contention. The case cited does lay down that proposition, but it is not applicable to this case. Touching this question, the court rests-its decision upon the effect to be given to our statutes regulating the making of wills, and that the application of the rule as to-personalty to devisees of real property might work great mischief, and tend to endanger the safety of titles which depend for their security upon the conduit of a testamentary devise. The writing executed in that instance was not such an instrument as declared the alteration to be either a revocation or wholly incon■rgistent with the nature of the previous devise. In this case the-terms of the written receipt given by the children to tne testatrix show fully and clearly the purpose of the testatrix to be an alteration of her bequest to the extent of $5,000 to each, and that, unless each child received in full the $5,000, the equality of disposition expressed to be her purpose in her will would fail,, and, unless these two sons be paid their respective balances of $5,000, it would bring about a disposition entirely inconsistent with her previous bequest, and clearly declared and expressed intention of equality of disposition of her property. But in this case there is no devise of realty to the children. By her will the testatrix declares: “All the rest, residue and remainder of my estate, whether real or personal, * * * I give, devise and bequeath to my said executor, in trust to sell the same * * * within one year after my death, and the proceeds of' such sales, after deducting all necessary and proper expenses of such sales, to divide equally among my five children;” naming them.

Here was no devise of real estate to the children. It was to-the executor, in trust to sell the same and distribute the proceeds.. By equitable conversion the proceeds became personalty, and it was these proceeds that the testatrix gave to her children. But in either view it seems clear that this question of a devise of realty is not necessarily involved in the adjustment of the matters in controversy on this accounting, for it appears from the accounts that the executor has received of personal assets, concededly such, nearly $24,000, so that applying the rule of ademption and satisfaction to only a bequest of personalty, strictly such, the payments to Francis and George were properly made. I am therefore of the opinion that these payments to the two sons, Francis and George, were lawfully made to them by the executor on account of their distributive shares for the reasons and upon the grounds above stated.

Having reached that conclusion, it becomes unnecessary for me here to review in detail the facts and circumstances having relation to the other ground—that of estoppel. I have, however, carefully considered the evidence bearing upon that question, and without here reviewing and analyzing the same in detail, to fully point out the parts thereof which sustain my conclusion, I am of the opinion that an estoppel is established against Mrs. Williams. There is a sharp contention as to whether or not the payments were only to be made upon condition that the Greenwood cemetery plot should be conveyed to her; but it seems to me that the evidence shows quite clearly that at the interview in which these matters came first under consideration, after the death of the testatrix, being at the family homestead'at ÍTanuet, all the matters considered were separately disposed of and agreed upon, and that one was not made conditional upon the other. Mrs. Wingate, the daughter of Mrs. Williams, testifies that the three different matters—the payments to George and Francis, the trustee business, and the Greenwood cemetery lot—were spoken of in that order; and when asked if the Greenwood lot affair and the payments to her uncles were not mentioned at the same time, she answered, “One was mentioned previous to the other;” that the payments came first, and were agreed to, no one objecting, and they were all willing, then the trustee matter, and lastly the cemetery lot matter. Mrs. Williams herself testifies to no conditions. She says “they all consented to give the boys to make up the full amount what mother had intended for them.” In answer to the question, “When were those papers to be signed, or that money paid or to be paid?” she said, “There was no definité time for it.” Again: “At the FTanuet meeting, were there any papers agreed upon to be signed thereafter ? Answer. USTo.” In answer to the inquiry whether papers were to be prepared, she says, “Yes, sir; there were papers to be brought.” Then: “Question. What was said in relation to the payments of the money and as to those papers, and the signing of them—when Avas the money to be paid over ? Answer. Didn’t say when— Avhat time—it should be paid. Q. But Avith reference to the signing of the papers, when Avas it to be paid ? A. They didn’t specify any time. Q. What did you say in reply when they said they had concluded not to give you the Greenwood lot? A. Didn’t say anything.” It seems to me that the omy condition or understanding imposed was that no papers should become operative as to Mrs. Williams until submitted to her son for his approval, and not that these payments should not be made. Mrs. Wingate, when asked on her direct examination as to what was said at the ETanuet meeting in relation to paying over any money before the papers were signed, finally answered: “Isaac Hewton Williams said that he wished that all papers, all writings, be submitted to him before they were signed by any of the persons.” I am impressed by the evidence that Mrs. Williams gave her assent, without qualification, to the making of "these payments in order to equalize Francis and George with the other children, and withheld objections to the same baing made, knowing either that the same were being made, or were about being made, until the payments were actually made, and then first interposed her objections. It appears to me that after the ETanuet meeting the parties had their next meeting at Mr. Scott’s office, about March 10th, and that the release had been prepared for signature on that occasion. It seems to me this must be so, as there appears at the foot of the paper an acknowledgment for Mrs. Williams with the word “March” in it, thus indicating that the writing had been prepared and submitted at some meeting in March. The payments in question to George and Francis were made by checks, which, as also the receipts, bear date March 10th. Mr. Xroehl testifies, and so do others, that the release was then read. He states that on the same occasion, in answer to the question, “Do you know anything about the .payments of these amounts to Mr. George and Frank Turfler ?” he answered: “Yes, sir; after the paper was signed, upon the statement, he turned over the checks”—meaning the executor. The same day this meeting was had, the checks were delivered while Mrs. Williams was still present. These payments were made on this same occasion at Mr. Scott’s office. She made no objection. Mr. Scott’s testimony is to the same effect, except that he makes the occasion April 15th when the payment to each child was made of $2,500. In this latter I think he is in error,

as the exhibits show.. George 0. Turfleor’s testimony is in accord with that of Mr. Kroehl. An estoppel may arise although there was no designed fraud on the part of the party sought to-be estopped, and where there was no intent to mislead, but where what was said was intended to influence the action of the-party, and did influence him, and the duty rested upon the-party giving the information or making the statement, if bespoke at all, to have ascertained the actual facts, so as not to have misled the other party to his prejudice. An- estoppel may also arise from silence, as well as words, where there is a duty to speak, and knowing the circumstances requiring him to speak, keeps silent. Thompson v. Simpson, 128 N. Y. 270-288, 28 N. E. Rep. 627. “The authorities in this state are all harmonious on the subject of estoppel in, pais. When a party either by his declarations or conduct, has induced a third person to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission if the consequence would be to work an injury to such third person, or some person claiming under him.” Trustees v. Smith, 118 N. Y. 634-641,, 23 N. E. Rep. 1002. Let a decree be submitted for settlement and entry accordingly; costs to be allowed and adjusted on settlement of decree.

(Note on ademption of legacies:)

Definition.—General Observation.—When Thebe is Ademption.—When Thebe is Eot Ademption.—Residuary Legacy.—Ademption Pro Tanto.

Definition.

Ademption is defined as the act by which' a testator pays to-his legatee, in his lifetime, a general legacy which by his will he had proposed to give him at his death; also the act by which a specific legacy has become inoperative on account of the-testator having parted with the subject. (Anderson’s Dictionary of Law, p. 29; Cozzens v. Jamison, 12 Mo. Appeal, 456.)

General Observation.

Ademption is distinguished from satisfaction, in that in equity the latter word is defined as the donation of a thing, with the intention, express or implied, that it is to be an extinguishment of some existing right or claim. (Anderson’s Law Dictionary, p. 920.)

“The distinction between ademption and satisfaction lies in this: In ademption the former benefit is given by a will, which is a revocable instrument, and which the testator can alter as he pleases, and consequently when he gives benefits by a deed subsequently to the will, he may, either by express words, or by implication of law, substitute a second gift for the former, which he has the power of altering at his pleasure. Consequently, in this ease the law uses the word ademption because the bequest or devise contained in the will is thereby adeemed; that is, taken out of the will. But when a father, on the marriage of a child, enters into a covenant to settle either land or money, he is unable to adeem or alter that covenant; and if he gives benefits by his will to the same objects, and states that this is to be in satisfaction of the covenant, he necessarily gives the objects of the covenant the right to elect whether they will take under the covenant or whether they will take under the will. Therefore, this distinction is manifest In cases of satisfaction, the persons intended to be benefited by the covenant, who, for shortness, may be called the objects of the covenant, and the persons intended to be benefited by the bequest or devise—in other words, the objects of the bequest—must be the same. In cases of ademption, they may be, and frequently are, different.. The cases of Durham v. Wharton, 3 Cl. & F. 146, and of Thynne v. Glengall, 2 H. L. Cas. 131, afford striking and leading instances of each of these two cases.” (Chichester v. Coventry, 2 H. L. Cas. 71.)

Ademption is confined to legacies of personalty. It is not predicable of devises (Burnham v. Comfort, 108 N. Y. 535), and it is not applicable to cases of intestacy.

When There is Ademption.

A testator bequeathed by a codicil to his will the income of a certain fund to his daughter for life, and the principal upon her death to her children. A prior codicil, which was made applicable to subsequent codicils, declared that as testator mightmalce advancements to persons provided for in his will, such advances, if charged in his books of account, should be so much on account, of their legacies. The testator subsequently transferred the fund in question to a trustee for said daughter, and her children, and the daughter subsequently received the income. Held, that the legacy was adeemed. (Langdon v. Astor’s Executors, 16 N. Y. 9.)

A testator specifically bequeathed a bond and mortgage which was afterwards foreclosed, and the purchaser, the mortgagor, executed a new bond for his debt, secured by a new mortgage upon the same premises. Held, that the legacy was adeemed, although testator left a memorandum in his handwriting that the purchaser’s bond and mortgage was but a renewal of the bond and mortgage bequeathed, and that it was his intention that it should pass to the legatee. (Beck v. McGillis, 9 Barb. 35.)

A testator bequeathed to his executors a certain bond and mortgage (which was overdue at the date of his will and to which fact his attention was sharply called) in trust to pay the interest to his cousin for life, and upon his death to convert same into money and divide the proceeds amongst his said cousin’s children. The mortgage was soon afterwards paid up, and testator deposited the proceeds with a firm with whom they were thereafter continuously kept. Held, that the legacy was a specific legacy, and was therefore adeemed. (Abernathy v. Catlin, 2 Dem. 341—citing Ashburner v. McGuire, 2 Bro. C. C. 108; Pitt v. Cannelford, 3 Bro. C. C. 160; Stanley v. Potter, 2 Cox, 180; Badrick v. Stevens, 3 Bro. C. C. 431; Innes v. Johnson, 4 Ves. 568; Fryer v. Morris, 9 Ves. 360; Barker v. Rayner, 5 Madd. 208 ; 2 Russ. 122; Gardner v. Hatton, 6 Sim. 93.)

Téstator directed that on the death of his wife, to whom he gave a life interest in an undivided moiety of real estate, the same should be sold and the proceeds divided equally between his three daughters. Subsequently A., one of the daughters, accepted a conveyance from the testator and his co-owner of a portion of such real estate, and in consideration thereof executed a release of all her interest as heir-at-law of testator in said undivided moiety of real estate. Held, that as the real estate mentioned was directed to be converted into money at a future day, and the avails divided among the daughters, the rules applicable to personal bequests were to control, and that by executing the deed and release A. discharged the interest given to her by the will—distinguishing Burnham v. Comfort, 37 Hun, 216. The court said that the latter case does not hold that a devise cannot be satisfied by a subsequent conveyance of land, but that a devise cannot be satisfied by a subsequent payment of money. (Snell v. Tuttle, 44 Hun, 324.)

A testator gave, to each of four persons one share out of the1 four owned by him in the Passaic Water Enterprise held in trust for him, and he directed a trustee named by him to. transfer to said persons said shares, or the proceeds thereof, when realized, in the same manner as the said shares would liave been to testator. After the execution' of his will he sold out the so-called “shares” (which consisted of an undivided interest which decedent had in a joint business undertaking), and invested the greater part of the proceeds in the purchase of fifty bonds of a corporation known as the Passaic Water Company, thirty-eight of which bonds he had at his death. Held, that the legacies being specific, the effect of the sale was to cause an ademption thereof, and that the direction to the trustee did not show an intention to make the proceeds of the sale stand for the shares so that the bonds representing such proceeds should be deemed to be within the subject-matter of the bequests.

Testator added a writing below the attestation clause of his will, reciting the sale of the shares and purporting to give to each of the legatees general legacies in lieu thereof. Hold, that as the paper was not executed as a will, the beneficiaries took no interest thereunder, and that although it manifested an intention on testator’s part that the legatees of the shares should receive the proceeds of their sale, such intent was formed after the sale, and not at the time of the execution of the will. (Hosea v. Skinner, 32 Misc. Rep. 11—reversing Matter of Andrews, 25 Misc. Rep. 72.)

When There ts Hot Ademption.

A testatrix bequeathed to her mother the sum of $1,200 and interest on the same, contained in a certain bond and mortgage, for her life, and upon her death to testatrix’s husband. Held, that the legacy was general and not specific, and did not adeem by extinction of the mortgage in testatrix’s life. (Giddings v. Seward, 16 N. Y. 365.)

A testator by his will gave his daughter a legacy of $400, and subsequently handed her that sum as a present, and on the same day executed a codicil by which he gave the legacy of $400 on his daughter’s death without issue to certain persons. Held, that the legacy ivas not adeemed, as the testator recognized the legacy as a thing still in his mind, and remaining of force in his will. (DeGroff v. Terpenning, 14 Hun, 301.)

When testator gave advances to his children of unequal amounts, and then made a will dividing his property equally among his children, but making no reference to the prior advancements, held, that the advancements should not come into account in tire division. (Camp v. Camp, 18 Hun, 217-—reversing 2 Redf. 141.)

By different clauses of a testator’s will, gifts of stocks of two railroads owned by him were made to his children and other persons in various amounts. The railroads were subsequently consolidated, and the newly issued stock was sold by a committee of the testator, who had become insane. Held, that there was no ademption, as the new stock in substance took the place of the old, and the sale by the committee was in no sense a transaction of the testator. (Shethar v. Sherman, 65 How. Pr. 9— citing Simmons v. Vallance, 4 Bro. C. C. 345; Purse v. Snaplin, 1 Atk. 414; Sibley v. Perryn, 7 Ves. 523; Tifft v. Porter, 8 N. Y. 516; Langdon v. Astor, 1 Duer, 478-546, 16 N. Y. 33; Giddings v. Seward, 16 N. Y. 365; Sleech v. Thorington, 2 Ves. Sr. 560; Robinson v. Addison, 2 B. 515; Ashburner v. Maguire, 2 Bro. C. C. 108; Mytton v. Mytton, L. R. 19 Eq. 30: Bothamby v. Shearsan, L. R. 20 Eq. 304; Norris v. Executors Thompson, 2 McCarter, 493, 16 N. J. Eq. 250; Chaworth v. Beech, 4 Ves. 566.)

The rule of ademption is predicable of legacies of personal estate, and is not applicable to devises of realty. The reason for refusing to extend the rule to devisees of real estate is that to so extend it would repeal the statute which applies to the revocation of wills. A testator devised to his daughter certain real estate, and thereafter paid her a sum of money, which he intended to be in lieu of the devise, and it was so accepted by her at the time, and such acceptance was expressed in a receipt-she gave for the money. The testator did not subsequently alter his will. Held,, that as the signing of the receipt and the payment of the money did not constitute a revocation of the will within the meaning of the Revised Statutes (3 R. S., Banks, 7th Ed., 2286, 2288), the daughter was entitled to the real •estate devised to her. (Burnham v. Comfort, 108 N. Y. 535, affirming 37 Hun. 216—citing Davys v. Boucher, 3 Y. & C. Eq. Rep. 397; Langdon v. Astor’s Executors, 16 N. Y. 34; Clark v. Jetton, 5 Sneed, 229; Allen v. Allen, 13 So. Car. 512; Weston v. Johnson, 48 Ind. 1.)

Testator in his will prefaced a list of legacies, among which was one of $500 to plaintiff, by a statement that he had “at present” certain mentioned securities amounting to a certain sum; the legacies were tiren bequeathed, and all the residue of his personal estate given to his wife. He then mentioned that a certain further sum was due to him, and “when this is collected” he directed the payment thereout of certain legacies, including one of $100 to plaintiff, and the remainder of his personal estate he gave to- his wife. The debt due testator was paid to him during his life, and it was proved that, the executrix had received, and there was in her hands, enough to pay both legacies to plaintiff, and that she had appropriated the estate individually. Held, that both legacies were general, and not subject to ademption by the extinguishment of the securities' specified. (Glover v. Glover, 47 St. Rep. 765, 20 N. Y. Supp. 41.)

Although a will did not contain a residuary clause, testatrix ■clearly intended her daughter to be her residuary devisee and legatee by giving all her estate except a business carried on by testatrix and license thereto attached, which she bequeathed to her son, and she directed her daughter to pay out of a sum of $1,800 belonging to testatrix deposited in a bank in the daughter’s name, the sum of $1,500 to her said son and $50 each to her grandchildren. The $1.800 would have paid these legacies at the date of the null, but at the testatrix’s death nearly all the ■entire deposit had been withdrawn. The daughter accepted the .devise and bequest. The son brought an action to establish a charge of the legacy of $1,500 on the property devised to defendant. Held, that the legacy was demonstrative, and not specific, and that as the daughter accepted the devise, the latter became charged with payment of the $1,500. (Crawford v. McCarthy, 21 App. Div. 484, 47 N. Y. Supp. [81 St. Rep.] 436.)

Exsiduary Legacy.

It was formerly held that the principle of ademption did not apply to a residuary legacy (Hays v. Hibbard, 3 Redf. Sur. 28), but- the case in the text, and the authorities there cited, enunciate the contrary doctrine.

Auemptioe" Peo Taistto.

"Where the purpose of a gift is the benefit solely of the donee himself, he can claim the gift without applying it to the purpose, whether the purpose be in terms obligatory or not, and therefore a bequest to a church to pay off a mortgage will go totiie church, though part of the mortgage was paid in testator’s lifetime, but the legacy is adeemed, however, to the extent of the testatrix’s subscriptions toward paying off the mortgage. (Matter of Gasten, 16 Misc. 125, 74 St Rep. 538, 38 N. Y. Supp. 948.)

A legacy to a daughter is not adeemed by money gifts made by testator to such daughter prior to the execution of his will, especially when declarations of the testator are proved, showing that the moneys given were intended to be out and out gifts, and W'ere not to be deducted from the portion given her by will. E or is it adeemed pro tanto as to a small amount of such money gifts made subsequently to the wall, as such gift was but carrying out testator’s purpose entertained long prior thereto. (Matter of Townsend, 5 Dem. 147; affirmed by General Term, 14 St. Rep. 587; by Court of Appeals, 113 N. Y. 560, 23 St. Rep. 722.)


text:
      In re Odell’s Estate.

      (Surrogate’s Court, Westchester County,

      Filed December, 1892.)
    1. Will—Probate—Persons not cited.
    A petition by an heir and next of kin not cited on the probate, praying that the probate be revoked, will be denied, as the decree is binding on those cited, but the decree will be opened to allow petitioner to-file allegations against the validity of the will.
    2. Same-—-Reopening decree—Discretion.
    When the estate consists of realty and personalty, the court has no-ground for the exercise of discretion in reopening the decree as to the personalty, as the next of kin is absolutely entitled to an order opening the decree.
    3. Code Civ. Pro., sec. 2481, subd. 6—Sufficient cause.
    The expression “sufficient cause” in subd. 6, section 2481, Code Civ. Pro., relates only to the granting of a new trial, or a new hearing for fraud, etc., and not to the opening of- a decree.

      4. Same.
    Even if otherwise, it is “sufficient cause” for reopening a decree when petitioner was not cited on the probate of the will.
    Petition by John W. Purdy, an heir-atrlaw and next of kin, to revoke probate of will.
    Robert C. Taylor, for petitioner; Mitchell Levy, for executors.
   Coffin, S.

The prayer of the petition for the relief sought is too broad. On the facts stated it seems the court should have been asked merely to open the decree admitting the will to probate, so that the petitioner may have an opportunity of being-heard in opposition. The decree is conclusive against all who were cited, and, should it be opened for the purpose of making-the petitioner a party, so that he may file objections, it will be unnecessary to cite those who have already been cited. Theeourt had complete jurisdiction of the subject and of those persons, but not of the petitioner. Ho explanation is given as to* why he was not cited. Perhaps he was supposed to be dead, or the executors were uninformed as to his relationship to the-deceased. However that may be, the fact that he is an heir at law and next of bin is not disputed. Of course, had the deceased died intestate, the petitioner would have been entitled to his share of her estate, and he cannot be deprived of his right by an adjudication in a proceeding to Avhieh he was not a party. Had he been cited, he would have had a right to shoAV,, if he could, that the will was invalid on any proper ground. Helias not had such opportunity, and it should be accorded to him. It is always the practice before probate, Avhere it is discovered that a necessary party has not been cited, to suspend the proceeding until he is brought in ; and no good reason is discovered AA'hy such a person, Avho Avas ignorant of the proceeding, should not be made a party, and stand on precisely the same ground as. to his rights as he would have done if made a party originally.

It is claimed on behalf of the executors that it is discretionary with the court to open the decree or not, and a strong reason why it should not be done in this case is that the bulk of the -estate has already been distributed in good faith by the executors. It can be regarded as discretionary only so far as the •claim is confined to realty, as in the case of Bailey v. Stewart, 2 Redf. Sur. 212; Bailey v. Hilton, 14 Hun, 3, where it was held that the discretion was properly exercised, as the petitioner had an ample remedy at law to recover his interest in the realty. What, if any, remedy there would be in this case to- recover the -share of the personalty already distributed in good faith, it is not- necessary to inquire. But it is claimed on behalf of the petitioner that, inasmuch as the will directs a sale of the realty, the proceeds became personalty. This would be true if the will is to stand, and is not true if it should, for any reason, be overthrown by any effort of the petitioner, and his prayer is that it be declared not to be the last will and testament of the deceased. So far as this motion is concerned, the portion of the realty ordered by the will to be sold must, therefore, be regarded as real estate, but., as the estate consisted of both real and personal, it would seem that there is no ground for the exercise of discretion as to the personalty, and that, as far as the latter is concerned, the petitioner is absolutely entitled to an order opening the decree. He cannot be deprived of property rights given him by statute, without being afforded an opportunity to be heard.

On behalf of the executors it is contended that no “sufficient cause” is shown, as is required by subdivision 6 of section 2481 of the Code. That expression, however, seems to relate only to the granting of a new trial, or a new hearing for fraud, etc., and not at all to opening, etc., of a decree. But while this may be so, abundant cause is shown in the fact that a person who was entitled to be cited was not made a party, and had no knowledge or notice of a proceeding which was calculated to deprive him of his possible rights as heir-at-law and next of kin. This is regarded as quite “sufficient cause.” As some of the estate consisted of realty, yet a considerable portion, to wit, about $65,-000, was personal property, as to which the petitioner has a •clear right to an order opening the decree; it does not seem practicable or proper to open the door half way, and hear him so far as the latter is concerned, and deny him a hearing as to the former, in the exercise of a permissible discretion. The •decree will therefore be opened so far as the petitioner is concerned, and as he is now before the court he must forthwith file his allegations against the validity of the will and codicil, if he have any, and then the executors must reprove the same by the subscribing witnesses, and such proceedings be had as are usual in the ordinary cases of probate. While it will be the duty of the executors to endeavor to sustain the validity of the will and •codicil, any person having an interest in supporting them will be allowed to aid them in that effort. The prayer of the petition that the will be decreed not to be the last "will of the deceased, and that the probate thereof be revoked and annulled, is denied; but the decree will be opened for the purpose above indicated, and an order entered accordingly.


text:
      In re Lyons’ Estate.

      (Surrogate’s Court, Westchester County,

      Filed December, 1892.)
    1. Gift of personalty—Constructive delivery.
    On application by a legatee to compel payment of a legacy of $200, the executor objected that petitioner had not paid three notes of $100 each, which testatrix had indorsed for petitioner and paid. Petitioner alleged that testatrix had given her the notes. It appeared that testatrix paid and took up the notes, and then, while boarding with petitioner, made her will, bequeathing petitioner the legacy of $200, telling petitioner that she had cancelled the notes, and on its being suggested that petitioner witness her will, decedent stated that petitioner could not be a witness, as she might lose her legacy. It was also in evidence that testatrix requested a lady friend to deliver decedent’s papers to latter’s uncle after her death, and that among the papers so delivered were the notes in question, which were uncancelled. Seld, that there was no actual or constructive delivery of the notes so as to make a perfect gift of them to petitioner.

      2. Legacy—Payment—Proceedings—Jurisdiction.
    In a proceeding by a legatee to compel payment of a legacy, there-must be a petition, citation and answer under Code Civ. Pro., sections 2717 and 2718, and proof under subd. 2, section 2718 that there is sufficient personal property to pay the legacy, otherwise the surrogate does not acquire jurisdiction.
    Application by Elizabeth Blakeman, to compel payment of a legacy.
    L. T. Tale, for petitioner; Wm. F. Purdy, for the executors.
   Coffin, S.

Gifts of chattels personal are the act of of transferring the right and the possession of them, whereby one person renounces, and another immediately acquires, all title and interest therein. A trae and proper gift is always accompanied by delivery of possession, and takes effect- immediately. It. may be regarded as axiomatic that, without delivery of the subject of it, there is no gift. Where delivery accompanies the words, of gift, the gift is perfect, and no question can arise in regard thereto, but there may be a constructive delivery, determinable by the facts established. Most of the controversies on the subject of gifts have arisen in regard to this last species of delivery, the facts relating thereto being as various as the cases are in' number; but in all of them the underlying question was, had there been a delivery? Of course, a so-called gift, without a delivery, actual or-constructive, may be revoked. Mow, in this case, no actual delivery of the subject of the gift is pretended, and all, therefore, that remains, is to determine whether the facts stated constitute a constructive delivery.

The facts relied upon by the petitioner are briefly these: That deceased boarded with the petitioner, after she had paid and taken up the notes as indorser, and paid her board without any pretense or suggestion that- the petitioner was indebted to her; that the testatrix, while so hoarding, executed her will, in. and by which she bequeathed to the petitioner the sum of $200; that the testatrix told petitioner that she had cancelled said notes, and that she owed her nothing; that on the execution of the will it was suggestéd to the deceased that the petitioner should be one of the witnesses thereto, whereupon the deceased stated that the petitioner was a legatee therein to the extent of $200, and could not properly be a witness, as she might thus lose the legacy, and she wanted her to have the whole of it; that she declared said notes had been paid. And it is further shown that the testatrix, shortly before her death, informed a lady friend about her papers, and requested her, after her death, to ■deliver them to her uncle, Theodore F. Bayles, who is one of the executors of her will, which she did, and that on examining said papers the three notes were found among them. On this state of facts, can we say there was a delivery of the notes,- actual or constructive ? Clearly not the former, and, it seems to me equally clear, not the latter. . The petitioner does not state that she had ever paid the notes, nor does it appear that they had ever been cancelled; but by direction of the deceased they passed into the hands of the executor, and thus they became subsisting liabilities of the petitioner to the testatrix. If the latter really intended to give them, it uras a simple matter to have delivered them to the former. If she had intended to cancel them, that was also a simple matter for her to have done. But she did neither, and left them as a part- of the assets o-f her estate.

This matter has come before the court in an informal manner. No petition has been presented, or citation issued, as provided by sections 2717 and 2718 of the Code, nor answer filed under the provision of subdivision 1 of the latter section; nor has it been proved, under subdivision 2 of the latter section, that there is sufficient personal property of the estate to pay said claim as therein provided. The parties simply appeared in court, and the affidavit of the legatee, wdtb other affidavits annexed, was presented, and the executors objected orally that the facts alleged therein did not prove a gift of the notes. Under these circumstances, it is more than doubtful whether the court has obtained any jurisdiction in the premises, but, out of deference to the learned counsel engaged, has proceeded to give some consideration to the merits of the case. I think the statute was intended to deprive the surrogate of jurisdiction over such a question in a proceeding of this character. The application must be dismissed, but without prejudice to an action or accounting in behalf of the applicant.


author: Sanderson, S.

text:
      In re Williams' Estate.
    (1 Misc. 440.)

      (Surrogate’s Court, Greene County,

      Filed December, 1892.)
    1. Will—Statute against perpetuities.
    A testator left his personalty to the Trustees of the New York Annual Conference of the Methodist Episcopal Church, upon trust to apply the interest annually as salary of the pastor of St. Paul’s Methodist Episcopal Church at Athens, Greene County, New York, provided that if the said St. Paul’s Church should erect a parsonage for its pastor it might draw upon said Trustees for the amount necessary therefor, and provided further that if the last mentioned church should become extinct, the Trustees should turn over the trust funds to the Board of Church Extension of the Methodist Episcopal Church. Held, that as there was no limitation upon the suspension of the absolute ownership of testator’s personal property, except at the termination of the corporate existence of St. Paul’s Methodist Episcopal Church, and as there was no limitation of the time for the erection of the parsonage, the will was contrary to 1 Rev. St. p. 773, sec. 1, providing that the absolute ownership of personal property should not be suspended for a longer period than two lives in being at testator’s ■ death, even although (having reference to the first provision) the Methodist Church at Athens had, before testator died, purchased a parsonage which was not free from debt, as it was the nature, not the. execution, of the power that determined its validity.
    2. Same—Powers of corporations.
    In such case the corporate powers of the Trustees of the New York Annual Conference of the Methodist Episcopal Church did not include1 the right to act as trustees of the property given them and pay over the income to the pastor of St. Paul’s Church as one of the class of ministers mentioned in the statutes of incorporation (Laws 1843, eh. 131; Laws 1887, ch. 379), which provided that the trustees might take-by devise or purchase, and that they should take charge of all property belonging to the New York Annual Conference, so far as the latter might direct, and appropriate same for the benefit of the itinerant, supernumerary and superannuated preachers and widows and orphans, of deceased preachers in such manner as the Conference might direct, as the capacity to take a devise meant a legal devise, not a devise void under the statute, and there was no provision for the trustees to hold, funds for the building of- parsonages.
    Application, to revoke probate of will and letters of administration c. t. a.
    W. Irving Jennings, for proponent; J. A. & A. C. Griswold, for contestants.
   Sanderson, S.

John C. Williams died at Athens on the 29th day of July, 1891, in the eighty-second year of his age. His will bears date October 30, 1884. The disposing part of it reads as follows:

“I give and bequeath all of my personal estate, goods and chattels, of what nature or kind soever,, to the Trustees of the Hew York Annual Conference of the Methodist Episcopal Church, to be held in trust by them, and the interest thereof applied each year on salary of the pastor of the St. Paul’s Methodist Episcopal Church, situated at Athens, Greene County, Hew York.

“The above will and testament is subject to the following-conditions: (1) If the trustees of the St. Paul’s Methodist Episcopal Church, situated at Athens, Greene County, Hew York, erect a parsonage for the sole use and benefit of pastor of said church, they are authorized to draw upon the Trustees of the Hew York Annual Conference of the Methodist Episcopal Church for the amount necessary to secure the erection of said parsonage, free of debt. (2) If ever the society now known-under the corporate name of St. Paul’s Methodist Episcopal Church, situated at Athens, Greene County, Hew York, should become extinct, the Trustees of the Hew York Annual Conference of the Methodist Episconal Church are authorized to turn over to the Board of Church Extension of the Methodist Episcopal Church the amount held in trust by them, under the powers vested in them by this will and testament.”

Yo executors are named in the will. The theory of the will is to leave the personal property of the testator in trust during the corporate existence of St. Paul’s Methodist Episcopal ■Church at Athens, with the exception of a part of it that may be applied to the erection of a parsonage. The Trustees of the Yew York Annual Conference are the trustees under the will, ■and the pastor of St. Paul’s Methodist Episcopal Church at Athens is the principal beneficiary. The legal title to the personal property of the testator is in the trastees, without any power of disposal of the same. They must keep it invested in ■order to produce an income, and they are authorized to turn •over to the Board of Church Extension of the Methodist Episcopal Church the amount held in trust by them in case the Methodist Church at Athens becomes extinct. It would be a clear violation of the duty of the trustees to dispose of the principal fund. The absolute ownership of the property is therefore suspended during a long period of time, unlimited by lives in being. Adams v. Perry, 43 N. Y. 487, 499. The Revised Statutes provide as follows:

“The absolute ownership of personal property shall not be .suspended by any limitation or condition -whatever for a longer period than during the continuance, and until the termination, •of not more than two lives in being at the date of the instrument containing such limitation or condition, or, if such instrument be a will, for not more than two lives in being at the death •of the testator.” 1 Rev. St. 773, section 1.

There is no limitation whatever in the will in question upon the suspension of the absolute ownership of the property of the testator, except at the termination of the corporate existence of St. Paul’s Methodist Episcopal Church at Athens. The will is therefore contrary to the statute, and is clearly void, unless-it can be saved by other provisions of law. An examination of the decisions of the Court of Appeals, in cases similar to the one in question, will show what application they make of this •statute. In Adams v. Perry, 43 N. Y. 487, the twentieth clause of the will provides that, if the donees under the will (in this case an incorporated academy) fail to carry out the provisions of the will, the donation is void. It was held that this clause of the will is void because it violates the law against perpetuities. The fourth clause of the will required the executors to invest the residue of the real and personal property, and pay over the income annually to the Lowville Academy. It was held that this clause was also void, as contrary to the statute above cited. In Cottman v. Grace, 112 N. Y. 299, 19 N. E. Rep. 839, where the will provided that the mayor of Yew York and others should be trustees of the property of the testator for the purpose of erecting and maintaining a library, it was held that this provision was void, for the reason that it suspended the power of alienation or of the absolute ownership of personal property for more than two lives in being. In Read v. Williams, 125 N. Y. 560, 567, 26 N. E. Rep. 730, the executors were directed to set apart a trust fund to be perpetually kept, and apply tire income for cemetery purposes. This clause was held void. In Fosdick v. Town of Hempstead, 125 N. Y. 581, 26 N. E. Rep. 801, where the will made a bequest to the executors for the permanent endowment of a school, the legacy was held void. In the same will a bequest to the town of Hempstead for the support of the poor of the town was held void, on the ground that the beneficiaries were not sufficiently defined, and on the further ground that such a trust was not within the corporate or administrative work of the town. The condition made in the will of the testator that, if the trustees of tire Methodist 'Church at Athens should erect a parsonage, they are authorized to draw upon the trustees named in the will for an amount sufficient to erect the parsonage free from debt, is void for the same reason, viz., that there is no limitation as to time for the erection of the parsonage, so as to bring it wfithin the purview of the statute. It is obvious that the trustees under the will must hold the trust fund until the trustees of the church should see fit to build a parsonage. This might be a longer or shorter time than that of the continuance of two lives in being. The statute leaves the time in the discretion of no one. The lives, during the continuance of which the absolute ownership of personal property may be suspended, must be named in the instrument making the gift. Proponents seek to overcome this difficulty by showing that the Methodist Church at Athens has already purchased a parsonage, and had done so before testator died, and that the same is not free of debt. Assuming that the clause of the will now under consideration admits of the construction that would cover the purchase, as well as the erection, of a parsonage, the difficulty is inherent in the will itself. It is not the execution, but the nature, of the power that determines whether it is valid or not. Tilden v. Green, 130 N. Y. 29, 52, 28 N. E. Rep. 880. Both of the above provisions of the will would have been saved if the estate of the testator had been left to the Methodist Church at Athens for the purposes above mentioned. The support of its pastor and the erection of a parsonage are within the powers and duties of a religious corporation. The legacy would not have then been regarded as a “trust,” within the meaning of the statute, and there would have been no suspension of absolute ownership-. Wetmore v. Parker, 52 N. Y. 450; Williams v. Society, 64 Hun, 163, 18 N. Y. Supp. 820. But this is not the theory of the will. As it is now, the Methodist Church at Athens has no control over the fund during the continuance of the trust.

The last clause in the will, which authorizes the Trustees of the Hew York Annual Conference to pay over the trust fund to-the Board of Church Extension of the Methodist Episcopal Church, if ever the aforesaid Methodist Church at Athens becomes- extinct, is hopelessly bad, and no attempt is made on the argument to defend it. It is claimed by the counsel for the proponents that while the absolute ownership of the trust fund mentioned in the will is not limited upon lives in being, as re quired by the statute, the corporate powers of the Trustees, of the Hew York Annual Conference of the Methodist Episcopal Church include the right to act as trustees of legacies given them, and pay over the income to the itinerant, supernumerary,- and superannuated ministers of the Methodist Episcopal Church connected with the Mew York Annual Conference, and that the pastor of St. Paul’s Methodist Church at Athens belongs to this class of ministers. The trustees aforesaid are themselves an incorporated body. The act of incorporation provides that the said trustees. are capable of taking by devise or purchase. The act further provides that “the said trastees shall take charge of all funds, personal and real estate whatsoever, now belonging, or which shall hereafter belong, to the said Mew York Annual Conference, so far as the said conference shall direct, and no further; and the said trustees shall appropriate the said property, and the avails of it, -for the benefit of the itinerant, supernumerary, and superannuated preachers, and the widows and orphans of deceased preachers, in such manner as the said conference has directed, and shall from time to time direct, and no other.” Laws 1843, ch. 131; Laws 1887, ch. 379. These are the only provisions that are claimed to support the contention of the proponents in this case. It is manifest that they fall far short of giving the corporate powder for the performance of the trusts in this will. There is no provision for the said trustees to hold funds for the building of parsonages. The capacity to take by devise means a legal devise. It does not include a devise void under the statute. If there were no provision for them to take by devise, they could not take at all under a will. Corporations can do nothing except what they are authorized to do by law. All the property that the trustees are allowed to take under the above-quoted section of their charter is what belongs to conference, and only so much of that as the latter body may direct. The disposition of it is also completely under the control of conference, which is the governing body. The legacy in the will of the testator is not the property of conference, nor is the trust for the use of it in any way under its management. The trustees, as incorporated, and the Mew York Annual Conference, are separate bodies. As was said in Fosdick v. Town of Hempstead, supra, adapting the language there used to the facts of this case, a trust such as is mentioned in this will is not within the corporate or administrative work of the said trustees. It is a case of ultra vires. They have no power to act. It follows that, if the bequest was otherwise good, the said trustees could not perform the duties' of the trust in this will, and their trusteeship would fail.

The will of John C. Williams was admitted to probate September 7, 1891. A petition had been filed by the treasurer of the Trustees of the Hew York Annual Conference, stating, among other things, that said Williams had died, leaving no next of kin him surviving. A citation was issued to the public administrator, and on its return, no one appearing to oppose the probate of the will, proof was made by the subscribing witnesses of its due execution. On the 18th of April, 1892, Alida C. Yager made application to this court for a decree revoking the probate of said will, and the letters of administration with the will annexed which had been issued thereon, stating, among other things, that said petitioner and Snyder Pelham were ■second cousins of said Williams, and had received no notice of the proceedings for the proof of his will. Subsequently an order was made opening the decree for the probate of said will, and said petitioner and Snyder Pelham by a supplemental citation made parties; whereupon said Yager and Pelham filed objections to the validity and due execution of said will. The' invalidity of the last will and testament of said John C. Williams, deceased, having now been established, a decree must be entered revoking the former probate of said will, and the letters of administration with the will annexed issued to St. Paul’s Methodist Episcopal Church of Athens and Ewing A. Chase, and refusing to admit said will to probate.