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      In re Archer.

      (Surrogate’s Court, Rockland County,

      Filed March 10, 1892.)
    1. Executors—Accounting—Liability fob profits of business.
    When the profits of a business carried on by the executors jointly with a third person are not accounted for during a certain period, and there is no proof that the same were received by the accounting executors, or that the same were lost to the estate by their negligence, they should not be charged therewith, especially upon the contention of a contestant who was himself an executor during the period in question, and who had special supervision over the business out of which the profits arose, but who had been subsequently removed from the executorship.
    2. Same—Trust estate—Liability for repairs and taxes.
    Testator devised all his property to his executors upon trust to receive the income thereof during the life of his widow, and pay the same to his widow and children, and he directed that should his sons C. and G-. and his wife desire to reside in his dwelling house they might do so without paying rent therefor during his wife’s lifetime, each paying one-third of the living expenses of the household. Held, that the widow and such children did not take an estate in the dwelling house analogous to a life estate, so as to charge them with repairs and taxes, as the executors took a legal title, with the duty not only of receiving the income, but of discharging thereout all taxes, insurance and repairs, and pay over the balance in accordance with the directions of the will.

      3. Same—Set-oee.
    To entitle the executors to credit for the price of goods of the estate sold by them, and which the purchaser owes the estate, it should be shown to be uncollectible without their fault, or that actual credit has been given (and not merely intended to be given) in the nature of a payment or set-off on an account or claim against the estate.
    4. Same—Proof of payment—Voucher.
    When there is no voucher for an expenditure, the burden is upon the executors to establish the credit by the uncontradicted oath of the accounting party, stating positively the fact of payment, etc. Code Civ. Pro. sec. 2734.
    5. Same—Debt due by a contesting executor.
    Contestant will be charged with a debt due by him to the estate, when the same appears by the evidence of one of the executors to be the balance due by contestant out of wood and 'brick transactions between him and the estate, although the contestant claims that the item was the amount of a loan made by him to the executors and repaid to him, when his testimony is unsupported, and as he was himself an acting executor at the time, he could have had an entry made in the executors’ books, showing that it was a loan, the actual entry being “Dif. in brick and wood account, $277.66.”
    l
    6. Expenses of administration—Reasonableness of expenditure.
    Items of an executors’ account for administration expenses, including professional services, in the absence of proof that such services were necessary for the protection or administration of the estate, and that the sum charged is reasonable in amount, should be disallowed.
    7. Executors—Trust estate—Right to rental income.
    Testator provided that should his son (the contestant) desire to reside where he now does (being a dwelling, part of testator’s estate), he might do so without paying any rent during the testator’s wife’s lifetime. Contestant, after living in the dwelling for some time, removed elsewhere during the widow’s life, whereupon the executors (who were directed by the will to receive the income of testator's property and apply the same as directed) let same to other tenants and received the rents thereof. Held, that the contestant was not entitled to such rents, as the will gave him only a right of occupancy during the widow’s life, and that they belonged to the trust estate.
    8. Same-—Purchase by executor individually.
    When it appeared that the one-half interest in a barge, the other half of which was owned by the estate, was purchased for a consideration of $2,300, and the bill of sale thereof taken in the name of one of the executors, who claimed that he purchased individually, but all the circumstances connected with the purchase and the relation of the parties, showed that the purchase was in the interest of the estate, the profits of the barge paying the purchase money, save $50 paid by the executor to whom the bill of sale was given. Held, that the purchase was one for the estate, and that the property thereby acquired, and the earnings thereof, should be accounted for as estate property and assets.
    Judicial settlement of accounts of executors of Michael A. Archer, deceased.
    Irving Brown, for executors; Alonzo Wheeler, for contestants.
   Weiant, S.

The testator’s will was admitted to probate about the year 1881. Charles D. Archer and Allison M. Archer, the contestant, were appointed executors thereof, and authorized to then qualify. George A. Archer was naméd also as an executor, but not to qualify until he arrived at 21 years -of age. Charles and Allison qualified at once, and entered upon their duties. George qualified in about the year 1883, on his arrival at 21 years of age. In a proceeding commenced in January, 1888, Allison was enjoined from acting further as executor, and removed as such later in said year by a decree in such proceeding. Since the commencement of that proceeding the accounting executors have continued to act in the adminis^ .tration of the estate. This proceeding is to settle and adjust their accounts.

In the consideration of the questions submitted to me for my determination I shall follow the order in which the same are presented by the counsel for the contestant, Allison M. Archer, who alone interposes objections. His first claim is that the ' accounting executors should be charged for the half earnings of a barge known as the M. A. Archer for a portion of the year 1885 and the whole of the year 1880. This was a vessel constructed in the year 1883 for the freighting, of bricks from an estate brickyard. The arrangement under which this vessel was to be constructed and paid for seems to have been made through one T. W. Johnson, whereby the Archer estate was to become half owner and Johnson the other half owner, and the barge was to be provided with freight from the Archer brickyard. The Archers were to pay in part, and the remaining portion, one-half its cost, was to come from the earnings of the vessel. The barge cost $5,173.16. The Archer estate paid to the builders $1,000, and to Johnson $329.22, on account of their half of such cost, leaving a balance of $1,257.36 to be paid by the earnings of the vessel. It appears from the testimony that about July 5, 1884,.the gross earnings of the barge had reached $5,717.27, which, after deducting the running expenses of $2,633.10, left a net result of $3,084.17, to one-half of which the estate was entitled to credit in reimbursing Johnson. Evidently the whole of one-half of these earnings was not applied towards the payment of the balance due for the purchase price. Some other application of a portion of them must have been made, for it appears without contradiction that about January 6, 1885, Johnson and the executors had a settlement of the barge matters, and there then appeared to be a balance still •owing on the Archer half of the barge of $149.02. It seems to be conceded that for the years 1885 and 1886 following this settlement and the fixing of such balance, Johnson, as the master and part owner of this vessel, continued to operate the same as theretofore, receiving the freights and paying the expenses thereof. While for the preceding years the contestant, as an ■executor, kept the accounts of the barge, thereafter, for some reason undisclosed, he ceased doing so, and consequently the •estate has no account of the earnings of the barge for either of the years 1885 or 1886. Johnson seems to have kept the only accounts, and to have received all the earnings. It is pretty ■clearly shown that in the early part of the season of 1885 the earnings of the vessel were sufficient to pay Johnson in full for the balance found due him in Januarv preceding. The contestant testifies that he received no part of the barge earnings for •either of those years, and the accounting executors deny that they ever received the same. They concede the receipt of two-payments of $50 and $160, respectively, arising out of some damage to the barge, and that thereafter there were earnings due the estate, but deny that they ever received any part of the same. Charles says that either his brother Allison or Johnson had these earnings. Allison denies the receipt of them, and thus from the testimony Johnson appears to be the one who has received and retained them. Johnson absconded some years since, and thus wre have no testimony from him disclosing whether or not he ever paid the same over to either executor. The amount'of these earnings thus left unaccounted for by any one is considerable. It seems from the evidence that for the balance of the year 1885 the one-half earnings of the barge approximated $600, and for the year 1886 the approximate sum of $800; thus making an amount of some $1,400 unaccounted for by either executors. Without some proof that the same were received by the accounting executors, or were lost to the estate because of their negligence in the administration of the estate they should not be charged with these earnings, upon the contention of this contestant. He was also an executor during-these years, and also during 1887, and if these earnings were lost to the estate he was at fault also, because of his failure to collect the same. It was as much his duty as that of his, brothers to give this matter his care and' attention. Indeed, from the course of business between the executors in the management of the estate the barge matter had been one under the special supervision of the contestant. He is the only contestant, and his claim comes with less force than if made by one interested in the estate, but who had not participated in its administration. It seems that, as matter of law, he is precluded from charging the other executors. In re Niles, 113 N. Y. 547, 21 N. E. Rep. 687, and cases cited.

As to the balance of the earnings of the barge for the year 1888, of $420.37, the executors concede that the same is correct, and that they should be charged therewith. The counsel for the contestant claims tha +he item of credit of $31.50, “freight on wood,” in schedule 1, No. 8, of the accounts, should be disallowed, on the ground that the proof shows it to be a part of the item of $122.19, in the same schedule, “A. M. Archer, Agt.” The testimony of the contestant, Allison M. Archer, is to the effect that but $90 of this latter sum was all that was actually paid; thau the payment was by check, which was produced and put in evidence. He says that this $122.19 was for wood that he had furnished the estate, and that this $90 was paid to him, and the balance of $31.50 to the captain of the vessel that delivered the wood. Neither of the executors denies the truthfulness of this version of the transaction, and I therefore find that the credit of the $122.19 is erroneous, and the same should be disallowed, except to the amount of $90, unless vouchers are produced for both of the payments claimed. The evidence shows, and the executors’ counsel substantially concedes, that certain items of credits in the accounts should be corrected by redxicing the same as follows: Bill of James Osborne, $10.42; bill of Daniel D. Williams, $2.60; bill of Edward J. Peck, $12.69 ; Glassing bill, $1.50; Blauvelt bill, $10.04; also an error of $5.50 in the item of $43.50 for roller, and $4 paid to Dr. Owen. In regard to the payment to William Decker of $73.46, his testimony shows that but $3 of this bill was for work done for the estate, and that the rest was for services at the homestead, for which the contestant was not bound to contribute.. This, then, should be corrected so that the executors receive credit on this accounting for the $3 only. The contestant’s counsel objects to the allowance of any credits for expenditures upon the homestead dwelling and other buildings appertaining-thereto. The particular items objected to are the bills of George Bedner, Gordon & Dutcher, Lewis W. King, all for painting; Springsteen & Gourlev, $8.80, carpentering; O. T. Beynolds, for paints; and also all taxes levied upon and paid for the homestead property. He bases his objection upon the ground that the widow and the two sons, Charles and George, are, under the will, given an interest or estate in such homestead analogous to a life estate, and that they are personally) as such tenants,. -obligated in law to pay for all such repairs and to discharge such taxes. If such is the interest or estate given, it would seem that the objection is well taken, but I do not construe the provisions of the will as devising such an estate. The testator devises and bequeaths all of his property, real and personal, to his executors, “in trust to receive the rents, issues and profits thereof for and during the lifetime of my widow, Clarissa A. Archer, and apply the same to the use of the following persons, .as follows: Pay one-third thereof to my said wife during her lifetime, and the other two-thirds thereof to my three sons, Alli.son M. Archer, Charles D. Archer, and George Archer, in equal proportion during the same time.” The testator then makes this further provision:

“Should my sons Charles and George and my said wife desire to continue to reside in my dwelling house where I now reside, then my will is that they may occupy my said dwelling house, and the lot and barn used therewith, and the furniture and' property in the house and barn, so long as they desire so to •do, without, paying rent therefor during the lifetime of my said wife, each paying one-third of the actual living expenses ■of the household.” “Should my son Allison desire to reside where he now does, my will is that he may do so without paying any rent during the lifetime of my said wife.” “Should my three sons and my wife desire my son Allison and his family to reside with them where I now reside, then my will is that he may do so, so long as they desire.” “The provisions herein made for my said wife are in. lieu of her right of dower in my property.”

Thus it appears that the estate is devised in trust to the executors, including the homestead dwelling, lot, and barn, and in them was lodged the legal title, with the duty of maintaining •and protecting the same during the continuance of the trust, •during the widow’s lifetime (Stevenson v. Lesley, 70 N. Y. 512; Crooke v. County of Kings, 97 N. Y. 421) ; and it was their duty to not only receive such rents, income and profits, hut out of the same to pay and discharge all taxes, insurance and repairs, and pay over the balance in accordance with the directions of the will. In re Brewer, 43 Hun, 597; Young v. Brush, 28 N. Y. 667. A trustee may, at the expense of the estate, cause necessary repairs to be made to the buildings. In re Odell’s Estate (Surr.), 4 N. Y. Supp. 463; In re Jones, 37 Hun, 430. Here the entire estate is given in one general trust, and the entire estate must therefore discharge such liabilities. I do not see that any discrimination can he made either in favor of or against any party for expenses incurred as to any particular part or portion of the estate. The testator clearly intended to merge the whole income of the estate, and to have the same distributed or paid over as directed, after deducting therefrom all proper expenditures in maintaining and preserving the trust properties and the expenses of administering the trust. The right to occupy the dwelling and homestead property given to the widow and two sons was not intended to divest the title and supervision of the executors of that portion of the estate, nor to relieve them from the care and protection of the same. The testator relieves the widow and sons from paying rent, and only imposes upon them the payment of the “actual living expenses of the household.” If it was his purpose to have them pay or to he charged with the further expenses of repairs and taxes, it would seem that he would so have expressed his wishes. He therefore left that property, as well as all other, including also the premises where the contestant then resided, and a right of occupancy of which was given to him free of rental, also, during the lifetime of the widow, under the charge of the executors. It therefore appears that these items of payments for repairs and taxes were properly chargeable to the estate generally, and the credits in their accounts should stand. Hancox v. Meeker, 95 N. Y. 528.

The item of $90.50, as paid to Jones & Furman, is not properly a credit, as the testimony stands. It was for coal sold to •that firm, and for which they owe the estate. To entitle the executors to such credit it should be shown to be uncollectible without their fault, or that actual credit had been given in the nature of a payment or set-off on an account or claim against the estate. This latter is what it is claimed 'to be done upon a settlement or adjustment with Jones & Furman, but until that is done the credit cannot stand. Charles Archer’s testimony shows that no actual credit or payment had- been allowed by Jones & Furman.

The item of $15.70 to C. 0. Cooper for hay is not established. Allison Archer testifies that the hay was for the private or individual purposes at the homestead, and Charles has no recollection about it. I find no voucher, and the burden is upon the executors to establish the credit. To establish such an expenditure, the same must, where there is no voucher, “be supported” by the “uncontradicted oath of the accounting party, stating positively the fact of payment,” etc. Code Civil Pro. section 2734.

Objection is made to the credit of the sum of $361.26, which forms a part of the item of $638.92, in a charge against the contestant in schedule Tí, under date of May, 1885. As to this credit, Charles Archer, in his testimony, says that this charge of $638.92 against the contestant is made up of two items— $277.66 and $361.26—as shown bv the personal account book at the top of pages 100 and 101. This book contains the following entry at the top of page 100: “Dif. in wood account, 1883 & 84 overdrawn” $361.26. On page 101: “Dif. in brick and wood acc’t, $277.66.” The contestant testifies that this $361.26 was for money he loaned “them” (meaning the other executors), and that they paid him back; and he says they never charged that to him until he was set aside as executor. He said this latter statement could be proved by a Mr. Markham, but that was not done. George Archer was asked to explain this item, and, as I understand his testimony, this balance of $361.26 arose out of wood and brick transactions between the contestant and the estate, upon an adjustment of which there remained a balance due from him to the estate, and which was entered as a charge against him in his individual account. I do not understand that the accounting executors ask any credit for paying that sum. It is simply a question of whether or not the charge shall stand as an item against the contestant. This testimony of George, and his explanation of the matter is not denied by the contestant, except by his testimony that I have cited. It seems to me that at this late day, upon this evidence, the contestant cannot avoid this charge against him. It seems strange, if it were a loan, that such odd figures would have appeared. Again, if it were to repay a loan, there should be something to appear in written form to sustain that claim. At that time the contestant was an acting executor, and during the years following it seems that he would have had some entry thereof made upon the books to show that this was a loan, especially where it does not appear that he had a writing to show it to be a loan. I think the charge should stand.

The contestant claims that either the item of $175 of “Schedule I, No. 8,” “September 29, 1881, schooner G. Harrington (cargo of wood),” or “$176, September 30th, Oapt. schooner General Harrington, balance on cargo wood,” should be disallowed, on the ground that the items relate to one transaction, and that but one payment was made. Charles Archer testifies that in a former proceeding the contestant testified that he made payments for two loads of wood at the same time, and to the same person; that these payments were actually made; that Oapt. Ward was the captain of the General Harrington, and that he was also financial agent for the Lawrence. Charles further testifies that these two payments were actually made to that captain; that both boats came along at the same time; and that they were settled for at the same time. It will be observed that these entries were made in the books in 1881; that the contestant was then, and for several years thereafter, an executor, and actively participating in the administration of the estate, and that no objection was ever made to the same, although settlements or examinations of the accounts were had. Under the circumstances, I am of the judgment that these credits should stand. Indeed, if he was then an executor, it seems to me that he is attacking credits which he himself might be called upon to substantiate.

I do not think that the objections should prevail as to the payments to the Brick Manufacturers’ Association. These payments seem to have been made through or by reason of some arrangement of the brick manufacturers for their benefit and the trade. I am not prepared to say that the payments were not legitimate, under the circumstances.

An objection is made to the allowance of the payment of the-item of $250 to Calvin Frost, as counsel fee, for services rendered and advice given the executors. The only entry as to-the same' appearing in the accounts filed is, “Calvin Frost, attorney, $250.” Rothing there appears as to the services of counsel for which the payment is claimed to have been made. The only testimony as to this item appears to have been given by the executor Charles D.- Archer. He identifies a receipt for the payment of this sum to Mr. Frost, and says that payment was for an opinion; that subsequently a proceeding was brought against his brother, who is this contestant, to remove him as executor, and that Mr. Frost was consulted all the way through that proceeding. This is, in substance, all of his testimony as to what the payment was for. The opinion is not before me. I do not consider the proof sufficient to call for the allowance-of this item. So far as that proceeding is to be considered, the executors were fully represented by other able and competent-counsel, who was fully paid, and the executors are credited and allowed for all such expenditures. To entitle them to incur an expense chargeable to the estate for further counsel, some-proof should have been adduced showing the circumstances-which made that, necessary for the proper administration and protection of the estate. Rothing of that kind appears. The-burden of' proof was upon the executors to establish this charge. The more fact of payment by an executor or administrator of a sum of money is not sufficient to cast the burden of impeaching its justice upon the objector. Estate of Nocken, 15 N. Y, St. Rep. 731; Estate of Harnett, id. 725. Items of an account of executors or administrators for professional services and otherwise, in the absence of proof that such services were necessary for the protection or administration of the estate, and that the sum charged is reasonable in amount, should be.disallowed. In re Casey’s Estate (Sup.), 6 N. Y. Supp. 608; In re Collyer’s Estate (Surr.), 9 N. Y. Supp. 297; St. John v. McKee, 2 Dem. Sur. 236; Willson v. Willson, id. 462; In re Rowland, 5 Dem. Sur. 216. Nor is the production of a voucher, simply showing such payment, sufficient where objection is interposed. Estate of Eocken, supra; Estate of Harnett, supra. There seems to be some conflict among the authorities touching-the question of the burden of proof where a voucher is produced for the payment, but I am of the judgment that as to the expenses of the administration of an estate the burden is upon the accounting party to show the necessity of the expenditure- and the reasonableness of the charge. In Valentine v. Valentine, 3 Dem. Sur. 597, the learned surrogate seems to hold the contrary. He cites as an authority sustaining his conclusion, In re Frazer, 92 N. Y. 239. In that case the item under consideration was a credit for the payment of a debt of the deceased. The claim, as the court there states (at page 247), “was based upon an alleged contract with the deceased, and presented and sworn to in the ordinary manner.” There is reason for the application of such a rule in that case. The statute points out the method of authenticating debts or demands-against a deceased person’s estate, and, when thus authenticated and presented, the inference is that the same is proper and just; and the executor or administrator, when supplied with such a voucher, may rely upon the same to entitle him to an allowance-thereof in his accounts, unless some objector presents proof to overcome this inference or presumption. And. as to debts or demands of the testator or intestate the personal representative is not supposed to possess any personal knowledge, and it is but just that he should, in the first instance, be entitled to rely upon the compliance with the statute as sufficient to protect him until contrary proof be submitted. As to the expenses of administration, the personal representative who incurs them is supposed to have full knowledge thereof, while the persons interested in the estate are most probably uninformed as to the same, and, if objection is interposed as to the allowance of any such expenditures, I see no hardship in requiring, proof from the accounting party of the necessity and reasonableness of the expenditure. The distinction above indicated was recognized in Journault v. Ferris, 2 Dem. Sur. 320. In Re White, 6 Dem. Sur. 375, it was held that where an executor filed a voucher for the payment made by him for services of counsel, from which it appeared that the expense incurred was necessary, just and reasonable, the burden of impeaching such payment was cast upon the contesting party. I am not prepared to say that in no case can such facts be embodied in the voucher, and form legitimate proof against a contestant as to the necessity and reasonableness of the expenditure, but it is sufficient to say that does not appear in this case. This item, upon the proof, is therefore disallowed.

The testator, as we have stated above,'made this provision in his will: “Should my son Allison desire to reside where he now does, my will is that he may do so without paying any rent, during the lifetime of my said wife.” This son, the contestant, then resided in a dwelling which constituted a part of the estate of the testator. He continued to reside there until April 1, 1882. He then removed therefrom; from what appears, voluntarily. There is no proof that he has ever been excluded from the occupancy of this dwelling, and yet he contends on this accounting that he should receive the rentals from the executors which they have collected from tenants who have since his removal occupied the same. This claim is without foundation. The executors were entitled to receive all income from the estate; and when the contestant abandoned these premises he surrendered all control over the dwelling apartments, and it devolved upon the executors to assume possession and control of the same, and to obtain an income therefrom as a part of the estate. The contestant’s interest was simply a right of occupancy as a home for himself and family. As soon as he abandoned or surrendered this right by removing therefrom, he gave up all benefit to be derived from the same,, given him under the will. The rentals received by the executors for" this dwelling therefore constituted a part of the estate, and is distributable with the other income in accordance with the directions of the will.

We come now to the consideration of the remaining matter submitted by the contestant’s counsel. About February 1, 1887, the one-half interest of T. W. Johnson in the above-mentioned barge M. A. Archer—the estate owning the other half—was purchased of Johnson for the consideration of $2,300, and the bill •of sale thereof taken in the individual name of the executor, George Archer. The contestant claims that this purchase was •one for the estate, and that the property thereby acquired, and ■earnings thereof, should be accounted for as estate property and assets. George Archer claims that the purchase was an individual transaction, and that the estate has no interest therein, and that he is not accountable therefor as an executor. From •a careful review and consideration of all the circumstances connected with the purchase of this half interest in this barge, and the relations of the parties, I have reached the conclusion that this purchase must be held to have been one in the interest ■of the estate, and which must be treated and considered as such •on this accounting. This barge was first acquired in the belief that it would be a profitable investment as a part of the estate business. The earnings of the same for the years preceding the year 1887 had demonstrated that it was such from the profits realized therefrom. The earnings showed a large return to the owners of the vessel on the capital invested. The freighting was a usual and ordinary part of the brick manufacturing business, and a remunerative part thereof. In view of these facts, all of which were known to the executors, George Archer and Charles D. Archer, I do not believe that they, or either of them, should in equity be permitted to acquire this interest in the barge, as they have attempted to do, and shut out their brother, the contestant, from participating in the purchase and sharing in the benefits of that undertaking. George claims that he made the purchase individually from Johnson. He received a bill of sale in his individual name, and gave his notes, he says, to Johnson for the purchase money, except that he paid $50 to bind the bargain. That is all the cash he claims to have paid. The evidence shows that whatever has since been paid came wholly from the earnings of the barge. Upon examination of the notes that have been submitted to me as exhibits, I find that but three were given by George to Johnson, and aggregating but $1,050. The bill of sales recites a consideration of $2,300. How was the balance secured or adjusted with Johnson ? As a part of the writings relating to this sale and purchase there was put in evidence a receipt from Johnson for all “dues and demands whatsoever either against the estate of Mr A. Archer,■ or against George, Allison, or Charles, individually or as executors, barring a note against Allison for $175.” Does ’not this indicate that there was a “jumping” of matters between the estate, these executors, and Johnson? May not the unaccounted-for earnings of the barge for the years 1885 and 1886 have entered into this transaction? Charles Archer says the earnings of the barge were settled with Johnson early in the winter, and George says that a settlement was had with Johnson when he purchased the barge, and they went by Johnson’s account. But, if this be not so, then it would seem that the balance of this $2,300 was in some way realized through the note of Charles and George to the order of Hickerson, under date of January 29, 1887, and thus Charles appears to be clearly connected with the purchase, and another circumstance is added, indicating that it was an estate matter. George says he purchased individually, yet Charles is uncertain whether he had an interest in the purchase- or not. He testified at one time that ho regarded himself as having an interest in the barge equally with George. He says he told George that the barge was going to be sold, and said “Let ‘us’ try and get it.” He says he was present at the conversation with Sherwood, who indorsed the notes to be given to Johnson, and that he told him “we” would like to get the barge. He says that he will not be sure that none of the earnings of the barge which went to pay the notes belonged to the estate. He says he saw Johnson, and went around to Sherwood; that he was present at the purchase, and took part in the discussion or negotiation, and said to Johnson, “We will take'it,” referring to the barge. He testifies “we” gave the Sherwood notes. Notes have been submitted as renewals of these Johnson notes. Some are those of George Archer individually; some of Nickerson, to the order C. D. & G. Archer, and indorsed by them; and some made by Charles D. Archer and George Archer to the order of Nickerson; one from Charles to Sherwood, and bearing date during the period from January 20, 1887, to April 4, 1889. Some are mutilated by removing George’s name. These circumstances indicate that Charles was also a party interested in the purchase, and that Nickerson & Co., who were the sales commissioners’ agents of the estate, were called upon to lend their assistance, by way of ’, accommodation, or else these notes represented the proceeds of sales of bricks, or advances. Charles states that the estate had-discounts through the Second National Bank, where George kept his account.

If Charles is a" party to be benefited by this transaction, why' not Allison? There is nothing really prejudicial to the contestant’s claim in the fact that the bill of sale was taken in George’s name. The accounts and other evidence show that with the approval of all parties other valuable properties, purchased in behalf of the estate, were taken in the name of George alone, and yet conceded to be a part of the estate, in the benefits from which all are to participate. Then why not, also, in this barge and its earnings ? George does not claim to have put but $50 in the barge. Why should he absorb this profitable branch of the estate business to the exclusion of the others, made equal under the will of his father. The first half of the barge acquired hv the estate was paid for by its earnings in two or three years. George knew this, and he ought not to be permitted to

acquire the second half to the detriment or loss of the estate, and paid for in the same manner. Charles, it seems, is interested in another barge, the Clara, furnished profitable freighting from the estate brickyards. It does not seem to me fair nor equitable that Allison should be shut out of his share of the benefits from this transaction. These executors occupy a fiduciary relation to the contestant in the administration of this estate, and they cannot equitably refuse to share not only all direct benefits, but also all incidental pecuniary advantages out of the same. If this be not so, then the trustee may, through his experience and observation in the management of trust property, learn of the incidental advantages and benefits that may accrue therefrom, and absorb and prosecute them to his individual profit. The law holding trustees to a faithful and honest administration of trust and fair and just dealing between persons associated together in fiduciary relations does not permit that. Equitable as well as legal rules are applicable. Upson v. Badeau, 3 Bradf. (Sur.) 13. A trustee cannot make any profit to himself' from a secret transaction initiated while the relation of trustee and cestui que trust exists. Green v. Green, 2 Redf. (Sur.) 408; Gardner v. Ogden, 22 N. Y. 327; Mitchell v. Reed, 61 N. Y. 123. The principle of the rule of equity which prohibits purchases by parties placed in a situation of trust or confidence, that no such person can be permitted to purchase an interest in property, and hold it for his own benefit, where he has a duty to perform in relation to such property which is inconsistent with the character of a purchaser on his own account. Van Epps v. Van Epps, 9 Paige, 237; Hawley v. Cramer, 4 Cow. 717; Willink v. Vanderveer, 1 Barb. 599. This rule is recognized in Harrington v. Bank, 101 N. Y. 259-264, 4 N. E. Rep. 346. It is there stated to be a “well-established doctrine that a trustee cannot purchase or deal in the trust property in his own behalf, or for his own benefit, directly or indirectly. This is a rule of equity, and is not to be impaired or weakened.” In Mitchell v. Reed, supra, Judge Earl, writing'the opinion, says (at page 126), speaking of the relations of partners:

“The functions, rights, and duties of partners in a great measure comprehend both those of trustees and agents, and the general rules of law applicable to such characters are applicable to them. 1ST either partner can, in the business and afíairs. of the firm, clandestinely stipulate for a private advantage to himself. He can neither sell to nor buy from the firm at a concealed profit to himself. Every advantage of the firm must inure to the benefit of the firm. These principles are elementary, and are not contested.”

My conclusion is that this purchase of the Johnson half of the barge must be decreed to be one in behalf of the estate, and the purchase price paid, and the earnings of such half accounted for, as an estate transaction. In the adjustment thereof George Archer may be reimbursed for the cash he may have paid individually, and I will allow on such adjustment the $186.50 paid by Charles and George Archer to Denton Eowler as the debt of Allison to Johnson evidenced by the $175 note. It seems to me that this note was paid in connection with the purchase of Johnson’s interest in the barge. It appears to have been a payment made without Allison’s authority, as half of the amount paid was at the time charged on the hooks to each Charles and George individually, and they took an assignment of the note and debt from Eowler upon making such payment, which shows a purchase of the note as a debt to be thereafter collected by them. Allison should allow this payment, however, in the adjustment of the barge transactions on the settlement of the decree herein in the adjustment of the equities. Ret a decree be presented accordingly for settlement and entry; costs to each party to he paid out of the estate.


source: Caselaw Access Project

author: Coffin, S.

license: Public Domain

text:
      In re Valentine’s Estate.
    (1 Misc. 491.)

      (Surrogate’s Court, Westchester County,

      Filed January, 1893.)
    1. Executor—Testamentary trustee—Jurisdiction.
    An executor, who is directed by the will to sell his testator’s real estate, invest the proceeds, pay the interest of one moiety semiannually to testator’s daughter for life, and upon her death, leaving issue, divide the principal equally amongst the children on their 'attaining 21, being a testamentary trustee, whose duties as such are separable from his duties as executor (Code Civ. Pro. sec. 2514, subd. 6), is liable to account for the proceeds of sales made by him, in the Surrogate’s Court (Code Civ. Pro. secs. 2802-11).
    2. Same—Will—Direction to sell—Jurisdiction.
    On such an accounting, the court has only power to charge the trustee with any proceeds of salé he has omitted to charge himself with, and (Code Civ. Pro. sec. 2811) decree payment and distribution. He cannot inquire into the validity of any sales of real estate made by the executor, by reason of fraud and the like.
    Petition by Harriet A. Burtis, a residuary devisee and legatee under the will of George B. Valentine, to hold the executor liable in damages for certain- alleged fraudulent sales of the testator’s real estate made by him. The will directed the executor to sell all his real estate, invest the proceeds in bond and morb- ■ gage on real estate, pay one-half of the income to his daughter, ■ the petitioner, for her life, and on her death leaving issue pay the principal to her children in equal shares on their attaining -21. Denied.’ .’
    Wm. George Oppenheim, for petitioner; W. H. Pemberton, for executor.
   Coffin, S.

In the briefs submitted by the respective counsel there is no discussion of, nor are any authorities cited on, the jurisdictional question. All that appears on the subject is contained in that submitted by the executor’s counsel, in which, it is claimed that “the surrogate cannot pass upon.-his transactions as to sale of real estate.” The result of researches made by me touching the power of the surrogate on the subject are, briefly, as follows: By section 3, ch. 252, p. 283, of the Laws of 1822, it is provided that where, by any last will, a sale of real estate is authorized to be made either for the payment of debts or legacies, it shall be lawful for the surrogate to call the executors to account for the proceeds of such sales, and the distribution ,thereof, etc. (subsequently repealed). By section 57, tit. 4, eh. 6, pp. 109, 110, of the second part of the Eevised Statutes, we find the same provision, except that it applies only to the case where, by any last will, a sale of real estate shall be ordered to be made. Section 75, ch. 460, p. 537, of the Laws of 1837, makes a similar provision in a case where the sale is made in pursuance of an authority given by any last will; and the proceeds of sale may be brought into the surrogate’s office for distribution, and shall be distributed in the same manner, and upon like notice, as if they were proceeds paid into his office in pursuance" of an order of sale of real estate for the payment of debts. The above section 57 of the Eevised Statutes was repealed by subdivision 3, sec. 1, ch. 245, of the Laws of 1880, and the above section 75 by subdivision 14 of the same section; thus apparently leaving no provision for either case. But, in the same year, chapters 14 to 21, inclusive, of the Code of Civil Procedure, were enacted; and it is presumed that subdivision 6, section 2514, and sections 2802-2811, inclusive, were intended to supply the places of the above repealed sections. By a “supplement to part 3 of the proposed Eevised Statutes,” appended to the first report of the above chapters to the Legislature by the Commissioners of the Code, will be found a section numbered 46, as follows:

“Where real property is sold as prescribed in the last section [in pursuance of an authority given by any last will and testament] the proceeds thereof may be brought, for distribution, into the Surrogate’s Court having jurisdiction. The surrogate . must proceed to distribute the same upon notice, and he has power to compel them to be brought in for that purpose. The-executor or administrator selling the real property is deemed a testamentary trustee, within the provisions of title sixth of chapter eighteenth of part third of these Revised Statutes.”

The commissioners’ note to this section is this:

“Proposed as a substitute for Laws 1837, ch. 460, sec. 75 [4 Edm. St. 500), which confers upon the surrogate the power to-distribute the proceeds. See Stagg v. Jackson, 1 N. Y. 206. We think that section 2319 [2514 of the present Code], subd. 6, pt. 3, of this revision, in connection with sections 2572-2580 [now being 2802-2811] of the present Code, sufficiently covers the subject; but we add the foregoing section for greater caution.”

The legislature did not enact this section, thus concurring in the view that the sections above referred to “sufficiently covered the subject.”

The conclusion is therefore reached that the executor, being a testamentary trustee, whose duties, as such, were separable from his duties as executor, is liable to account for the proceeds of sales made by him, in this court. By section 2743, which is made applicable to the accounting of a testamentary trustee by section 2811, the surrogate must decree, payment and distribution. Thus, the powers of the court to decree payment and distribution, in a case like this, are the same as those conferred by the repealed section of the act of 1837. All the acts referred to empower the surrogate simply to distribute the proceeds of sales received by the executor, and he has power to charge the trustee with any proceeds of sale which he has omitted to charge himself with. He cannot inquire into the validity of any sales of real estate made by him by reason of fraud, and the like. The court is here asked, among other things, to-pronounce a sale of a lot, made by the executor to his son, and by his son to the executor’s wife, void for fraud. This the-court has no power to do. Section 58 of the Revised Statutes, immediately following section 57, above referred to, declares that, any executor or administrator or other person appointed as therein directed, who shall fraudulently sell any real estate of his testator or intestate contrary to the foregoing provisions, shall forfeit double the value of the land sold, to be recovered by the person entitled to an estate of inheritance therein. This section was not repealed by the repealing act of 1880, and is still in force. See 4 Throop’s Rev. St. (1889), p. 2568, sec. 58. It was proposed by the enactment of section 47 of the said supplement to extend the provisions thereof to the case of an executor vested by the will with authority to sell—the forfeiture to be recovered by an action, etc.; but for some reason it appears-not to have received legislative sanction. It will be discovered - that in none of these enactments proposed, repealed, or in force is any power conferred upon the surrogate to inquire into and determine any question as to an alleged fraudulent sale, and he cannot do it now unless he is clothed with it by some statute. The question belongs to a higher tribunal. Surrogate’s Courts are creatures of the statute, and have a jurisdiction limited thereby. It cannot be discovered that they are clothed with authority by any express law, nor any power incidental thereto. All their powers on the accounting of a testamentary trustee are defined by sections 2743 and 2812. By the latter section, where a controversy arises respecting the right of a party to share in the money or other personal property to -be paid, distributed, or delivered over, it must be determined in the same manner as. other issues are determined by them. See In re Rogers (Surr.), 16 N. Y. Supp. 197. Here the jurisdiction of the surrogate, as to the questions he may try, ceases, and he cannot go beyond and try and determine any others. In the case of Fulton v. Whitney, 66 N. Y. 548, at page 557, the court says that all the surrogate could do was to settle the accounts of the trusts created by the will. This was after the passage of chapter 115 of the Laws of 1866, which act is substantially the same as section 2802 of the present edition of the Code, and was the first which authorized a testamentary trustee to render and settle his accounts before the surrogate. All that may be sought by the petitioner in this proceeding is the recovery of interest on her share of the proceeds of real estate sold; and she has an undoubted right, as already remarked, to show, if she can, that the testamentary trustee has not accounted for all of such proceeds, and her share of the interest thereon. There is no controversy as to her right to so share. All of the objections taken to the evidence tending to show fraud in the sale of lands are sustained. The sole question that remains for determination, therefore, is the condition of the trustee’s accounts.

The account of proceedings filed is very unsatisfactory, loose in structure, confusing and embarrassing. There are only two schedules—designed, the one to show all receipts; and the other, all disbursements, embracing legacies paid, funeral expenses, and other expenses of administration, etc. They are not added up, and no summary is furnished. Some of the dates of receipts of proceeds of sale are omitted, as are also any statement showing how and when investments were made, rate of interest, etc. There is no statement of the items of interest paid, or when, to Mrs. Burtis but the whole is given in a lump sum. Without enumerating other defects, these sufficiently show the careless manner in which the account was prepared. The petitioner is chiefly interested in ascertaining the amount of the proceeds of sales on which she is entitled to one-half the interest. According to the account—

The amount is ...................................... $72,703 25 To which is to be added proceeds of sale to Fraser, conceded to have been omitted.......................... 500 00 $73,203 25 To this is added one-half interest received............. 1,361 82 $74,565 07 From which the trustee claims should be deducted, including interest paid to Mrs. Burtis, and excluding charge for service of attorney herein........................ 19,000.02 Balance ...................................... $55,565 05

On-which the petitioner, it is conceded, is entitled to one-half the interest, less expenses of this accounting and commissions. As the proceeds of the sale of the Halfway House were intended to pay the legacy of $500 and interest to the wife of the trustee, and as she was not entitled to interest, which amounted to $90, and with the payment of which he credits himself, there cars be no ground of complaint, as he charges himself with $600; being $10 more than he credits himself with. The item of credit of $75 for interest on legacy to George B. Valentine must be disallowed, as the testator made it payable without, interest. The trustee credits himself with some items in contempt proceedings in the Supreme or County Court. These proceedings appear to have been against him for some neglect of duty. Tírese items, amounting, as nearly as can be ascertained, to $36.50, are disallowed. Adding these items to the above balance, makes it $55,676.55. It does not seem to be controverted that the petitioner has received $1,361.82 for interest moneys on her share. There is no evidence furnished, or data given, whereby the court can adjudge as to the correctness of that amount; but it is assumed to be all that her fund earned down to October 20, 1891, with the possible exception of the interest on $111.50—the sum of the items above disallowed. If the trustee has failed to produce proper vouchers for any of the credits claimed by him, he is still at liberty so to do. If he fail to do so, or furnish the evidence of payment thereof, as provided by section 2734 of the Code, they will be disallowed, and the fund in his hands increased accordingly. On the settlement of the decree, counsel can be heard as to any matter which may have been overlooked, and as to any other matter to which attention may be called.


author: Davie, S.

text:
      In re Carver's Will.
    (3 Misc. 567.)

      (Surrogate’s Court, Cattaraugus County,

      Filed May 10, 1893.)
    1. Wills—Presumptions as to alterations.
    Where alterations appear on the face of a testamentary disposition of property, such alterations are presumed to have been made after execution, rendering it necessary for those seeking to establish a will containing such apparent defects to overcome such presumption by proof, direct or inferential. This is an exception to the general rule as to other instruments, which provides that such alterations, in the-absence of proof to the contrary, are presumed to have been made before the execution of the writing in which they appear.
    2. Same—Effect of alterations.
    Although as a general rule a material alteration in written documents, made after execution, for fraudulent purposes, vitiates the entire instrument, the effect of an unauthorized and unauthenticated alteration in a will, made after execution, is to render the change-inoperative, leaving- the will to stand in form and effect as before-such alteration was attempted.
    v
    3. Same—Alterations—When made before execution.
    A testator bequeathed to his wife $400 annually out of his personal estate, also all his household furniture, goods, books, pictures, organ, clothing, etc., to be accepted in lieu of dower. It was' claimed that the words “to he accepted in lieu of dower” were fraudulently inserted after execution. Held, that as the words “clothing, etc., to be accepted in lieu of dower” were written upon and constituted one entire line in regular order, and were not crowded, and the only person to be prejudiced by such words, viz., the widow, urged probate of the will as it stood, and the family physician, who had witnessed the will, and carefully examined it at the time of execution, testified he observed no alteration therein, the words in question were not inserted after execution, although the letters in such words were somewhat heavier and of a darker shade than most of the other parts of the will, but not of particular portions thereof.

      4. Wills—Testamentary capacity.
    When both witnesses to a will, one the family physician of many years standing, and the other an old neighbor and intimate acquaintance of decedent, who nursed him in his last illness, testify that decedent Was of sound mind at the time he made his will, and the circumstances attending the execution of the will confirm such conclusions, held, that testator at the time of making his will was fully competent to do so, although of advanced age, and in his last illness, and some of the contestant heirs-at-law and next of kin took very little, and others nothing, under the will.

      5. Same—Undue influence.
    Proponent, a lawyer, who, although a relative of decedent was not an heir or next of kin, and who had transacted some legal business for decedent, drew his will and was the principal beneficiary thereunder. B eld, that the burden thereby thrown upon proponent of showing that the ydll correctly represented decedent’s wishes was met by the fact that for more than a year previously the testator had the general scheme of the will, as drawn, in mind; that the drawing of the will originated with testator, and not with proponent,, who merely, testator being dangerously ill, acted as scrivener when requested to do so by testator; that testator had previously consulted with his wife, and that testator was surrounded by friends during the entire time of the visit of proponent, so that latter had not the opportunity to unduly influence testator.
    Probate of will of Solander Carver, deceased. Granted.
    C. Z. Lincoln, for proponent and widow; T. H. Dowd and Alfred Spring, for contestants; J. J. Inman, special guardian, appeared in person.
   Davie, S.

This is a proceeding to secure probate of the instrument propounded as the last will and testament of the deceased, such probate being opposed upon the grounds of alleged fraudulent alteration, undue influence, and lack of testamentary capacity.

Solander Carver died at the town of Great Valley, in the County of Cattaraugus, on the 1.4th day of February, 1893, at the age of 69 years, leaving him surviving his widow, Rebecca Carver, one sister, several nephews and nieces, but no children or lineal descendants, and possessed of real estate of the value of about $7,000, and personal property to the amount of $14,000. The instrument presented for probate herein bears date on the 9th day of February, 1893, and by its terms bequeaths to the widow all of testator’s household fumriture and an annuity of $400 during life. It gives to each of the sons and daughters of a deceased sister of testator small legacies in money; bequeathes to Viola A. Bailey, another niece, an interest in a certain real estate mortgage known as the “Riles mortgage and devises the real estate to the proponent, and gives to him the residuum of the estate after payment of such legacies and the death of the annuitant. The proponent and the legatee Bailey are children of the only living sister of deceased; the contestants William Scoby and Jennie Rorton are children of a deceased sister of the testator; and the minors, who appear herein as contestants by their special guardian, are grandchildren of said deceased sister.

A methodical analysis of the objections urged against probate herein, and of the facts and circumstances upon which the same are predicated, leads us first to an examination of the claim of fraudulent alteration. Questions of this character have been before the courts so frequently that there need be but little difficulty in determining the general legal principles applicable thereto, and in passing it will be observed that moré marked distinctions exist between alterations, erasures and interlineations appealing from inspection of wills than any other class of legal documents. As a general rule such alterations, in the absence of proof to the contrary, are presumed to have been made before the execution of the writing in which they appear. Such presumption seems to have had its origin in the fact that material alterations modifying or defeating vested rights under written documents are usually the outgroAvth of a criminal intent, the existence of Avliich the lavv does not Avillingly presume, always preferring the presumption of innocence to that of guilt; but an exception to such rule exists in ease of wills, which from their very nature cannot become operative or vest any rights, and which are absolutely subject to the volition of the testator, to the time of his demise, and Avhere the necessity for the presumption above referred to does not exist. The generally recognized rule is that, where alterations appear upon the face of a testamentary disposition of property, such alterations are presumed to have been made after execution, rendering it necessary for those seeking to establish a will containing such apparent defects to overcome such presumption by proof, direct or inferential. Wetmore v. Carryl, 5 Redf. Sur. 544; Dyer v. Erving, 2 Dem. Sur. 160. The Court of Appeals, in a somewhat recent case bearing upon this subject, says that, “where an interlineation, fair on the face of the instrument, is entirely unexplained, we do not understand that there is any presumption that it was fraudulently made after execution” (Crossman v. Crossman, 95 N. Y. 145-152) ; but in that case the application of the principle there enunciated was limited to wills where the interlineation was fair upon its face; for the court says that, if there are any suspicious or doubtful circumstances growing out of the mode of alteration, the ink in which it was made, the fact that it was in favor of the party holding the instrument, and that it is not noted at the bottom, then these and all the other circumstances pertaining thereto become questions of fact for the consideration of the trial court in determining whether such alteration was made before or after execution.

The second point of variance between wills and other instruments containing alterations is the effect thereof upon the validity of the instrument containing them. It is the general rule that a material alteration in written documents, made after execution, for fraudulent purposes, vitiates the entire instrument. Such, however, is not ordinarily the ease with wills. The effect of an unauthorized and unauthenticated erasure or interlineation in a will, made after execution, is to render the change thereby sought to be made inoperative, leaving the will to stand in form and effect as before such alteration was attempted. The reason for such a rule in case of wills is apparent. The statute has surrounded the execution of testamentary instruments with certain reasonable forms and ceremonies as a shield and protection against fraud and imposition, and the purpose of such precautionary measures might be entirely defeated if held applicable only to the original execution, leaving all subsequent alterations and modifications, however important, to be made without such protection.

The first item of the will in this case is as follows:

“First. After all my lawful debts are paid and discharged, I give and bequeath unto my beloved wife, Rebecca Carver, out of the avails of my personal estate, the sum of four hundred dollars annually, to be paid to her on demand by executor during her life. I also bequeath to my said wife all of my household furniture, goods, books, pictures, organ, clothing, etc., to be accepted in lieu of dower.”

It is asserted by the contestants that the words “to be accepted in lieu of dower” were inserted after the execution of the will. This allegation presents a question of considerable importance, and one worthy of careful consideration, for the legal effect of the words claimed to have been added is to very materially diminish the value of the widow’s interest in the estate of the deceased. If it appears with reasonable certainty from an inspection of the instrument that such words were not written at the same time as the other portions of the will, then the presumption is that they were inserted after execution, because in this case the alteration does operate in favor of the party holding the instrument, and it becomes his "duty to show sufficient facts to overcome such presumption. This will is written upon the usual printed blank with ruled lines, and all thereof except the signatures of the testator and attesting witnesses was in the handwriting of the proponent, , The words, “clothing, etc., to be accepted in lieu of dower,” are -written upon' and constitute one entire line in regular order,—no crowding of words'or letters, and no alterations', erasures or interlineations, or other peculiarities observable from inspection, except that the letters in the-words “to be accepted in lieu of dower” are somewhat heavier, and of a slightly darker shade, than the letters in most' of the other portions of said instrument, but no darker and but little heavier than the word “fifth,” at the beginning of the fifth item of said will, and neither darker nor heavier than the letter “S” in the name of the deceased at the beginning of the ■will. It will be entirely apparent to any one who will carefully compare the words claimed to have been inserted with various other portions of the will that such words were written with the same ink, and that their apparent darker hue is occasioned simply by a freer flow from the pen, and consequently a greater accumulation of ink at that point. It is the experience of every scrivener that irregularities in the general appearance of written documents, a diversity in the form and shading of the letters, is not only possible, but of very frequent occurrence in writings by the same person, at the same time, and with the same pen and ink, and that such is especially liable to be the case where the scrivener writes from dictation, with his attention divided between the mental operation of comprehending and formulating the instructions of the person dictating and the physical operation of placing the same upon the paper. There are other significant suggestions in this connection. The attesting witness Colgrove had been for many years the family physician of the deceased; was present at the time of the execution of the will; not only signed it as a witness, but saw the testator sign it; and on that occasion examined the will Avith considerable care, so much so that he observed and recollected the blot over the S in the name of the deceased at the beginning of the will; and upon the trial he is shorvn the -will, and asked to examine it, which he does, and is then questioned Avith considerable particularity regarding its appearance, and he testifies distinctly that he observes no changes or alterations therein. Then, again, the widorv—who is the only one prejudiced to any extent by the words claimed to have been inserted —was present with the deceased Avhile the will was being prepared, and knew the Avishes and desires of deceased in regard to the disposition of his property, and who is in a situation to know, and does beyond any question or peradventure know, Avhether this instrument is in the same situation now as when executed by deceased—appears in this case not as a contestant, but, Avith the proponent, urging probate of said Avill in its present form. She is a woman of good judgment and fair ability, and the suggestion is farcical that she would knowingly and quietly submit to the consummation of a fraudulent scheme perverting the testamentary wishes of her deceased husband,, and depriving her of valuable property rights. The only reasonable inference to be drawn from the relations of the widow to this contest is that she distinctly knows and understands what the wishes of the deceased were in regard to the contents of his will, and that she respects such wish, and governs her conduct so as to effectuate the same. In view of all these facts, I have found as a fact in this case that the instrument presented for probate is in the same condition now as when signed and executed by the testator on the 9th of February, 1893.

The second proposition in this case is that of alleged lack of testamentary capacity. The law does not, of course, attempt to-define any particular grade of mental ability or acumen necessary to qualify one to make a will. Wills are made by all classes-of people, in every station of life, and under almost every conceivable set of circumstances; by persons of weak intellect, and by those of magnificent ability; sometimes in the midst of life- and business prosperity, at other times in extremis, or while overwhelmed with adversity. Hence it is impossible to formulate any precise rules applicable to any particular case. The-most that the courts have attempted to do was to dispose of each individual case as it arises, upon its own peculiar facts and circumstances, and in so doing establish certain very general propositions bearing upon this subject. It has been asserted that in law the only standard as to mental capacity in all who are not idiots or lunatics is found in the fact whether the testator was compos mentis or non compos mentis, as these terms are used in their fixed legal meaning; and if compos mentis, he can make any will, however complicated; and, if non composmentis, he can make no will, however simple. Delafield v. Parish, 25 N. Y. 9. Again, it has been asserted as a general proposition that one capable of comprehending the condition of his property, and his relations to those who are the natural objects of his bounty, and able to collect- and retain in his mind without prompting the elements of his business, possesses testamentary capacity. Van Guysling v. Van Kuren, 35 N. Y. 70. And, further, that no presumption of lack of testamentary capacity springs from the fact that the terms of the will are harsh and unjust, and that the natural objects of testator’s bounty get less, under the will than in case of his death intestate. In re Tracy, 11 N. Y. St. Rep. 103. And that there is no presumption against the validity of a will because made by a person of advanced age; nor can incapacity to make a will be inferred from an enfeebled condition of body or mind. Horn v. Pullman, 72 N. Y. 269. In the light of these and various kindred authorities, an examination of the evidence in this .case discloses but little to sustain, but very much to refute, the claim of want of capacity. The attesting witness Colgrove, who evidently testifies in this case without prejudice or bias, was a physician of many years’ practice. He had been the family physician of the deceased for many years, covering the time of the sickness and death of testator’s only child. He visited deceased daily during his last illness, closely watched the progress of his disease, conversed with him frequently, and from his long acquaintance with and personal attendance upon deceased was peculiarly well qualified to speak as to his mental condition at the time of the execution of this Avill. He declares under oath, positively and distinctly, that tire testator was then possessed of sound mind and understanding. Eor does he give a mere formal, inconsiderate expression of opinion upon this subject,.but he is ‘’subjected to more than a usually lengthy and rigid cross-examination without in the least discrediting his evidence, but, on the contrary, disclosing many facts and circumstances showing tire correctness of his opinion. The other attesting witness, Davis, had been for a long time a neighbor and intimate acquaintance of the deceased, had had business transactions with him, nursed and cared for him in his last sickness, and had ample opportunity to observe any loss of memory or failing of mental capacity on his part; and he also distinctly testifies that at the time of the execution of this Avill deceased was of sound and disposing mind and memory. The correctness of these con- . elusions find most satisfactory confirmation by a slight refer- ■ ence to the circumstances attending the execution of this will as disclosed by the evidence. Deceased had been for many years prior to his death somewhat actively engaged in business. He was a hard-working, industrious man, strictly temperate, possessed of sound judgment and practical common sense, not inclined to be communicative in relation to his business affairs, but, on the contrary, of a secretive disposition, and up to the .time of his last illness had been a man of unusually good health, aside from occasional slight attacks of rheumatism and acute inflammation of the bladder, and at no time had he been afflicted with any physical or mental disorder tending in the least to impairment of his mental faculties. His final sickness began on the 7th day of February, 1893, and the instrument now propounded for probate was executed within two days thereafter, • and at no time prior to the execution of the same did his con-duct or conversation indicate any incoherence, loss of memory, -or weakness of understanding. Although not talking freely, what he did say was in all respects rational, consistent and in-telligible. Directly before the preparation of the will he conversed with the physician regarding his condition; spoke of his plans and intentions regarding the making of a will, and explained why he had delayed it to that time; asked the physician if he could then draw a will for him; desired an opportunity of discussing his business affairs with his wife, and did so, and, after his interview with her, again talked with the physician," and informed him that he was going to make a will, and that his wife desired to be pensioned, as he expressed it, and requested the physician to stay and witness his will when drawn; selected his nurse, Mr. Davis, as the other attesting witness; expressed his approval of the form of the will after it was prepared by saying that it was as he wanted it, and signed it plainly and distinctly, and thereupon declared it to be his last will and testament, and again requested the witnesses to sign it. In view of all these facts and circumstances, concerning which there is no dispute in the testimony, the conclusion seems irresistible that the testator at the time of executing this will was in all respects fully competent so to do.

The remaining question is that of the charge of undue influence exercised upon deceased by the proponent at the time of the preparation of the will. Having determined that the testator at the time of the execution of this will was of sound mind, fully competent to transact business, capable of comprehending the extent of his property and his relations to those around him, it follows as a corollary thereto and a natural deduction therefrom that the making of the will in the form it now presents was the free, untrammeled act of the testator himself. The cases have quite clearly defined the grade and character of the influence which must be shown to have been exercised upon the testator to justify denying probate to a will. In order to avoid a will upon any such ground it must appear that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which by importunity that could not be resisted constrained the testator" to do that which was against his free will and desire, but which he was unable to refuse, or too weak to resist. It must not be the promptings of affection, the desire to gratify the wishes of another, the ties of attachment arising from consanguinity, or the memory of kind acts or friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear. Society v. Loveridge, 70 N. Y. 387-394; Gardner v. Gardner, 34 N. Y. 155; Marx v. McGlynn, 88 N. Y. 357; Seguine v. Seguine, 4 Abb. Dec. 191; Dean v. Negley, 41 Pa. St. 312. The exercise of such undue influence must be proved, and, while it is not necessary, and ordinarily not possible, to establish it by ■direct proof, the circumstances relied upon as inferentially showing the same must be of such a character as to naturally lead to the conclusion that such influence had in fact been exerted. Brick v. Brick, 66 N. Y. 144. It is not sufficient .to show that a party benefited by a will had the motive and the opportunity to exert such influence. There must be evidence that he did exert it. Cudney v. Cudney, 68 N. Y. 149; In re Williams (Sup.), 19 N. Y. Supp. 778. In this case the will was drawn by the proponent, who is named as a legatee therein and executor thereof, and this circumstance is urged with great earnestness by the contestants as proof of undue influence on the part of the proponent. It is undoubtedly true that the law looks with a jealous eye upon the acts of one who, standing in a relation of trust or confidence, is instrumental to any extent in-procuring a testamentary provision in his own favor; and, while such circumstance does not in and of itself invalidate the bequest, it does call for satisfactory explanation, and imposes upon him claiming under such provision the burden of showing that it was in all respects, fair and honest. The only relation which proponent sustained to the testator of a confidential character at the time of preparing the will was simply that of scrivener. The proponent was an attorney, and at some former time had transacted some little legal business for the testator by way of drawing bonds, mortgages and other papers; but it does not appear that at the time the will was drawn the relation of attorney and client existed between testator and proponent to any extent. If the emergency of the case would have permitted doing so, it would undoubtedly have displayed much better judgment and sense of propriety on part of proponent to have procured the assistance of another attorney in preparing this will; but the fact that he failed to do so does not invalidate the legacy to him. It has been distinctly held that the fact that the draughtsman who drew the "will takes a legacy under it is only a circumstance to be considered in connection with other circumstances indicative of fraud or undue influence. Post v. Mason, 91 N. Y. 539 ; Coffin v. Coffin, 23 N. Y. 9. It has also been held that where a will was drawn by the principal beneficiary under it, and the testator was able to read writing, and of sufficient capacity to transact business, and yet did not read it. it may be inferred from the circumstances that the testator was acquainted with its contents. Nexsen v. Nexsen, 3 Abb. Dec. 360; In re Smith, 95 N. Y. 516. In the case last cited, it was held that the fact that the attorney of the deceased was the principal beneficiary under the will does not alone create a presumption that the testamentary gift was procured by fraud or undue influence, but that in a case where the testator was of advanced years, infirm mentally and physically, and made his attorney his principal beneficiary, contrary to previously expressed testamentary intentions, and where such attorney was the draughtsman of the will, and took an active part in procuring its execution, and that the testator acted without independent advice, the burden is imposed upon the attorney of showing that the will was the free and untrammeled expression" of the testator’s intentions.

So 1 think it may be said that the general principle adduced from these various authorities applicable to this case is that under the peculiar circumstances attending the making of this will, the burden was imposed upon the proponent of showing that the will, in its present form, correclv represents the wishes ■of the deceased; and it is urged on part-of the contestants that the evidence bearing upon that question falls short of meeting this requirement; and that it fails to show that the testator was fully apprised of the contents of the will before executing it. This charge necessitates an examination somewhat carefully of the facts attending such, execution. Deceased was taken sick February 9, 1893. His physician was called, and visited him at the hour of 4 P. M. of that day, and found him in bed, troubled with a recurrence of his former ailment—inflammation -of the bladder—and with an inflammation of the lunes. The physician visited deceased on the following day (Wednesday), and discovered that- the inflammation of the lungs was extending, and had assumed the form of pneumonia. He visited him again on Thursday—the day the will was drawn—about noon, ■examined him carefully, and concluded that his recovery was a matter of serious doubt. He then talked with the deceased about his condition, and informed him that he was very sick, but expressed to him the hope that he would recover; and them suggested to him that, if his business affairs were not satisface torily arranged, he should then attend to them. Deceased re<plied that he had been thinking for four years of making a will, but that he had supposed that if a man made his will he would die soon after, and that he had put it off; that he intended in. the fall to buy a house and lot in the village of Salamanca, and move there, and then make his will, but that he wanted his mil made then, and that there was no one present who could draw it unless the physician would do so, to which the physician replied that he could draw his will, but that Mr. Wheaton was in the adjoining room-, and he could do it much better. Deceased said he had' not thought of that, and asked the physician to stay and witness his will when drawn, and to tell his wife to come into the room, saying he wanted to talk over his business matters with her. This request was communicated to the wife, and she thereupon went into the room with the testator, and closed the door, and remained alone with him for about one hour, and at the end of that time came out of the room, and informed the physician that testator again desired to see him. The physician, accordingly went into the room where testator was, and again talked with him about his condition, and testator said to him l “I want you to have Stanley (Mr. Wheaton) make my will. Rebecca says she wants to be 'pensioned,’ ” and was thereupon evidently about to inform the physician what disposition he designed to make of his estate, when the physician told him he did not want to know anything about how he wanted his will drawn, and thereupon testator requested that Mr. Wheaton and his wife, Rebecca, come into the room, which they did, and remained with him for about one hour and a half, during which time the will was drawn. At the end of that time Wheaton opened the door and called the physician and the other attesting-witness into the room, and said to them in the immediate presence and hearing of testator that he had drawn his will, and that he had read it over to him, and then asked the testator if there was anything he wished to change, to which testator replied that it was as he wanted it. Thereupon testator took the pen, signed the will, acknowledged it to be his last will and testament, and requested the witnesses to sign it, which they did in his presence, and in the presence of each other. When the witnesses were called into the room the deceased was reclining-in bed at an angle of about 45 degrees, with the will in front of him upon a book, and with full and ample opportunity of examining its contents. The proponent resided at the town of Little Valley, about 15 miles distant from the residence of the testator, and after the physician’s visit on Wednesday he communicated .with Wheaton, who thereupon went to the residence of deceased, arriving at the hour of midnight, and stayed there -until after the execution of the will, and substantially all the time to the-death of the testator. At the time of Wheaton’s arrival one Mr. Eider was in charge of the testator, nursing and taking care of him, and he testifies that when Wheaton came he spoke to the testator, asking him how he felt, but that nothing whatever was said between them upon the subject of a will or other business affairs, and that he remained with the testator continuously to the time of the arrival of Mr. Davis, the other nurse, in the morning. Davis testifies that he was constantly in charge of testator from the time he arrived there until the physician came, about noon; that he was not out of the room, except momentarily, for the purpose of doing errands or transacting other matters of business, and that at no time in his presence did Wheaton, and testator have any conversation in reference to the making-of a will. Moreover, it distinctly appears from the evidence-that the testator had not only been contemplating the making of a will for a long time, but that he had determined upon a general scheme or plan for the distribution of his property; that such plan involved the giving to his wife of an annuity during her-life, and the making of Wheaton his principal beneficiary. In the summer or fall of 1892, the deceased, in speaking of testamentary wishes, said to his wife, in the presence of Miss Finney, a domestic, that he was going to give his wife $400 a year- and a house and lot in town if he had one. In November, 1891, in speaking about bis property matters to the witness Bailey, testator said that he was going to make a will, and was going to will the farm to Wheaton, and that Rebecca wanted $400 a year-for her share; that she did not want to be bothered with the farm; and that he was going to give the Riles mortgage to Viola Bailey. Again, in Rovember, 1892, he said to the same witness, Bailey, that he must make a will; that he was going to give the farm to Stanley, and that Rebecca had got to be paid •$400 pension; and that the interest in the Riles mortgage he was going to give to Viola Bailey; that the Scobys had done •something he did not like, and he would not give them any property. This I believe to be a full and fair statement of the general facts attending and leading up to the execution of the will in question, and the conclusions directly established thereby, or reasonably and naturally inferable therefrom, are these: First, that for more than a year prior to his death testator had ■entertained a general scheme for the disposition of his property, the leading features of which were to “pension” his wife, and make the proponent his principal beneficiary after so providing for her; second, that the will as presented is in substantial compliance with such scheme or design; third, that the proposition for making a will at the time this will was -drawn did not originate with the proponent, but with •the testator himself, after learning from his physician the serious nature of his illness; fourth, that the proponent did not volunteer his services as scrivener, but acted in that capacity only after having been requested by the testator ■so to do; fifth, that such’ will was not prepared until the testator ■and his wife had consulted together in relation thereto; sixth, that the widow was present during the time such will was being prepared, and knew the desires and wishes of deceased, and has ■full knowledge at the present time as to whether the will is now in the same form as when executed, and whether it correctly represents the testamentary desires of deceased; seventh, that ■deceased was surrounded by friends and attendants during the «entire time that proponent was there, and that the opportunity did not exist for the exercise of any undue influence by proponent. After having carefully examined the elaborate briefs presented by the contestants in this case, and the various authorities to which my attention has been called, I am of he opinion that the conclusions above formulated are irresistible, and, such being the case, it becomes my duty to admit the will to probate. A decree will be accordingly entered.

(Note as to alterations in wills:)

General Observation.—When Alterations Deemed to Be Made (a) Before Execution, (b) After Execution.—■ Burden of Proof.—Voting of Interlineations.— Where Probate of Whole Instrument Rejected.

General Observation.

The leading case upon this subject- is Crossman v. Crossman, 95 N. Y. 145. In that case testator had executed his will in duplicate; one only of the instruments was presented for probate. In the other, there ivas an interlineation of the name of one of the executors which apparently had been left out in copying, and the interlineation was noted at the bottom of the instrument before the attestation clause, and it was held that there was no presumption that the interlineation was fraudulently made after execution, and further, that where an interlineation is fair upon its face, and it is entirely unexplained, there being no circumstances whatever to cast suspicion upon it, it would not- he proper for any court to hold that the alteration was made after execution; but if there were any suspicious -or doubtful circumstances growing out of the mode of the alteration, the ink in which it was made, the fact that it was in favor of tlie party holding the instrument, and that it is not noted at the bottom, then these and all the other circumstances must be submitted as questions of fact to be determined by the court, -in deciding whether the alterations were made before execution or not.

When Alterations Deemed To Be Made Before Execution.

A testator had two sons and three daughters, and by his will he devised one-fifth of his estate to each of them successively, but in the clause making such provision for one of his daughters her name was interlined. The entire will, including the 'interlineation, was in testator’s handwriting, the whole appearing to have been written at the same time, with the same pen and ink. There was no note of the interlineation in the instrument. Held, that as the interlineation was fair upon the face of the will, and rendered effective a part of bis will containing only provision for one of his children, it was made before execution. (Matter of Voorhees, 13 St. Rep. 183, 6 Dem. 162.)

When a will is found carefully preserved among the testatrix’s papers, and it appeared that her signature had been erased by drawing diagonal lines over the name and then nearly erasing such lines and the signature, and that the will now bore testatrix’s genuine signature, carefully rewritten over the original signature, which was written with a different ink from that used in the body of the will or by the witnesses, held, that as the evidence showed that the testatrix might have used different ink from that used by the witnesses, and as the burden of proof was upon contestants to show that the erasure and subsequent■ signature were made subsequent to the execution of the will, the court could not (following the rule that when an interlineation or erasure is fair upon its face and entirely unexplained, there is. no presumption in the absence of any suspicious circumstances that it was fraudulently made after the execution of the instrument) presume as matter of law that the erasure was made at some time subsequent to the execution of the will. (Matter of Wood, 32 St. Rep. 286, 2 Connoly, 144, 11 N. Y. Supp. 157.)

When the bottom of the first page of a will was cut off, but. not so as to destroy its continuity, and the paper was folded in such a manner that neither of the subscribing witnesses could swear that- the paper presented for probate had been mutilated or changed in any way since its execution, and it was found among decedent’s private papers in its present condition, and it- does not appear to have been distorbed until so found, them is no presumption that it was mutilated after execution. (Matter of Homes, 32 St. Rep. 902.)

When the testatrix was her own scrivener, and the custodian of the will, interlineations shown to be in her handwriting and erasures will be presumed to have been made by her prior ti> execution. (Matter of Potter, 33 St. Rep. 936, 12 N. Y. Supp. 105.),

The scheme of a will was to divide testator’s estate into 100 parts; the persons who were to receive these shares appeared in the running writing of the will, but the pro raía of shares to be allotted to each of the beneficiaries was originally left blank. There appeared in the -will, when offered for probate, pencil waiting in some of the blanks superimposed over other pencil writings which had been either wdiollv or partially erased, and in other instances ink writings, different from the body of the •instrument in the material employed, appeared over* pencil writings wholly or partially obliterated. The contestants claimed that the burden rested on proponent to explain these erasures and obliterations, and satisfy the court by competent evidence that the will as it then appeared was in that condition when executed, otherwise the will should be recorded in blank. Held, that the rule relied on by contestants in regard to the presumption as to wdien interlineations or alterations of a suspicious nature appearing in a will were made, had no application to the case—that there is no statutory or legal requirement that a will shall be drawn on a particular kind of paper, nor with the same ink, nor exclusively in ink, nor all at one time; and there is no presumption that blank spaces left for the insertion of names or amounts in a wall were filled in after execution; and held further, that the will should be admitted to probate and' recorded, with the spaces filled in in lead pencil in blank, and as to the blank spaces which appeared filled in in ink, that same should be recorded as they appeared in the will, the difference in character of such writing, and of that in the body of the will, affording no ground for saying that such writing was inserted in the wall after execution. (Matter of Tighe, 24 Misc. 459, 53 N. Y. Supp. [87 St Rep.] 718.)

A handwriting expert, testified that the first and second pages of a will were written on a half sheet of paper, larger and of a different milling from the rest of the will, and were in a running hand, which spread much more than the waiting of the following pages, which was an engrossing backhand, changing to a running hand toward the last, and that the words “two thousand” in a clause giving an annuity of that amount in dollars to testatrix’s granddaughter, were written over an erasure made with chemicals. Held, that these peculiarities rendered it incumbent upon proponents to satisfactorily explain same, and held further, that as the attorney who drew the will testified that he used a prior will as a draft in the preparation of same, and the prior will with pencilled alterations therein, corresponded with the later will, the first and second pages of which were exactly similar to the former will, and as the attorney had no motive for altering the will after execution, it was. exceedingly improbable that the will had been tampered with since its execution, and the peculiarities existing therein were sufficiently explained. (Matter of Dwyer, 29 Misc. 382.)

When Alterations Deemed To Be Made After Execution.

After a will had been duly executed, certain alterations were-attempted to be made by testator by writing in the will, erasing-' and interlining. Held, that the will as originally executed, should be upheld. (Quinn v. Quinn, 1 T. & C. 437—citing Jackson v. Holloway, 7 Johns. 394, and McPherson v. Clark, 3 Brad. 92.)

To the same effect is matter of Prescott, 4 Redf. 178.

In Dyer v. Erving, 2 Dem. 160, it was held, following Wetmore v. Carryl, 5 Redf. 544, that in the absence of evidence to the contrary unattested alterations upon the face of a will must be presumed to have been made after its execution.

Material alterations in a will are not presumed to have been made before the execution thereof, where no explanation of the erasures is given, and where suspicion arises upon the face of the-paper, and from surrounding circumstances, and it is doubtful if the erasures were made before the execution of the paper.. (Herrick v. Malin, 22 Wend. 388; Smith v. McGowan, 3 Barb. 404; Acker v. Ledyard, 8 id. 514.)

After executing her will, testatrix stated to the scrivener she-wished to make further bequests. Instead of preparing and having executed a codicil, the scrivener wrote testatrix’s directions on a slip of paper, which he subsequently pasted upon the will, the latter having been cut into, so as to permit the clause to be inserted in its proper place as the seventh subdivision of the will. There was no republication of the will after that clause had been written. Held, that the will should be admitted to probate, excluding the inserted clause. (Stevens v. Stevens, 6 Dem. 262.)

An interlineation, erasure, or other alteration made in a will,, either by the testator or a stranger, after due execution of the instrument, without a new attestation1, does not avoid the instrument, but the court may disregard the same and probate the will according to its original language, when that can he ascertained. (Matter of Wilcox, 46 St. Rep. 877, 30 N. Y. Supp. 131—citing Doane v. Hadlock, 42 Maine, 72; Smith v. Fenner, 1 Gale [U. S. C. C.], 170; Will of Tonnele, 5 N. Y. L. O. 254; Pringle v. McPherson, 2 Brevard [S. C.], 279; Stover v. Kendall, 1 Coldw. [Tenn.] 557; Wheeler v. Bent, 7 Pick. 61; Penniman Will case, 20 Minn. 245; Wolf v. Bollinger, 62 Ill. 368; Locks v. James, 11 M. & W. 901; Short v. Smyth, 4 East, 418; In re Harny, 30 L. J. Prob. 142; Cooper v. Bockett, 4 Moore, P. C. 419; McPherson v. Clark, 3 Brad. 92; Matter of Prescott, 4 Redf. 178; Wetmore v. Carryl, 5 id. 544-553; Dyer v. Irving, 2 Dem. 160-183; Will of Wood, 32 St. Rep. 286; Quinn v. Quinn, 1 T. & C. 437; Lovell v. Quitman, 25 Hun, 537.)

Burden oe Proof.

Material alterations or erasures in a will are not presumed to-have been made before the execution thereof where no explanation of the erasures is given, and where suspicion arises upon the-face of the paper and other surrounding circumstances, and it is doubtful if the erasures were made before the execution of the paper. In such case the propounder of the instrument must make the doubt clear. (Matter of Barber, 72 St Rep. 771.) •

Doting oe Interlineations, etc.

Interlineations in a will need not be noted at the foot of thestrument, provided that the place where it should appear is made before the execution and publication of the will. (Matter of Whitney, 70 St. Rep. 259, 90 Hun, 138—citing In re Voorhees, 6 Dem. Sur. 162; Crossman v. Crossman, 95 N. Y. 145, 153; Tonnele v. Hall, 4 N. Y. 140.)

An interlineation may be made in a will,' as in any other instrument, provided that the place where it should appear is designated by the instrument with sufficient certainty. A will was written on a blank form. The first and second clauses filled up the blank space in the will, and at the end of such space were the words, “See annexed sheet.” The third and fourth clauses were written on a separate sheet, fastened by metal staples to the face of the will at a point near the end of the second clause. Held, that the interlineation or attached paper, by the terms of the instrument itself, was to come in and be made a part of the will before the formal ending thereof. (Matter of Whitney, 70 St. Rep. 259.)

When Probate op Whole Instrument Rejected.

In doubtful eases, where material provisions in a will have been erased or altered, and the court cannot determine from the proof whether the alterations were made before or after execution, probate must be refused, and the whole instrument rejected. (Matter of Barber, 12 St. Rep. 771.)