author: Abbott, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Matthew H. Ellis, as Administrator, etc., of Georgiana Hurd, Deceased.

      {Surrogate’s Court, Kings County,

      Filed December, 1893.)
    Surrogate’s Court—Referee’s fees.
    The surrogate has power to direct and enforce the payment of referee’s fees in his court out of the funds of the estate.
   Abbott, S.

The executor filed his accounts in this proceeding May 5, 1892. Objections thereto were filed, and á reference was ordered June 27, 1892. There were several hearings before the referee, and about 200 pages of testimony taken. The reference was closed, and the referee prepared his report, which was unsatisfactory to all parties, and no one would take it up. On January 11, 1893, the referee filed his report in this court within sixty days from the final submission of the case: Nearly a year has elapsed since the filing of the report, and no steps have been taken by anyone towards the confirmation or modification of the same, and the fees of the referee remain wholly unpaid. This is an application by the referee for. an order taxing his fees and directing the accounting executor to pay the same as taxed. The question whether the surrogate has power to make such an order seems to be entirely novel.

Section 2546 of the Code provides that the surrogate- may appoint a referee in certain special proceedings, whose power and compensation (see also section 2566) shall be the same as> a referee appointed by the supreme court for the trial of an issue of fact in an action. The fees of a referee appointed under this section, therefore, are limited to those of a referee-appointed by the supreme court. It has been held that where a referee appointed by the supreme court is unable to collect his fees, his only remedy is by action. Geib v. Topping, 83 N. Y. 46. It is claimed, however, that the rule laid down in Attorney-General v. Continental Life Insurance Co., 93 N. Y., 45-47, modifies the rule enunciated in Geib v. Topping, supra, and should apply to the fees of a referee on an executor’s account, as well as those of a referee on a receiver’s account) the powers and duties of both officers being quite analogous. The same learned judge wrote the opinions in both the cases quoted above, and I think he intended to make a distinction as to the payment of the fees of a referee dependent upon the subject matter of the reference. An ordinary action in a court of record is a controversy between individuals to adjust their private rights as between themselves. There is no fund in court to be distributed, nor auy interest or jurisdiction in the matter except to determine the dispute according to the forms of law, and have judgment recorded. The successful litigant collects, if he can, the damages, costs and disbursements so awarded to him. If he cannot, it is his private misfortune, as to which the court awarding judgment has no responsibility and no concern.

In an accounting proceeding in the surrogate’s court the situation, power and duty of the court are quite different. The accounting executor is an officer over whom it has general supervision and control. Code, section 2472, subd. 3. It is his duty as such officer to manage, pay out and distribute the personalty according to the will of the testator and as directed or approved by the court that, by its letters testamentary, has authorized him so to do. For the purpose of such distribution the fund is in court, and there the executor seeks the final approval of his acts, with directions as to the distribution of the funds remaining and his discharge from the responsibility of his office. To ascertain the facts in tire matter, the court appoints another as its officer, i. e., a referee, and being furnished with his report, approves or disapproves of the conduct of its accounting officer. Such a distinction as the foregoing must have entered Judge Rapallo’r mind when he said in Attorney-General v. Continental Life Insurance Co., supra: “Ordinarily a referee must look for his fees b> the party who takes up the report., and not to the adverse party. Geib v. Topping, 88 N. Y. 46. In this case the party in whose favor the report was made being a receiver appointed by the court, whose uegal expenses are properly payable out of the fund, the court has power, in the first instance, to order the referee’s fees paid directly out of the fund.”

I think the analogy between a receiver and an executor or administrator is sufficiently complete to apply the rule last laid down. Both are officers of a court which holds a fund as to which both must account, and from which, before distribution, the proper charges of each must be deducted. An appraiser, like a referee, is appointed by the surrogate’s court to aid it in certain directions. Section 2565 provides that his fees shall be taxed by the surrogate and paid by the executor or administrator. I think the same principle applies to the fees of a referee. This is not a question of a disputed claim against an executor, but simply the enforcing by the surrogate of the collection of part of the fees of his court. If the surrogate has the power to appoint a referee it would seem that such power could carry with it the right to direct, the compensation. Surrogate Rollins (Re Kraus, 4. Dem. 271) says: “If the referee shall see fit to file his report without exacting his fees, provisions may be made in the decree or order that may hereafter be entered in this proceeding for the payment of those fees by such of the parties hereto as may be found justly chargeable therefor.” There was a stipulation between the parties entered on the minutes that the referee should be allowed a fair compensation beyond the statutory fees, but the precise rate was not fixed. This stipulation is now repudiated. In such case the court has no power to grant more than the statutory compensation. This sort of practice, however, was aptly characterized by Judge Gray in Griggs v. Day, 135 N. Y. 469, where he says, at page 472 (48 St. Rep. 470) : “In the present case the defendants have sought to escape upon a purely technical objection from the effect of a written stipulation, which it was their duty to recognize, and which the promptings of a moral and honorable sense should have impelled them to abide by.”

I will tax the referee’s fees at ninety-six dollars, and he may present an order directing the executor to pay them forthwith, and also the fees of the stenographer amounting to $160.95; in all the sum of $256.95.


source: Caselaw Access Project

author: Lansing, S.

license: Public Domain

text:
    In the Matter of Proving the Last Will and Testament of John Wheeler, Deceased.

      (Surrogate’s Court, Rensselaer County,

      Filed October, 1893.)
    1. Evidence—Declarations.
    All acts or declarations, forming part of the act or transaction to be proved so as to explain or qualify it, are admissible when such transaction or act forms the fact in issue or is deemed relevant thereto.
    2. Will—Testamentary capacity.
    No presumption of want of testamentary capacity arises from old age alone, nor from enfeebled condition of body or mind.
    3. Same—Undue influence.
    Where it has been once proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is upon the party who alleges it.
    4. Same.
    Where the alleged testator is quite old and somewhat weakened, by reason of age and infirmities, both in body and mind, the burden is shifted upon the party in whose interest an important change in the will is made.
    5-, Same.
    The presumption, which the law raises under such circumstances, is one of fact and not of law, and may be repelled.
    Application for the probate of the will of John Wheeler, deceased.
    King & Speck, for proponent; Cornelius Snyder and John P. Albertson (William J. R. Roche, of counsel), for contestants.
   Lansing, S.

—John Wheeler, late of the town of Sandlake, in this county, died March 3, 1891, aged 86 years. He left surviving him no widow, child or descendant, brothers or sisters, but nephews and nieces and grand nephews and nieces, some twenty in number, his only heirs at law and next of kin. His wife died some fifteen years before him and after the death of his wife and down to the time of his own death, he lived on his farm in Sandlake in the family of his nephew, George P. Gardner. The deceased had taken his nephew into his family upon the death of his mother, Wheeler’s sister, when he was an infant only a few weeks old, and they lived together upon the farm for a period of more than fifty years.

The farm upon which he lived consisted of about 150 acres, the value of which is variously estimated from $5,000'to $8,000. He was also the owner of a small amount of personal property of tire value of about $1,500.

The instrument propounded for probate as his last will was executed September 22, 1890, about six months before his death. The will was prepared by his neighbor and friend, Andrew J. Smart, who also attended its execution. It was witnessed by two persons residing in the neighborhood, who had Imown the testator for many years. By this will the bulk of the testator’s property, which consisted of his farm, stock and farm ■equipments, was devised to his nephew, George P. Gardner, subject to the payment of $1,500. Legacies of $50 each were .given to some ten of his nephews, nieces, grand-nephews and grand-nieces, and two legacies of $100 each to the wife and daughter of George P. Gardner. It appeared that Mr. Smart drew and attended the execution of a prior will, in 1885 or 1886, which was destroyed at tire direction of the testator after tire execution of the will of September -22, 1890. All the legatees mentioned in the earlier will are also legatees in the will in question except Col. Silas Wheeler and John A.- Coons, both of whom died after the making of the former will, and except, also, Hiram Taylor, a grand-nephew of the deceased, who was given $1,200 under the will of 1885, and nothing under the present will. Ho legacies were given to the wife and daughter of George P. Gardner in the first will.

By the former will George P. Gardner and John A. Goons, since deceased, were named as residuary legatees and devisees, hut in the last will George P. Gardner remained as the sole residuary legatee and devisee.

By the former will George P. Gardner was given the farm and its equipments in the precise terms employed in present will, except that in former will he took the farm subject to the-payment of $2,500 instead of $1,500, as provided in the last-will. A legacy of $100 was given to each of the four children of the testator’s grand-nephew, Hiram Taylor, and a like sum was given to each of testator’s nephews and nieces, Col. S. Wheeler, Michael Wheeler, John C. Wheeler, Alvina Goewey and Zilpha .Fielding, and to his grand-nieces, Cora Metcalf and Teletta Upharn; each of these legacies was reduced to $50' under the last will.

Andrew J. Smart was named as executor in each will, but filed his renunciation after presenting the latter instrument for probate.

Hone of the contestants, except Hiram Taylor, a grandnephew; John C. Wheeler, nephew, and Zilpha Fielding and Lucy Metcalf, nieces, are mentioned as legatees in the present will or in the will of 18S5. The three last named nephews and nieces receive $50 less in the present mil than in the will of 1885.

The substantial difference between the will of 1885 and the present will, so far as the contestants are concerned, is the omisision in the latter instrument of a legacy of $1,200 to Hiram Taylor contained in the will of 1885.

The probate of the will is challenged by the contestants upon the ground, first, that- the testator did not possess testamentary capacity; second, that undue influence was exercised over the testator by George P. Gardner in procuring the present will.

I shall not attempt an extended analysis of the evidence, which is very voluminous, upon the question of testamentary capacity of the alleged testator. It is sufficient to say, after a. very careful examination of the evidence, I am satisfied, notwithstanding the age of the testator and his considerable impairment in physical and mental vigor that he possessed sufficient mind and memory to make the will in question.

. It is well settled in this State that “no presumption of testamentary incapacity arises from old age alone. ISTorcan incapacity to make a will be inferred from enfeebled condition of mind, or body.”. Horn v. Pullman, 72 N. Y. 269; Van Guysling v. Van Kuren, 35 id. 70; Bleecker v. Lynch, 1 Brad. 458, 472;, Van Alst v. Hunter, 5 Johns. Ch. 148.

In the latter case the Chancellor says: “The control which the law still gives to a man over the disposition of his property, is one of the most efficient means which he has in protracted life to command the attention due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been produced by fraudulent arts and contains those very dispositions which the circumstances and the situation and. the course of natural affection dictated.”

The true test of testamentary capacity is, did the testator have sufficient intelligence to comprehend his property, his relations to those who are or may be the objects of his bounty and the scope and meaning of the provisions of his will? If so, he was in law of sound mind and memory. Horn v. Pullman, supra; Delafield v. Parish, 25 N. Y. 10.

“It is not necessary that he should be able to collect all these in one review. If he understands in detail all that he is about and chooses with understanding and reason between one disposition and another, it is sufficient for the making of the will.”' Wilson v. Mitchell, 101 Penn. St. 492, 502; Sehouler on Wills,, section 83.

“Hor is it necessary that the particular will and its provisions should have originated with the testator", provided ho understands and adopts and sanctions whatever disposition was. proposed and embodied in the instrument.” Tunison v. Tunison, 4 Brad. 138; Sehouler on Wills, section 233.

Let us consider the testimony in the light of these rules. It, -appears that although the testator’s health was quite feeble, ,vet he was able to be about the house when the will was made and during the same fall and after the will was executed, was ■engaged in light work about the farm. He dug potatoes, husked com and busied himself about such farm work as an industrious old man might do.

Considerable testimony was given by the contestants tending to show that the deceased was very feeble physically during the last years of his life; that he was afflicted with a hacking cough, had occasional lapses of memory, that he wandered off and was lost, on one occasion (the same year the will was executed), and was found in the field upon his farm, where he had fallen upon the ground and remained unable to rise. That upon that and other occasions he appeared dazed and confused and could not walk without assistance, and on occasions -complained of his head and said he could not remember as well ;as he used to. The family physician, Dr. Nichols also testified "that in his judgment his mind was impaired; that in his opinion the deceased was not of sound mind on the 22d day of September, 1891, but the doctor on further examination stated that he •could not express such an opinion disconnected from knowledge which he gained in attending the deceased professionally. This "testimony is> therefore, inadmissible, and was excluded. But if retained sufficient facts were not stated by him to warrant me in accepting this opinion even in connection with the eontestnats’ other evidence against a great body of testimony from "the acquaintances, neighbors and friends of deceased, who testified from personal intercourse wth him during the latter years -of his life, touching his health, intelligence, physical and mental vigor, as evidenced by his appearance, conduct and conversation, to the effect that not only about the time of the making of the will, but for a considerable period prior and •.subsequent thereto, the testator possessed a large measure of intelligence and mental vigor for a man of "Lis years; that he was affected with no delusions, that Lis conduct was natural and his conversation rational and intelligent, compelling the conclusion that testator was possessed of a sound and disposing mind and memory when the will was executed on the 22d of September, 1891. I have not overlooked the fact that Mr. Smart, the draughtsman of the vill and a very intelligent and conscientious witness, testified that “the testator’s mind was not on that occasion sprightly, but was dull and heavy, did not work well, his memory very much impaired.” Yet he testified that he read the will to Mr. Wheeler twice, first the draft or memorandum, then the prepared instrument (indeed, the prepared instrument itself was read to him twice, once on each of two different days before its execution), •and he states, “I think he understood it (the will) as I read it; he probably understood the paragraphs as I read them;” he adds, “but possibly it slipped his mind as I read the next one,” a surmise I hardly think justified by his description of what ■occurred there. For Smart states that Mr. Wheeler answered all the questions which he asked him in regard to the changes which he desired to make in the former will without requiring any assistance, and further, that before he (Smart) commenced to prepare the memorandum for the present will, the deceased stated to him his reasons for changing the former will, and the changes were made in accordance with the reasons so stated. And, finally, as to whether the testator understood the 'changes made in the former will and the provisions of the present will, the witness testified: “It looked as though he (testator) had made up his mind, before he commenced, to cut them (the legacies) down one-half, except one, and that was to he stricken out.” And this is substantially all he did by the latter will. I am quite sure the testator knew what he intended to do in disposing of his property by his will and that he carried out his intention.

Upon the whole, then, I conclude, in the light of all the testimony and the rules of law applicable thereto, that the testator was of sound mind and memory at the time of the execution of the will. ■'

But another and more serious question is presented by the second defense, namely, that the will was induced by undue-influence exercised by George P. Gardner the principal beneficiary. For .the discussion of this question, it is important, preliminarily, to determine the admissibility of certain testimony which was offered upon the trial, decision upon which was reserved. It is charged that George P. Gadner, the principal beneficiary under the will, improperly influenced the mind of the testator to omit the legacy of $1,200 from the present will which the testator had given in the former will to Hiram Taylor, a grand-nephew of the testator, who had lived with him a great many years. For the purpose of proving this charge, it was material and proper for the contestants to show not only interest and opportunity, but a disposition on the part of Gardner to produce the result. For the purpose of showing this-disposition it was proven that Gardner personally procured the attendance of the draughtsman to draw the will. In this connection the contestants offered to show further that on the way over to Wheeler’s house a distance of a mile or two Gardner said to the draughtsman that the old gentleman (Mr. Wheeler) wanted alterations made in the will and wished him (Mr. Smart) to come down and make them; that Gardner further said “that he was surprised that Mr. Wheeler should have given his property or any of it to a drunkard, and he named as-the drunkard Hiram Taylor;” and further said “that the old gentleman had given away more property than he had” and “had he known that there was any such intention to give his property to Hiram Taylor, he would have had a deed of the farm before that”

The introduction of this testimony was strenuously resisted upon the ground that the declarations or admissions of one of several legatees are not admissible to impeach the validity of a will, where such admissions may affect others not in privity with the party. In support of this position they cite: Matter of the Will of Baird, 47 Hun, 77, 14 St. Rep. 172; Brush v. Holland, 3 Brad. 240-242; Shailer v. Bumstead, 99 Mass. 112, 124.

Undoubtedly such declarations are inadmissible as independent testimony to show what a legatee or devisee had done or intended to do, to improperly influence a testamentary disposition ■of property. But it seems to me that for the purpose of showing motive or disposition to do so, the statement made to the -draughtsman by the devisee in connection with this act of securing the attendance of the draughtsman, was part of the res gestae .and is competent. It might serve to characterize the act of the devisee in procuring the draughtsman, which was proven to show a disposition to do the act charged. The declaration seems ■clearly within the rule that all acts or declarations forming part of the act or transaction to be proved so as to explain or qualify it, are admissible when such transaction or act dorm the fact in issue or is deemed relevant thereto. Stevens Digest Law of Ev. page 6; Waldele v. N. Y. C. & H. R. R. 95 N. Y. 274; People v. Davis, 56 N. Y. 95, 102; Eighmy v. People, 79 N. Y. 546.

Suirogate Bradford, in the case of Brush v. Holland, supra, while holding such declarations competent, insists that they .should have little weight as reflecting the mind of the person making them, since they may spring from a boastful spirit. But it is not necessary to determine the, weight of this testimony here.

Having decided to admit this evidence, it is important to consider its effect in determining the burden of proof. Ordinarily when it has been well proven that a will has been executed with due- solemnities by a person of competent ■ understanding and apparently a free agent, the burden of proving that it was executed under undue influence is upon the party who alleges it. Tyler v. Gardiner, 35 N. Y. 559; Baldwin v. Parker, 99 Mass 79, 85: In re Will of Martin, 98 N. Y. 196; Matter of Green, 67 Hun, 531, 48 St. Rep. 450.

But it seems to me, where, as in this case, interest and opportunity are shown; and testimony tending to show a disposition upon the part of the person charged with undue influence has been introduced, and it further appears tha.t the party charged had peculiar opportunity of influencing the mind of the alleged testator by reason of his being a member of his family, dedependent upon him for the supply of his wants and the comforts of a home; and further that the alleged testator was quite-old and somewhat weakened, by reason of age and infirmities, both in body and mind, that the burden is shifted upon the-party in whose interest an important change in a will is made; and that he should be called upon to produce satisfactory evidence that the provisions made in his own favor in the later will, following the change in the former will, was the result of the free act and will of the testator, entirely uninfluenced by any device or improper influence upon his part.

The presumption which the law raises under such circumstances is one of fact and not of law and may be repelled. Marx v. McGlynn, 88 N. Y. 371.

The proponent in this case insists that be has assumed the burden and furnished ample evidence repelling any and every imputation of fraud or undue influence on his part, and shown that the instrument propounded was the free act and will of the testator. In support of this contention lie insists that the testmony shows clearly and satisfactorily, first, that the will was executed in due form with all the solemnities required by the statute, by a person of sound mind; that it was made after-careful explanation and consideration of every paragraph of the will; that several hours were spent in its preparation by the-testator and the draughtsman upon two separate days; that it was carefully read to him twice, upon different days, before its-execution, and received his approval; that the history of the-drafting and the execution of the will show that no undue influence was exerted by anyone at thafc time; in addition thereto-the draughtsman testified, “I think when I arrived there he (testator) knew what he was going to do.” Second, that the will in question was drawn along the lines of the former will prepared five or six years before by the same draughtsman, without the knowledge of Gardner, when the testator had the aid of an old and tried friend, and was engaged several hours in its preparation and framed it with full knowledge of, and after due consideration, of the claims of his various relatives, upon his bounty. That said will contained substantially the same provisions in favor of George P. Gardner as the present will. That by the former will George P. Gardner was given the farm, the stock and its equipments, charged with the payment of legacies to the amount of $2,500. That at that time the farm was of the probable value of $10,000 or $12,000. That at the time of the death of the testator the farm was estimated to be worth only from $5,000 to $8,000 showing an estimated shrinkage in value from one-third to one-half. Third, that at the time the last will was - dravm, the testator stated to Mr. Smart, the draughtsman, the reasons he desired to change his will. The reasons stated were that “he did not want his property-drunk up in rum;” that he did not want to give money to dead men, and that he had given away more than he had. That it appeared that the will of 1885 was changed only so as to conform to the instructions which the testator gave to the draughtsman. That the changes made were, first, to eliminate the names of those deceased since the former will; second, to lessen the amounts given to the ten or twelve legatees in the former will from $100 to fifty dollars, only three of whom are contestants, of the present will. That the remaining contestants, except Hiram Taylor, received nothing under either the former or later will; third, that the testator believed Hiram- Taylor to be a drunkard, and for that reason omitted him in the new will. That it was of him! the testator spoke when he said, “I don’t want my property drunk up in rum.” Fourth, that George P. Gardner was the child by adoption and the object of affection of the testator; that he was reared in his family, given his family name, which he retained until he was twenty-one years-of age (when it was changed by reason of some difficulty about voting). That George married, brought his wife to his home, and after the death of the testator’s wife, twelve or fifteen years prior to his own, the testator became a member of Gardner’s family on the farm, ate at his table and resided with. him until his death, a period of more than fifty years. That the mutually acknowledged relation of parent and child had existed between them during this entire time. That the testator had •an abiding affection for George, which among other evidences was manifested by the fact that although Hiram Taylor (who was also reared in the family of the deceased and remained with him from the time he was three years of age until he was about twenty-three) was in his youthful days much more tractable, industrious and respectful than George in his treatment of the testator, yet Hiram was permitted to leave when he married, while George was retained and continued with the testator until his death. That although a considerable, amount of testimony was given showing that George at times was disrespectful to, and at times chided, the testator, using language more forcible than polite, yet it appeared that upon most occasions it arose from solicitude on the part of George for the health or safely of the testator. And it is insisted that the deceased never received any intentionally harsh or unkind treatment from Gardner or his family and never even complained of any; that on the contrary the evidence shows that his treatment by Gardner, and especially by Gardner’s family, was very kind and considerate and was so regarded by the deceased. Fifth, that considering the relations of these parties, there is nothing in the change made in Gardner’s favor by the later will, charging the farm with the payment of $1,500 instead of $2,500 or the legacy of $100 each to his wife and daughter, which may not reasonably he presumed to have resulted from motives of gratitude and affection or been prompted (in view of the change of the value of the testator’s estate) by his desire of carrying out his original intent of giving Gardner the farm without burdensome charges. And finally, that the deceased stated repeatedly during his life, when in full health and strength, that he regarded George P. Gardner as his son and expected his property to go to him, and complained that his other relations had shown him little or no attention and said they would get but little from him.

To this contention the contestants reply that, assuming that the testator did intend to make George P. Gardner his principal beneficiary and give him the bulk of his property, yet it is apparent that George P. Gardner did exercise his influence to exclude Hiram Taylor from any share in the testator’s properly, and that he substantially received the benefit of it for himself and his family and they insist that the very fact that' the testator was found uttering the same reasons for changing his will as those which were given by George P. Gardner to the draughtsman when he was conveying him to the testator’s house to make the change furnishes cogent evidence that this particular act was inspired by George P. Gardner, and they insist that his will dominated the will of this feeble old man and produced the ■change in the will against him.

This contention has much force, and deserves and has received careful attention. But it seems to me that it is met by this consideration. If it was not true, as stated and believed by the testator, that Hiram Taylor was a drunkard' and that “his money would be likely to be drunk up in nim,” it was in the power of the contestants to show that" fact. They failed to do so, although ample opportunity' was afforded upon the trial and even after the trial, a proposition on the part of the surrogate to open the casé and take further testimony upon that point, if either party desired, was declined. It is clear that the deceased believed the charge; and acting upon that belief it certainly was not an unreasonable act to "exclude Hiram Taylor from any share or portion of his property.

Although I have held that the burden of proof was upon proponent to repel the presumption of undue influence arising from Gardner’s declarations and his somewhat peculiar relations t,o the deceased in this case, yet the proponent having shown that the testator held and gave a sufficient reason for the change in his will, 'it seems to me that it then devolved upon tire contestants, in order to fasten their charge of undue influence upon George P. Gardner, to show not only that the charge was untrue, but that George P. Gardner, knowing it to be um-true, or not believing or having reason to believe it to be true, induced the testator to believe it to be true, and thus produced, the result in question.

George P. Gardner could not testify under the law as to' v/hat he did or did not tell the testator upon the subject, but it-is very obvious that the testator, who was upon good terms with his neighbors and in constant intercourse with them and with the men who were employed upon the farm-—of whom there were several every year’—had ample opportunity to learn of the character and habits of Hiram Taylor, who resided in the same neighborhood, from others beside George P. Gardner. So that no inference is necessarily drawn from the fact that Gardner and the deceased held and expressed the same opinion concerning the habits and character of Taylor, that the testator received his information upon the subject, whether true or false, from Gardner.

The law applicable to this branch of the case seems to me to be exceedingly well stated in Schouler on Wills, section 238:

“If the disposition appears on the whole a just and reasonable one, or even such as the testator would naturally have made under all the circumstances with a due perception of the act engaged in, the property possessed and the fit claimants to his bounty, little remains to urge against the will unless it can be positively shown that the will notwithstanding was not that of of tlie testator.”

And I venture to add the following—that where a satisfactory reason is given by a testator for a change in his will, the law will not presume that the change was produced by undue influence upon the part of another, even though such person be solely benefited thereby, but there must be absolute proof to establish the charge.

In conclusion I am satisfied that the deceased intended that the property which he had accumulated by so many years of patient toil, industry and economy, should be received and enjoyed by his foster son, who was the principal beneficiary in his former will, drawn beyond question when he was- competent to make one. That his legacies to his other relatives, except Hiram Taylor, were regarded by him as of comparatively slight importance, and their reduction in amount under the circumstances of this case, does not warrant the presumption of fraud or improper influence. That the legacy to Hiram Taylor was omitted for the reason stated by testator, and there is no • evidence that the charge was untrue or that it emanated from George P. Gardner. And finally, I am satisfied that to set aside this will and scatter this property among the twenty odd nephews, nieces, grand-nephews and grand-nieces of the testator, many of whom were not named in either of his wills, and to deprive George P. Gardner of the estate which the testator had in both wills planned to give him, would he a gross wrong both upon the living and upon the dead.

Let proper findings be made,- and a decree entered accordingly.


author: Davie, S.

text:
    In the Matter of Benjamin Cooper, Deceased.

      (Surrogate’s Court, Cattaraugus County,

      Filed January, 1894.)
    1. Executors, etc.—Disputed claim.
    The surrogate, upon an accounting by the personal representative of a deceased executor, may determine the validity of a claim of such deceased executor against the estate of testator.
    2. Contract—Implied promise.
    A promise to pay for services will be implied, unless a presumption arises from the relation of the parties that they were rendered without any expectation of compensation.
    3. Trust—Specific purpose.
    Delivery of money to a person, to be applied to specific purposes, to which he assents, creates a valid trust.
    Proceedings for a judicial settlement of the accounts of the executors.

      Thrasher & Leonard, for Ezra Cooper, the surviving executor ; J. M. Congdon, for administrators of Henry H. Atwell, the deceased executor; J. J. Inman and W. S. Thrasher, special guardians, pro se.

   Davie, S.

Benjamin Cooper died at the town of Perry s-burgh on the 14th day of February, 1892, at the age of 88 years,_ leaving him surviving no widow, children or descendants. His will, bearing date July 9, 1891, was admitted to probate May 2, 1892, and letters testamentary thereupon issued to Ezra Cooper and Henry H. Atwell, the executors therein named, who continued to manage and control the estate,, acting together, until the death of the executor, Atwell, on the 19th day of September, 1892. Shortly after Atwell’s death his widow and son were appointed administrators of his estate. The surviving executor and the administrators of the estate of the deceased executor present their petition for judicial settlement herein. At the time of the death of the testator, Atwell was indebted unto him upon a promissory note, dated June 5, 1891, for the sum of $300 and interest, due one year after date, for which it is claimed that the representatives of the Atwell estate should account. On the contrary it is alleged that during the last' year of testator’s life Atwell rendered services for him greatly exceeding in value the amount of such note, and for which the administrators present a claim, and seek to have the same adjudicated upon this accounting. On the return of the citation the parties opposed to the allowance of the claim moved that this proceeding, in so far as it related to such claim,, be dismissed upon the ground that the Surrogate’s court, had po jurisdiction to try the disputed question of fact involved in the determination of the claim, and that it was not a personal claim, within the general scope and view of section 2739 of the Code. The motion was denied, but if it should be determined upon a careful examination that, the Surrogate’s Court had no jurisdiction, then the proceedings should be to that extent dismissed, and the parties left to their remedy by action or by a reference under the statute to determine the controversy between the two estates. The section of the Code referred to provides that—

“Upon a judicial settlement of the account of an executor or administrator he may prove any debt owing to him by the decedent; where a contest arises between the accounting party and any of the other parties respecting any property alleged to belong to the estate, but to which the accounting party lays elaim, or respecting a debt alleged to be due by the accounting party to the decedent, or by the decedent to the accounting party, the contest must be tried and determined in the same manner as any other issue arising in the Surrogate’s Court.” Code, section 2339; Laws 1893, c. 686, section 2731.

Had Atwell survived, no doubt would have existed in regard to the authority of the Surrogate’s Court upon this accounting to have determined the extent of his indebtedness to the estate or the indebtedness of the estate to him. Does the fact of his death, and that he is represented upon this accounting by his personal representatives, deprive the Surrogate’s Court of jurisdiction to determine precisely the same questions ? Ho authorities are cited bearing directly upon this question, but it has been held that the Surrogate’s Court has jurisdiction upon judical settlement to hear and determine all claims in which an executor is interested, and the circumstance that he is interested jointly with others in the demand does not affect the authority to adjudicate with regard to it, Estate of Eisner, 5 Dem. 383; that a surrogate has authority to determine whether a claim against an executor is discharged by will, Stevens v. Stevens, 2 Redf. 265; that, where an executor’claims the right to retain out of the assets of the estate a certain sum of money as belonging or due to him, the surrogate has jurisdiction, whether such right depends upon legal or equitable principles, Boughton v. Flint, 74 N. Y. 476; that the executor acquired an additional interest in the claim sought to be established after he became executor does not affect the jurisdiction, Shakespeare v. Markham, 72 N. Y. 400; that the surrogate has jurisdiction to pass upon and settle claims held by the executor or administrator in a representative capacity against the estate as well as one held by him individually, and the fact that others were joined as administrators of one estate, while he was sole administrator of the other, was immaterial, Neilley v. Neilley, 89 N. Y. 352. While none of these cases are directly in point, they evidence a design on the part of the courts to so construe and apply this section 2739 of the Code as to clothe the surrogate with ample authority on judicial settlement to determine all property righto between administtrator or executor and the estate which he represents and which are necessary to be determined in order to secure a full adjustment of all matters connected with the trust. Upon qualifying and assuming control of the assets of the estate as executor, At-well incurred the obligation of properly administering upon and duly accounting for such assets, and this obligation is not affected by the fact of his death. The statute declares that the amount of his indebtedness to the estate in an asset to be accounted for as so much money in his hands (2 Rev. St. 84, section 13; Baucus v. Stover, 89 N. Y. 1), but the extent of such indebtedness depends upon the validity of his personal claim; hence, it becomes indispensable to pass upon sxxch claim in order to determine whether the representatives of Atwell’s estate should account for the amoxxnt of the note as assets. The conclusion, therefore, seems inevitable that the provisions of section 2739 •of the Code are sufficiently comprehensive to confer jurisdiction in a case of this character, and that the claim shoxxld not be dismissed for lack of jurisdiction, but disposed of upon its merits.

. The evidence clearly shown that during the last year of testator’s life Atwell rendered important and necessary services •for him. About the 1st of July, 1891, testator deemed his condition such as to require an attendant at night. Accordingly Atwell began staying with, and attending upon him, during the night time, and continued doing so xxntil about the 10th day of September, when he began staying with testator both day and night; and from that time to testator’s death Atwell was i,n attendance upon him sxxbstautially all the time, and during that period Atwell had, to a great extent, the responsibility of administering medicines to testator, slept in the same room with him, attended his calls, waited upon, nursed, and cared for him. The services were to some extent of an unpleasant and disagreeable nature. The testator was afflicted with a urinary trouble, rendering the use of a catheter frequently necessary, which operation was usually performed by Atwell. While the evidence clearly discloses the meritorious character of the services, it is not so easy to discover therefrom a satisfactory and legitimate measure of the value of such services. Mrs. Waterman testified that she had been a nurse for 30 or 40 years, and that she knew the value of the services rendered by Atwell and that they were worth from five to six dollars per day; but the cross examination of this witness established her utter incompetency to speak as to the question of value. The evidence of the witness Vosburgh was in much the same situation. While he testified that the services were worth five dollars per day, it appeared that his opportunities for becoming familiar with the value of that kind of services were confined to a single transaction, where he cared for, boarded, and nursed a sick man. for three weeks and received five dollars for so doing. The attending physician was unable to give any opinion whatever as to the value of the services. Dr. Rugg, who knew in a general way the condition of the testator, testified that if the testator was entirely helpless, requiring attention all the time, the services were worth from four dollars to five dollars per day; but assuming that from the middle of July to the middle of September Atwell merely slept there nights, called occasionally to wait upon the testator, and during the last five months had assisiance in caring for him, and that the testator was not confined to his bed until within a short time before his death, but was up and dressed, such services would be worth from two dollars to two dollars and fifty cents per day. • The latter assumption is much more in conformity with the actual facts. The- evidence as to testator’s . condition, and what Atwell actually did, under Dr. Rugg’s estimate of the value of the services, would not to any extent justify or sustain a finding that such services were worth to exceed two dollars and fifty cents per day while Atwell was in attendance both day and night, and one-lialf that sum when there nights only. Testator was not entirely helpless, and did not require attention all the time. He was up and dressed in the day time, and able to go to the table for his‘meals until shortly before bis death. This makes the total value of the services $472.50. But it is urg'ed upon the part of the contestants that, whatever the value of the services, they were rendered under such circumstances, and the relations existing between- Atwell and the testator were of such a character, that the legal presumption is that they were rendered gratuitously. Ordinarily, where one receives the beneficial services of another, the law implies a promise to pay what such services are reasonably worth; but such presumption may be entirely overcome by the circumstances of a particular case. The legal presumption of an obligation to pay is very weak when the services rendered are of such a character that, from the relations existing between the parties, they evidently were prompted by motives of affection and reciprocal obligations. If the circumstances are such as to lead to the conclusion that the services were rendered gratuitously the law will not imply an obligation to pay. It has been distinctly held that, however valuable the services, one cannot render them with a tacit understanding that no pecuniary charge is to be made therefor, and afterwards recover upon a quantum meruit. Moore v. Moore, 3 Abb. Dec. 303; Williams v. Hutchinson, 3 N. Y. 312; Ross v. Ross, 6 Hun, 182. While no doubt exists in regard to this legal proposition, the evidence by no means justifies its application to the case at bar. It is true that the relations between Atwell and the testator were, and for many years had been, of a friendly character. Testator was accustomed to call upon Atwell, from time to time, for advice and assistance and occasionally spoke of him as his boy; yet the evidence does not disclose such a state of reciprocal obligations between the parties as to render it presumable that either Atwell or testator understood that these services were being rendered without, expectation of pecuniary compensation. The statements and declarations of testator imply a contrary intent. While the amount of compensation was not fixed by the agreement of the parties, the evidence shows that testator expected to pay what such sendees were reasonably worth. Shortly after the commencement of the sendees, testator stated to Atwell, in the presence of Mrs. Waterman, that he had a $1,000 mortgage and a $500 note, and that he was going to fix it so that Atwell could collect them; and the $1,000 he was going to give to Atwell and the $500 to Mrs. Waterman, because of the services they had rendered and the kindness they had shown him. He repeated this statement to Atwell on several occasions while the services were being rendered. On another occasion testator said to Atwell that he wanted to and was going to pay him well, and he thought it would be right that he should allow the $1,000 for his services. The entire evidence in the case is susceptible of no other construction than that it was the mutual expectation that Atwell should receive a reasonable compensation. This case seems to come fairly within the scope of Markey v. Brewster, 10 Hun, 16.

There is, however, another feature of this case requiring careful consideration. It appears that during the time Atwell was caring for the testator he delivered to Atwell the sum of $1,500 in money, and the circumstances attending such delivery are disclosed by the cross-examination of the witness, Mrs. Wateerman:

“Q. Did you hear a conversation between Atwell and Mr. Cooper, and what Mr. Cooper told Atwell to do with this money ? A. He told him to take eight hundred dollars—five hundred dollars to give to Mrs. Abbott, one hundred dollars to her mother, two hundred dollars to be sent to Washington Territory to her sister and brother. Q. What about Mrs. Lincoln? A. Was to have one hundred dollars. Q. Anything said about what was to be done with the balance of the money ? A. He told him. Q. What did he say ? A. He told him to keep the remainder for my use. Q. You heard Mr. Cooper tell him that? A. I did. Q. What did Mr. Atwell say ? A. He said he would do it; they should he done according to the request.”

Very soon after the receipt of the money Atwell paid to the various persons designated by the testator their respective amounts, and the balance he had in his possession at the time of testator’s death. It is claimed on part of the surviving executor that such transaction merely constituted Atwell an agent to disburse this money for the testator, and that- such agency was terminated by testator’s death; that the portion of this fund which remained in Atwell’s hands at the death of testator constitutes a part of his estate, and that Atwell’s representatives should account for the same. On the contrary, it is asserted that this transaction, construed in the light of all the attendant circumstances, constituted a valid trust, and that the title to such fund vested in Atwell as trustee, with Mrs. Waterman as cestui que trust, and that Atwell’s representatives are under no obligations to account to any one but her therefor. It is undoubtedly true as a legal proposition that if it was the intention of the testator to constitute a mere naked deposit of this money in the hands of Atwell, thereby creating only an oral agency, coupled with no interest on Atwell’s part, such agency was revocable at the pleasure of testator, and upon his death ceased by operation of law (Story, Ag. 463-488); but if it was the design of testator to part with the title to and all control over this fund, to place it absolutely and unqualifiedly in the hands of Atwell, to use for the benefit of Mrs. Waterman, then the transaction was not in any manner affected by testator’s death. It will be observed that there was no legal impediment to the creation of a trust of the character claimed to exist in this case. A trust of personalty is not within the statute of uses and trusts, and may be created for any purpose not forbidden by law (Gilman v. McArdle, 99 N. Y. 451) ; and in order to constitute a trust in respect to money or personal estate, no formal or written agreement is necessary (Day v. Roth, 18 N. Y. 448; Gilman v. McArdle, 99 N. Y. 451). In construing this transaction it is competent and proper to take into consideration the attendant facts and circumstances evidencing the motive and intent of the testator. Day v. Roth, 18 N. Y. 448. If the circumstances clearly indicate an intention to create such a trust, it is sufficient. Minchin v. Merrill, 2 Edw. Ch. 333. In seeking to discover the intent of the testator, it will be necessary to refer to the relations existing between the parties. It appears from the evidence that Mrs. Waterman began residing in the family of the testator before the death of his wife, which occurred in February, 1887, and from that time continued to reside with the testator in the capacity of housekeeper until his death. She assisted to some extent in nursing and caring for testator, who frequently expressed his appreciation of her kindness, and a design to compensate her therefor. After the making of his will, and evidently about the time of delivering the money in question to Atwell, testator expressed an intent to give to Mrs. Waterman the proceeds of a $500 note, assigning as his reason for so doing that she had rendered services and been kind to him. This note, however, was never transferred to Mrs. Waterman. Moreover, at the time of delivering the money to Atwell, testator expressed no intention of retaining any control or jurisdiction over it. He did not retain the right to direct at what time or in what manner it should he used for Mrs. Waterman, and it does not appear that he ever made any suggestion in relation to it after delivering it to Atwell. If the testator had, at the time in question, delivered the money to Mrs. Waterman herself, telling her to keep it for her use, it would have constituted a valid gift infer vivos, and transferred the absolute title to Mrs. Waterman, and neither testator nor his personal representatives could have recovered any part of it. Has not the title passed just as absolutely by a delivery of the fund to Atwell for the use of Mrs. Watenúan ? In the case of Gilman v. Ardle, above cited, it was shown that Mrs. Gilman placed in the custody of the defendant about $2,000, and directed him to use the money for the support and maintenance of herself and husband as long as they lived, and after the death of the survivor to pay their funeral expenses, and erect for them suitable monuments, and expend the residue in masses for the repose of the souls of herself and husband. It was claimed by the plaintiff in that case that the transaction ereated a mere agency, revocable at the pleasure of Mrs. Gilman,, and that no title to the fund passed to the defendant, and that, in consequence, the agency was revoked by her death; but the Court of Appeals held that such was not the case; that a valid trust was thereby created, saying:

“Where money is paid by A to B on the promise of B to invest or employ it in a definite, specified and lawful manner, a valid contract is made:; and if there is an ascertained beneficiary interested in the performance of the agreement, he can, after the death of A, enforce it as a trust.”

In the case at bar, testator, after having frequently acknowledged the obligation he was under to Mrs. Waterman, and evidently desiring to make some certain and definite arrangement for her compensation, delivered this $600 to Atwell, directing him to use it for her. Atwell accepted the money, agreeing, unequivocally, to use the fund for that express purpose. Under the authority above cited, it is difficult to conceive of any reason why Atwell was not absolutely obliged to account to Mrs. Waterman for the entire sum. The cases are numerous illustrative of the character of transactions which the courts have adjusted to constitute valid trusts. Where S. deposited money in trust for M. and 3L, distant relatives, who were ignorant of it, S. retaining the bank book and drawing one year’s interest, it was held that a valid trust was created. Martin v. Funk, 15 N. Y. 134. Where C. F. deposited money in the bank to her own credit, “in trust for C. F. M.,” it was held to be the money of C. F. M. Millspaugh v. Putnam, 16 Abb. Pr. 380. A. delivered a package to B., containing money, a bank book and a memorandum stating where he desired to be buried, and how the balance of his property was to be distributed. Held to- be a valid trust. Pierce v. Bank, 129 Mass. 425. Where one took a bank book at the direction of his aunt, who said: “How, keep this, and if anything happens to me, bury me decently and put a headstone over me, and anything that is left is yours”—it w'as held that a trust was created. Curtis v. Bank, 77 Me. 151. Also, in a case where a testator transferred certain bank shares to himself as trustee for his daughter, she being ignorant of the transaction, and he taking the dividends. Cummings v. Bramhall, 120 Mass. 552. Also where one delivered a banlc book with an assignment of the deposit to E. on the agreement that E. should pay such sums to her as she might want from time to time during her life, and the balance to her son. Davis v. Ney, 125 Mass. 590. In the case of Mabie v. Bailey, 95 N. Y. 206, the testator made a deposit in a savings bank in his own name as trustee for the plaintiff, took a pass book in which the account was so entered, exhibited the pass book to plaintiff’s mother with other pass books containing entries of a similar character in favor of herself and other children, and when asked why he did not let them have the money then, said it would do them more good thereafter, and in subsequent conversations these deposits were recognized by the testator as a provision for the family. It was held that the evidence clearly showed an intent on part of the testator to create a trust for the benefit of the plaintiff.

It is, however, urged on part of the contestants that, assuming this transaction to constitute a valid trust, there is another reason why the representatives of the Atwell estate should account for at least a part of this fund. It appears from the evidence that after the death of the testator, and on or about the 17th of May, 1892, Mrs. Waterman and Mr. Atwell had an adjustment of their affairs, and Atwell then paid over to her the sum of $500, taking her receipt therefor, which stated that such payment was in full satisfaction of all claims which Mrs. Waterman had against him, and in full settlement for all sums which Atwell held for her, in trust or otherwise, and in particular from Benjamin Cooper. It does not appear from any other source just how much of this fund Atwell had in fact paid over to Mrs. Waterman, and it is claimed that it inferentially appears from the receipt that he settled with her in full for this $300, thereby malcng a gain for himself in contravention of the well-established principle that trustees are not permitted to retain any profits or advantage to themselves^ through their dealings with the trust fund. Citing Dunl. Paley Ag. 51; Davoue v. Fanning, 2 Johns. Ch. 252; McMurray v. McMurray, 66 N. Y. 175. But if we are right in the conclusion already reached, that the title to this fund passed absolutely from the testator, then Atwell was accountable only to the cestui que trust for the manner in which he administered the trust, and not to any extent to the representatives of the testator. The conclusion reached, therefore, is that the representatives of the estate of Atwell are entitled to recover from the estate of testator tire difference between the amount of the note above referred to and the value of the services rendered by Atwell to the testator as above determined. A decree will be entered accordingly.


text:
    In the Matter of Williams.

      (Surrogate’s Court, Cattaraugus County,

      Filed January, 1894.)
    Appeal—Surrogate—Case.
    > Under Supreme Court Rule 32, a surrogate may permit service of a. case and exceptions after expiration of the time therefor.
    Motion for leave to serve a case and exceptions.
    Henry R. Curtis (C. D. Van Aernam and Alfred Spring, of counsel), for the motion; C. Z. Lincoln, opposed.
   Davie, S.

On the 17th day of April, 1893, a decree was made-directing the mortgaging of the real estate of which the intestate-died seized for the payment of his debts, which decree also established a personal claim in favor of the administrator against the estate. On the 6th day of June, 1893, a copy of such decree, with a notice of entry properly indorsed on the back thereof, was personally served upon the contestants’ attorney. On the 4th day of December, 1893, contestants served a proposed case containing exceptions upon the attorney for the administrator* he being the petitioner in the proceedings for the disposal of the real estate for payment of debts of intestate. The petitioner’s attorney immediately returned such proposed case and exceptions, with his reasons for so doing indorsed upon the back thereof, viz., that the same was served too late, that no appeal was pending in said matter, and that such proposed case was not in conformity with the requirements of section 796 of the Code, not being legibly written. The first question to be determined upon this motion is whether or not an appeal is, in fact, pending; for, if no such appeal has been taken, and the time for appealing fully expired, no reason exists for granting the relief sought. It appears from the moving papers herein that after" the entry of the decree negotiations for settlement were entered into between the parties, and, in consequence, certain correspondence ensued between the attorneys regarding an extension of time for service of notice of appeal and a case herein. On the 12th day of August, 1893, a notice of appeal was personally served upon the petitioner’s attorney, which was immediately returned with the indorsement that the same was served too late. A motion was thereupon made for the purpose of determining whether such service was seasonably made or not. All the correspondence between the parties bearing upon the question of extension of time was then before the court, and it was thereupon determined that the proper construction to be placed upon such correspondence was that, under all the attendant facts and circumstances, it did, in effect^ constitute a valid extension of time for taking an appeal and serving a case for a period of 60 days, which had not yet elapsed when such notice of appeal was served; and an order bearing date on the 20th day of October, 1893, was thereupon made and entered, reciting to some extent the history of the poceedings, and providing “that said appeal be allowed; that said Curtis re-serve said notice of appeal upon said Lincoln within twenty days after date of this order, and that said Lincoln accept and retain said notice.” On the 15th day of November, 1893, contestants’ attorney remailed the notice of appeal to petitioner’s attorney, who at once returned it, with, the reasons indorsed that it was served too late, that it was not properly served, and that it did not appear therefrom who the parties to such appeal were. It is entirely apparent that the service of November 15, 1893, was not sufficient to perfect an appeal in the first instance. There is no authority for taking an appeal from an order or decree of a Surrogate’s Court by service of notice of appeal by mail. Code, section 2574.. If no appeal was, in fact, then pending, it was of little consequence in what manner the original notice of appeal was returned to the petitioner’s attorney. Of course, no court has the authority to extend the time for taking an appeal, or to allow an appeal to be taken after expiration of time (id. sec. 784; Clapp v. Hawley, 97 N. Y. 610) ; but it was entirely competent for the parties to stipulate an extension of time or to waive any statutory provision made for their benefit (Ex parte Crosby, 8 Cow. 119; Buell v. Trustees of Lockport, 3 N. Y. 197; Root v. Wagner, 30 N. Y. 9-17; Baker v. Braman, 6 Hill, 47) ; and the only question involved in the former motion was as to whether or not the parties had in effect stipulated such extension, and the decision of such motion was a judicial determination that the acts and correspondence of the attorneys constituted such extension, and a notice of appeal having been served within such extended time, petitioner’s attorney was not justified in refusing to accept the same. The case' and exceptions, however, were concededly served too late, and it is now urged in opposition to this motion that the Surrogate’s Court possesses no authority to relieve the 'contestants in this particular, or to permit the service of a case after the expiration of the time therefor, whatever the excuse for such default, or however meritorious the application. If such is the case, the practice in Surrogates’ Courts is sadly defective; and, if there is at present no law sanctioning the granting of such relief in a proper case, a little law should be immediately made remedying such defect. But a little observation will show that parties are not remediless in such a case. Very general authority is given to court's of record in the exercise of their discretion to relieve a party from the consequences of an omission to do an act necessary to protect his rights, upon good cause shown (Code, sec. 788), and under the authority of this section courts very generally grant the right to serve a case after the expiration of the time therefor, upon proper application being made, and upon such terms as seems just. This section is not in terms made applicable to Surrogates’ Courts (id. sec. 3347, subd. 4) ; but, if the authority to grant relief in cases of this kind is not specifically conferred upon Surrogates’ Courts by virtue of the section of the Code cited, and is not an inherent power necessarily incident to its general authority and jurisdiction, specific authority seems to exist from the provision of Supreme Court Rule 32. This rule limits the time in which to serve a case, where an appeal is taken, from an order or decree of a Surrogate’s Court, to 10 days after service of such decree or order and notice of entry thereof, but the rule further provides that “the surrogate, on appeal from his court, may, by order, allow further time for the doing of any acts above provided to be done on such appeal;” and it cannot with any degree of consistency be urged that the power to extend the time in. which to serve a case, granted by this rule, must be exercised before the expiration of the time for so doing. The only reasonable construction to be placed upon the provision of rule 32, above quoted, in view of the general mode of procedue in other courts and of the objects to be attained, viz.: a careful protection and supervision of the rights of all the parties, is that the Surrogate’s Court is clothed with ample authority thereby to permit a party, at any time after an appeal is taken, to serve a case, if the application is seasonably made therefor, and good reason shown. An order shoxild be accordingly made permitting the contestants, on or before the 10th day of February, 1894, to serve their proposed case, and to fully perfect their appeal by filing and serving the requisite undertaking on appeal and upon paying $10 costs of opposing this motion to the petitioner.

Ordered accordingly.


author: Boleman, S.

text:
    In the Matter of Edward C. Beirne, as Guardian, etc.
    ( Surrogate’s Court. Orange County,

      Filed January, 1894.)
    Guardian and ward—Gift.
    Where the intention of the guardian to make certain gifts to hi.> ward has been fully consummated by a complete delivery, he cannoi upon his accounting be credited for them as for moneys expended for the benefit of the ward.
    Proceedings for an accounting by a guardian.
    C. E. Cuddeback, for minor; John J. Beattie, for guardian.
   Boleman, S.

—Edward C. Beirne was appointed general guardian of the minor September 8, 1891. Mr. Beirne is a brother of the minor’s mother. In the month of November, 1876, he purchased five shares of the stock of the Orange County Building & Loan Association, in his name as guardian of the said Mulligan, and, at various times thereafter, and prior to November, 1888, he made divers other payments required by the rules of the association (when the same were not made by the parents of the minor) upon said stock, which, with the amount paid at the time of. purchasing the stock, amounted, in all, to the sum of $279.27. When the stock matured, he caused himself to be legally appointed the minor’s guardian, and received, as such guardian, $1,000 from the association, the then value of said shares of stock. This sum the guardian invested upon bond and mortage, which he still holds. Upon this accounting Beirne seeks to credit himself with the $279.27, paid by him upon the building and loan association stock, to which objection is made on behalf of Mulligan; it being claimed that such payments were intended to be gifts to him. It was evident, upon the hearing, that the feelings of the parties towards each other have changed from what they formerly were; and it is now necessary to determine the purpose, and the legal effect, of the acts of the' said Beirne in connection with said stock. The payments were voluntarily made, with the knowledge that the minor had no other property. When made, they became, not deposits, but an interest in the stock of the association, which, by his own act, were made to belong, upon the books of the association, to him, as guardian of his nephew. He thus parted with the dominion over the property represented by the stock, except in the capacity of guardian. Ho entry, in the nature of an account, was made of the payments, and they were not made for the purpose of protecting property belonging to the minor, unless this stock is to be considered the property of the mirfor, and, being so considered, it could not, at the same time, be the property of Mr. Beirne; nor were they made for necessities, required for the maintenance of the minor. If Mr. Beirne had died during the minority of his nephew, leaving the stock, and "the payments made by him, in the association as they stood, befdre maturity, 1 think no one could have successfully questioned the ownership of the minor. These facts, supported by the further fact that Mr. Beime himself drew the fund from the association, and invested the whole of it in a mortgage for the minor, clearly indicate to my mind an intention on his part, at the time of making the payments, to make a gift to his nephew, a purpose which he cannot now change, such intention having been fully consummated by a complete delivery, whereby he divested himself of all title thereto, and, being gifts, he cannot now be credited for them upon this accounting, as for moneys expended for the benefit of the minor.

Decree to be entered in accordance with foregoing opinion.


author: Fitzgerald, S.

text:
    In the Matter of the Will of Joseph F. Johnson, Deceased.

      (Surrogate’s Court, County of New York,

      Filed February, 1894.)
    1. Will—Execution.
    A will may be proved by the evidence other than the testimony of the subscribing witnesses.

      2. Same—Competency.
    A mind partially clouded by drink may execute a valid will.

      3. Same.
    The fact that the testator had an epileptic fit does not raise a presumption of disability after he has recovered from the attack.
    4. Same—Undue influence.
    The act of a party addicted to intemperance, in disposing of his property, will not be invalidated on the ground of undue influence exercised over him' by the inmates of his family, through kind offices springing from attachment or affection.
    Application for the probate of a will.
    Henry Kropf, for executor; Christion G. Moritz (Henry Hoyt, of counsel), for Eliza J. Johnson; Fernando Solinger and Charles H. Beckett, for contestants.
   Fitzgerald, S.

Objections were filed by the father of decedent to the admission to probate of the paper propounded as his will. The first question that arises affects the validity of its execution. The subscribing witnesses, Hollings and Kelly, prove compliance wdth all the formalities required by the statute except that Hollings does not recollect a declaration by the testator that the paper was his will, or a request for him to sign it as a, witness. He admits, however, that he was requested to sign by the proponent, Mr. 'Drake, who superintended the execution of ■.the paper. It is evident that Hollings did not regard the event as of sufficient importance to charge his memory with all the details connected with the execution. He did not recall the fact that on the same occasion he had signed another will—that of the testator’s sister—and his memory was at fault in respect to the time of the execution. His recollection was that it took place between nine and ten o’clock in the morning, whereas, it was not until late in the afternoon. Kelly’s testimony is sought to be discredited, because inconsistent with statements in a certain affidavit that he made long after he had signed the will as a subscribing witness, and also because of contradictions in the testimony he gave upon collateral matters.

To provide against the infirmities of memory and the possible hostility of subscribing witnesses, the law, by a long line of decisions, has established that the execution of a will may be proved by other evidence. This principle is recognized in section 2620 of the Code of Civil Procedure. In the Mattel’‘of Cottrell (95 N. Y. 329), both subscribing witnesses testified, not only that the formalities requisite for the due execution of a will were not complied with, but they denied that either was present at the time of the execution of the will, or signed the attestation clause. Yet the court held, on proof of the circumstances surrounding the preparation of the instrument, the genuineness of the testator’s signature, and the recitals in an attestation clause in his own handwriting, that the surrogate has sufficient facts to justify him in finding a valid execution. In the case at bar, there is not only a full attestation clause, but the testimony of the witness Drake, a reputable man, engaged in an extensive real estate business in this city, who, though not an attorney, has had experience in the drawing of wills and legal papers pertaining to real estate transactions, leaves no doubt that all the acts necessary for the valid execution of a will were performed, even without the confirmatory testimony of Miss Battjer and Freibly, who were present when the will was executed. I could not hold the contrary except on the assumption that the will was the result of a conspiracy, to support which five witnesses had been guilty of perjury.

The execution of the will having been established, the issues as to testatomentary capacity and undue influence will be considered.

Joseph F. Johnson was still a young man at his death. He had been addicted to the excessive use of intoxicating liquors for many years; had come to be a drunkard, and had suffered from delirium tremens, and some months after the execution of the will he was an inmate of the Inebriate Home. His mental powers were probably never robust, and had been weakened by his excesses.

Drunkenness may so becloud the mind as to make it incapable of doing an intelligent act. But the disability ends when the exciting cause is removed. In this it differs from insanity, which, once shown to exist, is presumed to continue until there is proof that intelligence and reason have asserted themselves. A drunkard may execute a valid instrument within a day, or even less, from a time when it would be conceded that he was incapable. In each ease the question to be determined is, whether at the time he was sober, or if not, whether his mind was so affected by drink that he was not sufficient master of himself to give expression to his real wishes. One may be so indifferent to his interests that he will neglect his estate, or, if not indifferent, his habits of intemperance may disable him from caring for it, and even make it necessary for a committee to be appointed that his estate be not wasted. It does not follow that he does not know that he has an estáte which he can bestow, of what it consists, or that he has not a preference as to who shall receive it after his death. A clear mind is needed to conduct a complicated business transaction. A mind partially clouded by drink may execute a valid will. The proofs are positive that on the 23rd day of October, 1891, when the will in question was prepared and executed, Johnson was sober. , Making due allowances for the defective memory of witnesses and their possible disposition, by reason of interest or prejudice, to vary their narratives from strict truth, the weight of evidence is that he had then been sober for some days, if not weeks. He was ill on that day and also on the day previous. If Johnson’s mind was so weakened that he could not conserve his estate, yet, if he could recollect its nature and extent, and those for whom, following the usual impulses of men, he would provide, he had the capacity to make a valid testament. It is not questioned that on October 23, 1891, he knew that there were two houses on Avenue 0, and certain property at Sugarloaf, that had come from his mother’s family, and that it was within his power, as incident to his ownership thereof, to give it to his father1, to his sister, or both, or to a stranger.

It is not necessary to refer to the many cases in this State in which the wills have been sustained, and which are far more suggestive of testamentary incapacity by reason of drunkenness of the testators! than the one under consideration.

I will only cite the leading case of Peck v. Carey, 27 N. Y. 9, and the recent decision in the Matter of William A. Reed, 2 Connolly, 403.

The fact that Johnson had an epileptic fit does not raise a presumption of disability after he had recovered from the attack. ■Contestants claim that it occurred on the morning of the day the will was signed. If so, I am satisfied from the evidence that it did not affect his capacity in the afternoon. The opinion expressed by Dr. Lines, who was called as an expert, but who never had seen Johnson, and that of Hollings, the subscribing witness1, that the testator was incompetent to make a will, are ■outweighed by others, who proved acts and words that showed his capacity.

Nor is the allegation of undue influence sustained by the proof. On the morning of the day on which he signed the paper Johnson sent for Mr. Drake, not once, but twice, and, after his arrival in response to the second call, he stated to Mr. Drake his wishes in respect to the disposition of the property, and asked that a deed should be prepared by which his estate should go to his sister. After discussion he acquieced in the suggestion that a will be also prepared. Late in the afternoon Mr. Drake returned with the papers. Both were read to Johnson, who stated them to be in accordance with his wishes. On the same occasion a reciprocal will and a reciprocal deed were executed by his sister to him.

Certain previous declarations are shown to have been made by Johnson that his estate was. to go to his father. If he had executed a will containing that provision, it was his right, even capriciously, to revoke it. But his. declarations never took the form of a will or other legal paper. They'probably expressed his feelings at. the time they were made, but- had no further significance. There is abundant proof of other declarations by him showing indifference, if not hostile feelings, for his father. He stated that his father had committed a criminal assault on his sister in her childhood. Such an act would have furnished a reasonable motive for the father’s disinheritance, as would the belief of the testator in the statement he had made, and this irrespective of its falsity, provided that such belief was not an irrational one or the result of an insane delusion.. Ho evidence has been presented controverting the statement, or showing that it was the product, of unreason or of such a delusion.

On the question of undue influence exercised on a drunkard in the procurement, of a will, the rule laid down in Gardner v. Gardner, 22 Wend. 526, is still the law. It was held there that “the act of a party addicted to intemperance, in disposing of his property, will not be invalidated on the ground of undue influence exercised over him by the inmates of his family, where the influence arises from kind offices springing from attachment or affection, and that, to vitiate the act the influence must be shown to have arisen from threats, force or coercion destroying free agency, and the boon to have been obtained by such coercion or by importunity that could not be resisted producing compliance for the sake of peace.” In Williams’ Will, 19 N. Y Supp. 778, 46 St. Rep. 791, the General Term in the third department held that the fact that the will disinherited kindred was not alone evidence of undue influence, nor the fact that the memorandum for the will was prepared by the person who was to be largely benefited thereunder, and who was active in procuring its execution. Hor was the fact, that the will was not in accordance with the testator’s previously expressed intentions, although it may have an important bearing in connection with other facts; but, without such facts of a pertinent and forcible character, a change in purpose in making a testamentary disposition would not invalidate the will.

Much of the testimony adduced on both sides on the trial refers to matters more or less remote from the day of the execution of the will, and was of such a character as to justify the suspicion that the question of Johnson’s mental soundness on that day was not free from doubt, but it did disprove the statements of other witnesses showing that at the time of the execution of the will testator was of sound and disposing mind. The conveyances and reconveyances and the mortgaging of the property, the acceptance by Johnson of eight dollars a week—less than half the income of his share of the property—and afterwards a pittance of thirty cents a day out of the income when Mrs. Reilly had, under such anomalous circumstances, become possessed of the legal title to the real estate, the continuance without protest for years after he had attained majority of a guardianship begun when he was a child, and other facts proven, show a weakness of mind, but are not inconsistent with testamentary capacity. They suggest a suspicion of undue influence. They do not prove its exercise and under all the circumstances of the case I do not believe it was exercised. A few hours after the testator signed the paper he spoke with satisfaction of the disposition he had made of his estate. Subsequently he expressed the same satisfaction. Later he asked if the will had been recorded, supposing that such an act was proper and necessary to give it effect. He lived for more than a year after its execution, during which time no expression of a desire to change it is shown. I am satisfied that the paper expressed the deliberately formed wishes of a capable testator.

It may be admitted to probata


text:
    In the Matter of McLaren's Estate.

      (Surrogate’s Court, New York County,

      Filed, January, 1894.)
    1. Executors, etc.—Commissions.
    In case of an equitable conversion of realty, where the estate is held by the executors unconverted, they are not entitled to commissions' on the principal.
    2. Same.
    The value of the real estate, in such ease, may be considered in determining the commissions to which they are entitled on the income.

      Proceedings for the judicial settlement of the accounts of the executors.
    Estes, Barnard & Tiffany, for executors; P. H. Vernon, for legatees.
   Fitzgerald, S.

—An equitable conversion of the realty has been effected by the power of sale given by the will to the executors. The estate, however, is held by the executors as such, and the real estate being, as yet, unconverted, they are not entitled to commissions on the principal thereof. The value of the real estate, however, can be taken into consideration in ascertaining whether the value of the estate of decedent was $100,000 in excess of debts, for the purpose of determining the commissions to which the executors are entitled on income. The decree should provide for the retention of the estate by the executors, upon the trust in the will. There is insufficient evidence before the court upon which to decide the question as to the value of the real estate unsold, and I have referred the matter.

Ordered accordingly.


author: Coffin, S.

text:
    In the Matter of Millward’s Estate.

      (Surrogate’s Court, Westchester County,

      Filed, January, 1894.)
    1. Tax—Transfer—Appraisement.
    In making appraisement of estate subject to the transfer tax, debts, funeral, and administration expenses are not to be deducted.
    2. Same—Surrogate’s valuation.
    The surrogate, in fixing such value, may deduct the debts owing by decedent from the value of the estate.
    3. Same—Indeterminate bequest.
    A bequest to the widow for life or until remarriage, cannot be appraised until the termination of such estate.

      Appeal by the executor from the decree fixing the transfer tax.
    George B. Bonney, for appellants; D. Verplank, assistant district attorney, for respondents.
   Coffin, S.

—The appraiser was entirely right in declining to hear evidence in regard to the debts of the deceased, the funeral expenses, and expenses of administration. The Court of Appeals held in Re Swift, 137 N. Y. 77-87, 50 St. Rep. 81, which arose under the act of 1887, that “manifestly, under the law", that which is to be reported by the appraiser for the purpose of the tax is the value of the interest passing to the legatee under the will, without any deduction for any purpose.” This supports the view taken on the subject by this court in Be Ludlow, 4 Misc. Rep. 594, under the act of 1892. The two actions on this point are substantially alike. This court, however, is asked to deduct the tax on the sum of the debts, funeral expenses, commissions of the executors, and the expenses, aggregating about $26,700, exclusive of commissions, which were not estimated, but inclusive of a claim of a physician for $2,629, now alleged to be in dispute, and also the sum of $2,500 as the estimated expenses of administration. The amount in value of the estate or property to be taxed should be fixed with mathematical certainty, and not by mere estimate or approximation. This is easily done at once on general and specific legacies, but on those embraced in a residuary clause such amount subject to the tax, if any, cannot be fixed until the accounting shall have been had, if we are allowed to deduct for debts, funeral expenses, and expenses of administration, for the physician’s bill is stated to be in dispute; and hence, how much it may be reduced or affected by the result, and the cost of litigation, if any, or how it may affect the estimated expenses of administration, cannot now be known. Whether any deduction, such as is sought here, can even then be made, is involved in such doubt,. The value of the properly or estate to be appraised is defined by the twenty-second section of the act of 1892 to he the property or estate' of the testator passing or transferred, and not as the property or interest therein passing or transferred to individual legatees, etc. Hence the appraiser must make his report of the whole value of each legacy or distributive share at the point of transfer, without making any deduction whatever; and the surrogate must then fix the tax upon the value of the “estate” so reported which each legatee is to pay, and give notice, to each legatee. The legatees, “if dissatisfied wdth the appraisement or assessment- and determination of tax, may appeal therefrom to. the surrogate wthin sixty days from the fixing, assessing and determination of tax as herein provided, upon filing in the office of the surrogate a written notice of appeal, which shall state the ground upon which the appeal is taken.” If it turn out on the appeal that no error was made in the appraiser’s valuation, or in the fixing, assessing, or determination of the tax, then it would seem that the appeal would fail. It- cannot be discovered that the act anywhere expressly authorizes the surrogate to deduct from the appraised value any debts, funeral expenses, commissions of executors, or expenses of administration; and it is, therefore, fairly questionable whether the legatees do not take cum onerc, as the tax is not put upon what the legatees do not get, but upon the value of the estate at the point or period of the transfer, which is the date of the death of the testator. It is believed that courts should seek for a solution of this doubt in favor of legatees in other provisions of the act, that unjust results in some cases (insolvent estates, for instance) may be avoided. Accordingly, we find in section 6 that if any debts shall be proven against the estate of the decedent after the payment of a legacy or distributive share from which the tax has been deducted or paid, and the person to whom the legacy has been paid shall be required to refund a pro rata share, the executor, etc., shall refund to him an equitable proportion of the tax. While this is not the case, it may fairly be inferred that the legislative intention was that debts owing by decedent should be deducted from the value of the estate so left by him. In general, this would affect the residuum in testamentary cases. Again, section 10 provides that the surrogate “shall have jurisdiction to hear and determine all questions arising under the provisions of this act, and to do any act in relation thereto authorized by law to be done by a surrogate in other matters or proceedings coming within his jurisdiction.” This is a question so arising, and he may, in an accounting proceeding, allow debts admitted or established and paid to be credited and deducted from the corf us of the estate, or, if not paid, to direct their payment by the decree; and, of course, has jurisdiction to allow commissions, funeral expenses, and expenses of administration, hut has, in general, no power to hear and determine a disputed claim. It seems, therefore, that he may, at the proper time, allow the several items in question when ascertained. In this case, however, as they are not known, they must abide the accounting as above stated.

But there is another ground, not stated in the notice of appeal, which renders the appraisal and fixing of the tax at present impossible. AYhere an estate for life is given, with remainder over, it is an easy matter for the superintendent of insurance to fix the value of the life estate. But here the widow is given the use of the whole for life, and, in case of her remarriage, then the use of one-half only. AYhile we have an established method for ascertaining the value of a life estate of a widow, based upon an arbitrary rule as to probable time of death, there is lacking any such rule to enable us to approximate the period when, if at all, she may remarry. That defies all calculations. Hence the value of her estate, or of the remainder, cannot now he ascertained for the purpose of the assessment of the tax. That cannot he done until her death or marriage. The decree is therefore set aside and vacated.