author: The Ordinary.

text:
    Fannie E. Lacey et al., appellants, v. Harriet N. Dobbs, respondent.
    [Filed November 17th, 1900.]
    1. The requirement of the statute, that a will shall-be signed in the presence of witnesses, is satisfied by proof that testatrix having declared or assented to the declaration, that a paper writing in dispute was her will, wrote thereon, under circumstances that required the inference that what she wrote was her name as it appears at the bottom thereof, in the presence of witnesses, who, from their situation, could and did see her write, although they say they did not at the time see what she wrote.

      2. When persons, who have been called and attend for the purpose of witnessing the execution of a will of testatrix, write their names upon a paper writing which has been duly declared to be her will in their presence, with intent to be witnesses thereto, and testatrix immediately afterward, in their presence, writes her name thereon at the bottom, and the whole transaction was continuous and uninterrupted, from which none of them withdrew his presence or relaxed his attention to the matter in hand, viz., the execution of a will by testatrix, the requirements of the statute in that respect are substantially complied with.
    ' On appeal from a decree of the Essex county orphans court, affirming the decree of the surrogate admitting to probate the will of Mary Ann Caldwell.

      Mr. Adclison Ely, with whom was Mr. IV. II. II. Ely (of the New York bar), for the appellants.

      Mr. Harry F. Barrett and Mr. Alexander Grand, for the respondent.
   The Ordinary.

This appeal was heard before the late ordinary, upon the evidence which was before the orphans court, and the evidence of one of the subscribing witnesses who had not been called in that court, which was taken before the ordinary himself. He held the matter under advisement and had not decided it at the time of his lamented death. It has been reheard by me upon the same evidence.

On the part of appellants, the sole contention is that it was erroneous to’ admit to probate the will in question, upon the ground that the proofs showed that it was not executed in the manner required by law.

The facts upon which the decision must be made are the following: Mary Ann Caldwell, the deceased, had lived in the city of Newark for many years, in the same house with a sister who died therein in the early morning of March 25th, 1897. In the evening of that day, deceased, being then ill of the disease of which she died a few days after, requested one Runkle, who was unskilled in the drafting or -superintending the execution of wills, to draw a will for her. It would seem that deceased furnished him, or caused him to be furnished, with a will to be used as a form. He proceeded to draw a will, written on one side of a sheet of paper. It used apt language to dispose of the whole estate of deceased and to appoint an executor. It then proceeded as follows:

“Written my hand seal, at Newark, the twenty-fifth day of March, 1897.
“Signed, sealed and declared by the testator to be her last will and testament in our presence, who in her presence and of each other have here to set our hands as witnesses to the will aforesaid.”

When the writing was completed, Eunkle called in two women who were in the house and well known to deceased, and told them in her presence- that she was going to make a will and asked them to be witnesses to it. Deceased asked one of them to be a witness, and acquiesced in Runlde’s request to both. Eunkle then signed the will at one side of the bottom of the sheet; one of the women then signed next upon the right, and the third signed still further on the right. Deceased then took the paper writing in her hand and said it was “her turn.” She expressly requested the witnesses to remember the date iii case there should be any trouble. She read, or appeared to read, the paper over, and declared it all right. Then, at the same table where the others had written, or on a book given her for that purpose, she wrote something upon the paper.

It is conceded that the evidence clearly shows that the witnesses signed their names before the deceased wrote upon the paper, but it was all done on one occasion. Ho one had left the room until the transaction was completed, and no other business intervened.

The two female witnesses both declared that while present in the room with deceased, in positions where they saw her write upon the paper, yet that they did not in fact see what she wrote. Eunkle fails to remember whether he did see or not what she wrote. He says, however, that the whole of the paper is in his handwriting except the words “Mary Ann Caldwell” at the bottom of it, and the signatures of the two female witnesses, and except, perhaps, the words “Mary Ann Caldwell” in its first line.

The next morning a seal was affixed to the paper by Runkle or the deceased in the presence of the same witnesses, but what occurred then is of no consequence, because there is no pretence that it, standing alone, could have established the execution of a will. Upon these facts it is contended that the execution of this paper writing appears not to conform to the statutory'requirements declared to be necessary to establish a testamentary disposition.

Whether or not this writing is a testamentary disposition by Mary Ann Caldwell must depend upon its execution having been shown to be in conformity with the requirements of our Wills act, which, so far as they affect the question, are expressed in the following language, viz.:

“All wills and testaments * * * shall be in writing and shall be signed by the testator * * * and such writing declared to be his last will, in presence of two witnesses, present at the same time, who shall subscribe their names thereto as witnesses in the presence of the testator.”

The writing is in the form of a will and proper to be a testamentary disposition.

It is first contended that the proofs did not make it appear that Mary Ann Caldwell signed it. This contention is based upon the fact that the two female witnesses, while agreeing that Mary Ann Caldwell wrote something upon the paper, yet say that they did not see what she wrote, and the third witness says that he cannot remember whether or not he saw what she wrote.

But, in my judgment, the proofs leave it beyond doubt that Mary Ann Caldwell did, in fact, write her name where it appears at the end of the paper. The admission of Runkle is that the whole paper is in his handwriting except the words “Mary Ann Caldwell” at its end, and the names of the two female witnesses, and except, perhaps, the words “Mary Ann Caldwell” in the first line, which, he says, resembles her signature at the end of the paper, a fact which inspection verifies. All of the witnesses agree that after they had signed the paper, Mary Ann Caldwell took it, read it, or appeared to read it over, and declared it to be all right. She also declared, as she took the paper after they had signed, that it was “her turn.” All again agree that she wrote something upon the paper. The inference from this evidence is that what she wrote was the name Mary Ann Caldwell, which now appears there.

It is next contended that although the proofs may require the inference that she did in fact sign this paper, and that in the presence of the three persons who signed as witnesses, yet that they were not, within the meaning of our statute, “witnesses” capable of authenticating hér signature. This contention is put on the ground that at least two of them, while witnessing her act of writing her name, did not, in fact, see that it was her name that she wrote. It is argued that a witness must see and be able to identify the sigmm of the person executing the will by having actually seen it made.

To yield to this contention would, I think, add to the statute another requirement. Its language simply requires an actual signature in the presence of witnesses. If, therefore, the proof satisfies the judgment that an actual signature was made, and that it was made in the presence of the witnesses, the measure of its requirements in this respect is fully shown. In Den v. Mitton, 7 Halst. 81, the supreme court had under consideration a charge to a jury which declared that the requirements of the then statute of wills that the signing should be “in the presence of the witnesses,” was satisfied by proof that the subscribing witnesses were so situated that they could and would naturally see and hear the signing and publication. The charge was approved in that respect, and it is plain from the well-considered opinion of Chief-Justice Ewing, and the cases he cited, that he deemed the matter to be governed by the same rule which had been applied in the English courts with respect to the signatures of witnesses in the presence of the testator. That rule was that such signature was sufficient if made where the testator was able to see the witness sign. Such a rule is still applied in our courts. Combs v. Jolly, 2 Gr. Ch. 625; Ayres v. Ayres, 16 Stew. Eq. 565.

The persons who subscribed as witnesses were, in my judgment, apt and proper witnesses under our statute, notwithstanding they cannot say that they saw the letters which made up the name Mary Ann Caldwell actually formed by her pen when she wrote upon this paper.

It is lastly contended that the execution of this' paper was defective because Runkle and the two women did not subscribe their names thereto as witnesses. The contention is put on the ground that their signatures were made before the signature of Mary Ann Caldwell. It- is insisted that as- they had not then witnessed her signature, their prior signatures were nullities, ineffective to satisfy the requirements of the statute.

While the statute requires that the will shall be signed by the testator and declared by him to be his will, it has been held in this court that a declaration before signature is a compliance with the statute, although the formality prescribed would indicate that it should be made after signature. Errickson v. Field, 3 Stew. Eq. 634; Mundy v. Mundy, 2 McCart. 290. This is put upon the ground that the order of the performance of the acts requisite to the valid execution of a will is immaterial.

But the insistment is that the statute expressly prescribes an order in performing the two acts, viz., (1) the signing by the testator, and (2) the signing by the witnesses, and that the latter cannot effectively sign before they have witnessed the signature of the former.

The question thus presented has never, so far as I can discover, been dealt with in our courts, except in the case of Mundy v. Mundy, ubi supra, in which Chancellor Green pronounced in favor of the immateriality of the order of signature, and declared that if the proof in that case established the signature of one of the witnesses to have been made before that of the testator, the statute was complied with. It is argued that this observation of the learned chancellor was unnecessary to the decision of the case, and that he cited as his authority a decision of a surrogate's court in ISTew York, which has since been discarded and overruled. It is not clear from the opinion whether, the point was necessary to the decision of that case, but a dictum of that eminent jurist carries with it no little weight. A construction of a statute in a particular to which his attention has been specially directed, adopted by him, may well incline us to a similar construction.

In construing the statute of wills, courts should, no doubt, constantly keep in view the legislative intent, which is to protect heirs-at-law and next of kin from fraud and imposition upon their ancestor. Such protection is designed to be afforded by the requirement of certain formalities in the execution of any writing designed to be a testamentary disposition. Formalities thus required must appear to have been observed, and a writing which may be convincingly proved to have been intended to express the testator’s will, will yet be denied probate if the required formalities are not shown to have been observed. But it should also be borne in mind that this legislation is intended not only for the guidance of those learned in the law, but of all persons who desire to express their will while living, as to the disposition of their property after their death. It results that no construction of the act should be adopted which makes necessary a literal, in distinction to a substantial, performance of the required formalities. An example of this has been already alluded to. The act expressly requires the signing, and a declaration that it is testator’s last will. By the collocation of these requirements, it seems to be implied that one should precede the other, yet it is settled in this court that if both formalities are observed, it is entirely indifferent which takes place first.

Turning now to the evidence, we find that the testatrix actually signed in the presence of three witnesses, and that the witnesses actually signed in her presence. The express formalities required are therefore literally complied with. The argument that they could not sign as witnesses, and did not become such until after testatrix signed, does not commend itself to my judgment. They were called and attended for the purpose of witnessing the execution of testatrix’s will; they placed their signatures upon the paper in the execution of that purpose; they actually witnessed testatrix’s signature made immediately after. These things were done as parts of one continued, uninterrupted transaction, from which none of them withdrew his presence or relaxed his attention. In my judgment, the requirements of the statute are thereby substantially complied with.

The conclusion thus reached is not wanting in such support , as is afforded by a similar construction given to statutes closely, resembling our own, by the courts of other states.

Thus in Kentucky the supreme court, in a case like that under consideration, used this language: “Nor can it be material whether the names of the attesting witnesses or that of the testator should have been first subscribed, if, as in this ease, the witnesses had been present when the testator * * * wrote his name, and being called for that purpose, actually witnessed * * * the fact.” Swift v. Wiley, 1 B. Mon. 114; Sechrest v. Edward, 4 Metc. (Ky.) 163.

The court of appeals of Virginia, by Judge Baldwin, declared that the fact that the testatrix signed before or after the subscription of the witnesses was immaterial “where the whole transaction must be regarded as one continuous, uninterrupted act, conducted and completed within a few moments while all concerned in it continued present, and during the unbroken, supervising, attesting attention of the subscribing witnesses.” Rosser v. Franklin, 6 Gratt. 1.

The supreme court of Pennsylvania declared in respect to the execution of a will identical with the execution disclosed by the evidence in this ease, that if the transaction consisted of several parts, all of which occurred at the same moment, and in the same presence, it was not to be pronounced invalid because it did not occur in the orderly succession which the law contemplates. Miller v. McNeill, 35 Pa. St. 217.

The supreme court of Connecticut, upon a similar case, thus declares itself: “But where, as in the present case, witnesses are called to attest the execution of a will, and being informed what the instrument is, subscribe their names thereto as witnesses, and the testator on his part, and in their presence, duly executes the instrument as his will, and all is done at one and the same time and for the purpose of perfecting the instrument as a will, we cannot say that it is not legally executed merely because the names of the witnesses were subscribed before that of the testator.” O’Brien v. Galagher, 25 Conn. 229.

It is not to be denied that the courts of other states and of England, have expressed contrary views.

The New York case cited by Chancellor Green was Vaughn v. Burford, 3 Bradf. 78. The court of appeals of that state, in the later case of Jackson v. Jackson, 39 N. Y. 153, expressly decided that under their statute the signature of the testator must precede that of the subscribing witnesses to make a valid execution. That decision was mentioned as the law of blew York in Sisters of Charity v. Kelly, 67 N. Y. 409. The surrogate’s decision cited by Chancellor Green has therefore been overruled.

The ecclesiastical courts of England have given a similar construction to the act. 1 Vict. c. 26 § 9; 1 Jarm. Wills (B. & T. ed.) 25J, and cases cited in the note.

The courts of Worth Carolina, Georgia, Indiana and Texas have put upon their respective statutes a like construction. In re Cox, 1 Jones 321; Ragland v. Huntingdon, 1 Ired. 561; Duffie v. Corridon, 40 Ga. 122; Brooks v. Woodson, 87 Ga. 379; Fowler v. Stagner, 55 Tex. 393.

It is to be remarked that these adverse decisions construe statutes which are different from ours. Thus the act 1 Viet. requires that

“such witnesses [that is, those in whose presence the signature of testator has been made or acknowledged] shall attest and subscribe the will in the presence of the testator.”

The statute of blew York, construed in the ease above referred to, reads thus: “There shall be at least two attesting witnesses each of whom shall sign his name as a witness.” The statutes of the other states generally require attesting witnesses. To attest not only bears the meaning to witness, but also to bear witness to, and it may be argued that an attesting witness is something more than a subscribing witness, and that the subscription of an attesting witness bears witness to the act of the testator in a different sense from that which the subscription of the subscribing; witness would do. Whether the difference of language makes a substantial distinction between these statutes and our own, when the force and effect given by our courts to the signatures of witnesses is considered, may perhaps be questioned. For it is settled in this state that when an attestation clause, setting forth a full compliance with the requirements of our statute, is signed by the witnesses, it becomes prima facie evidence of due execution, and raises a presumption which must be overcome by proof. If the subscribing witnesses are dead, and satisfactory proof of their handwriting is admitted, that presumption is raised, and it will be effective unless overcome. Allaire v. Allaire, 8 Vr. 312; S. C., 10 Vr. 115; Patton v. Hope, 10 Stew. Eq. 522. The effect thus given-to the signatures of witnesses when preceded by a proper attestation clause, may perhaps be deemed to make them not only subscribing but attesting witnesses.

Without reference, therefore, to the differing language of the respective statutes, I find myself unable to concur in the adverse decisions, and I do concur in and approve the decisions above cited, which construe such statutes as complied with, although the witnesses signed before the testator, if the acts were done during an uninterrupted transaction, as in this case.

The will was properly admitted to probate, and the decree appealed from must be affirmed.


source: Caselaw Access Project

author: The Ordihaky.

license: Public Domain

text:
    Charles King, appellant, v. Frederick Foerster, respondent. Jacob Bollinger, appellant, v. Frederick Foerster, respondent.
    [Filed November 26th, 1900.]
    1. The eleventh exception was intended to charge King with a joint liability with Bollinger for the whole account.'—Held, that assuming that a decree to that effect would avail exceptant, the refusal to make such a decree was not erroneous,, it appearing by uncontradicted proof that King received no part of the estate.

      2. The fourth ancl fifth exceptions charge both trustees with dereliction of duty in selling a part of testator’s real estate below its fair value.— Held, that the conclusion of the orphans court,that the sale was at a fair price and properly made, was amply sustained by the proofs.
    3. Held, further, that as King was properly acquitted of any dereliction of duty as trustee, it was erroneous to decree that he should pay counsel fees to the proctor and counsel of exceptant.
    4. Held, further, that although Bollinger succeeded in the orphans court upon all the exceptions which were contested, yet, as he conceded the correctness of the other exceptions and thereby his account was properly surcharged, it was not erroneous to decree that he should pay counsel fees to the proctor and counsel of exceptant, but such counsel fees should not exceed reasonable compensation for the services rendered, and that under the circumstances exhibited in this case, $400 was an excessive allowance, which should be reduced to $150.
    On appeal from the orphans court of Hudson county.
    An account was filed in the surrogate’s office by two executors and trustees, and therein one of them (Bollinger) acknowledged that he had received and managed the whole of the trust fund and rendered a specific account of receipts and expenditures, and the other of them (King) disclaimed and denied the receipt by him of any of the trust fund. Exceptions thereto were filed by a cestui que trust. On the hearing before the orphans court, accountants admitted that all the exceptions except the fourth, fifth and eleventh were well taken, and the contest was confined to those exceptions.

      Mr. Samuel A. Besson, for King.

      Mr. Joseph S. Parry, for Bollinger.

      Mr. William E. Shinner, for the respondent.
   The Ordihaky.

By the will of Frederick Foerster, admitted to prohate in Hudson county on May 27th, 1892, all the estate of the testator was given and devised to Jacob Bollinger and Charles King upon certain trusts.

In September or October, 1897, an account was filed with the surrogate of Hudson county, which commences as follows:

“The account of Jacob Bollinger and Charles King, executors and trustees, under the last will and testament of Frederick Foerster, deceased, late of the county of Hudson, as well of and' for the estate which has come to their hands, to be administered as for their payments and disbursements out of the same.”

To this followed the following statement:

“Jacob Bollinger charges that all moneys were received by him for said estate and all payments made by him, and the accounting heretofore made was made by him, and he therefore makes the following account of said estate; this accountant Jacob Bollinger charges himself,” &c.

Then followed a regular account of debits and credits, which was sworn to by Bollinger. Then the following statement appeared :

“As to the account of Charles King, as executor and trustee, under the aforesaid will of Frederick Foerster, deceased, said Charles King says that he never received any of the moneys or assets of said estate, and took no active part in conducting and managing thereof, but left the same to the aforesaid Jacob Bollinger and entrusted the entire management of said estate to said Jacob Bollinger.”

and this statement was sworn to by King.

On November 1st, 1897, .Frederick Foerster, who is interested as cestui que trust, filed twelve exceptions to the account.

The matter coming on to be heard before the orphans court, counsel for Bollinger and King acknowledged that all the exceptions except the fourth, fifth and eleventh were well taken, and not contested. The stenographer’s notes, which indicate that the acknowledgment extended only to the fourth and fifth exceptions, are supplemented by the opinion of the court, which clearly shows that the eleventh exception was also contested.

From the decree made thereon, Bollinger and King have appealed, and the appeals have been argued together. It will be necessary,- however, to consider the appeals separately.

King appealed from so much of the decree as required him (together with Bollinger) to pay $400 counsel fee to the proctor and counsel of exceptant.

Respondent, in his answer to King’s petition of appeal, under the provisions of rule 2, specified items in the account as to which he claimed the decree in King’s favor was erroneous, and claimed a modification of the account as to them, as if he had brought a cross appeal. Although his answer states his claim to be asserted by way of a cross appeal, it is not deemed to prevent him from claiming the benefit of the rule, the specifications of the answer being sufficient for that purpose.

So far as King is concerned,, the specifications of respondent’s answer may be considered under two heads: (1) that it was errqneous not to charge King jointly with Bollinger for all the trust estate, and (2) that King should be so charged for the loss to the estate resulting from a sale of a house and lot included in the trust, at a price claimed to be much below its true value.

It will be observed that the account was not a joint account; but if it had been, a decree adjudging a balance to be due thereon would not be, per se, conclusive evidence of the joint liability of the trustees therefor. Weyman v. Thompson, 7 Dick. Ch. Rep. 263. On the contrary, it was a separate account of each trustee, and Bollinger admitted the receipt of all the estate and King denied the receipt of any part of it. The evidence before the court below established the truth of these claims of the trustees beyond dispute. It did appear that King joined with Bollinger in the deed conveying the house and lot in question, but it also appeared that the whole proceeds of the sale were received by Bollinger. The liability of King, therefore, was not indicated by such evidence.

The evidence was deemed by the court below not to indicate that there was any liability on the part of King for a failure of duty resulting in loss to the estate occasioned by Bollinger’s dereliction in respect to moneys received by him.

With these conclusions I entirely concur.

As to the claim that the account should be surcharged with a sum which would represent the excess of the real value of the house and lot sold, over and above the sum received by Bollinger, it is sufficient to say that I also concur in the view of the orphans court that the sale was at a fair price and properly made.

The complaint of respondent in respect to King cannot prevail.

But the appeal of King against the decree requiring him to pay the proctor and counsel of respondent is, in my judgment, well taken. The court had properly adjudged him to be free from any liability whatever for any acts of commission or omission with respect to the trust. Under such circumstances, assuming the power of the orphans court to decree the payment of counsel fees, I fail to discover any reason to charge him with such payment.

Upon King’s appeal the decree against him. so far as appealed from, must be reversed, with costs of this court.

Bollinger appeals from the same decree in several particulars.

He first insists that certain allowances which were claimed in his account were disallowed by the orphans court. But these were the subjects of some of the exceptions, which, on the hearing, were admitted to be well taken. The decree, in that respect, was made with the consent of accountant in open court, and no appeal will lie therefrom.

He next insists that King should have been decreed to be jointly liable with him. This claim is disposed of by what has been said upon the similar claim'made by respondent.

. He lastly insists that the decree is erroneous in directing him to pay a counsel fee of $400, and claims that if he is liable to pay a fee to respondent’s counsel, the amount allowed is grossly excessive.

No contest has been made as to the power of the orphans court to decree the payment of counsel fees by the accountants themselves. Such power has been exercised and has been approved by this court, Brokaw v. Brokaw, 14 Stew. Eq. 304. But a decree for the payment of counsel fees may be reviewed on appeal to this court. Brokaw v. Brokaw, ubi supra; Burr v. Burr, 8 Dick. Ch. Rep. 627; Fluke v. Lake, 9 Dick. Ch. Rep. 638.

Although respondent failed to maintain a single one of the contested exceptions, he did succeed in charging upon Bollinger amounts which were additional to those admitted in his account. These amounts were conceded by Bollinger’s counsel in the court below to have been properly chargeable to him. The case presented, then, was that of a trustee who failed to make a complete account and whose account was surcharged upon the exception of an interested party. I perceive no ground to impute to this trustee corrupt or fraudulent intent; his dereliction seems rather the result of ignorance of his duties. But as this dereliction occasioned loss to the trust fund, and was established on his own admission, a decree allowing respondent a counsel fee to be paid by the derelict trustee would seem proper. The allowance of such a fee and its amount is, no doubt, to be determined in the discretion of the court. That discretion should not be disturbed by a reversal, unless it manifestly appears to have been erroneously exercised.

When such discretion is applied in the allowance of counsel fees, the amount should be fixed as a compensation for such labor as counsel has been compelled 'to perform for his client. It is not to be treated as a penalty imposed upon the delinquent trustee and graduated by the court’s sense of his misconduct, but only as an imposition upon the trustee of the expense which the cestui que trust has reasonably been required to pay to compel the trustee to a proper account. Any award exceeding reasonable compensation for such services of counsel must be held to be excessive.

I feel compelled to conclude that the amount of $400 imposed upon Bollinger far exceeds any reasonable compensation, and is exorbitant. The labor of preparing to prove the exceptions which were admitted could not possibly have been great. The time expended in trying the exceptions, in which respondent was unsuccessful, was short, and would have been much shorter , but for the introduction of much repetitious and irrelevant testimony which has swollen the. record. For the whole services I deem $150 tó be ample compensation, and the allowance above that sum is excéssive.

Respondent, in his answer to Bollinger’s appeal, makes, under rule 2, substantially the same claims as those set up in his answer to King’s appeal-. For the reasons above given I think the account in this respect was properly passed in '¿he court below.

It results that, upon Bollinger’s appeal, the decree must be modified by reducing the amount allowed for counsel fees from $400 to $150, and as so modified, it must be affirmed. As Bollinger succeeds upon his appeal in securing a substantial modification of the decree, I think he should have his costs in this court.


text:
    George B. Swain, administrator, respondent, v. Albridge C. Smith, appellant.
    [Filed November 26th, 1900.]
    If power was conferred upon an orphans court by the provisions of section 151 of the Orphans Oourt act of 1874 (Gen. Btat. p. 2891), to direct the distribution of the estate of a testator when its judicial action involved the construction of the testator’s will, the grant of power was not general, but limited to cases where the executor or the administrator cum testamento annemo had filed an account exhibiting the balance of the estate, and the account had been duly allowed by its decree.
    On appeal from a decree of the Warren county orphans court.

      Mr. Albridge G. Smith, pro se.

      Mr. L. De Witt Taylor, for the respondent.
   The Ordinary.

This appeal was argued before the late ordinary, and not-having been decided by him, has been reargued before me.

The long delay that has occurred causes much regret that I am unable to consider and decide the question which respondent has evidently supposed was properly presented by his application to the orphans court. But I cannot discover the least ground to justify that application, or to support the decree made thereupon. In my judgment the orphans court had no jurisdiction whatever to make such a decree.

Without considering various irregularities and defects appearing in the proceedings, I will briefly state the grounds upon which I have reached the conclusion above expressed.

The petition of respondent asked the orphans court to construe portions of the will of George Wildrick, deceased, and to direct the petitioner to whom to pay a legacy given thereby. It grounded the right to such judicial action upon the facts that petitioner was the administrator of Abraham Wildrick, deceased, who was one of the two executors of said George Wild-rick, deceased, and that he was the owner of some land upon which the legacy was charged, but his petition disclosed that -neither Abraham Wildrick nor Isaac Wildrick, his co-executor (who had also died), had ever stated or settled an account of the estate of George Wildrick, deceased, and none had been .allowed by the decree of the orphans court.

If the orphans court had power on August 5th, 1892, when this decree was made, to direct the disposition of testator’s •estate, when such judicial action involved the construction of his will, it was acquired by the provisions of section 151 of the •Orphans Court act of 1874. Gen. Stat. p. 2891. Whether the provisions of that section were within legislative competency 'has been questioned in the court of errors. Adams v. Adams, 1 Dick. Ch. Rep. 298.

Assuming that the act in that respect had constitutional validity, it is evident, from a perusal of the section in question, that the grant of power was not general, but limited. There can .be no pretence that it permitted such a decree to be made in any other case or circumstances than those expressly set forth in the section. The cases in which the power is designed to be •conferred are those in which an executor or an administrator .cum, testamento annexo has filed an account exhibiting the bal.ance of the estate in his hands, and the account has been duly .allowed by the decree of the orphans court.

Respondent, by the averments of his petition, has shown that he was not within either case. He was not the executor of George Wildrick, deceased. He was not an administrator of said estate with his will annexed. Ho account of the estate of deceased had been stated by the executors, or allowed by the decree of the orphans court.

It necessarily follows that there was no case made justifying the orphans court in making the decree in question.

The decree must therefore be reversed.


author: Magie, Okdinaky.

text:
    In the matter of the estate of William Hedges Baker, deceased.
    [Filed January 22d, 1901.]
    1. Decrees of an orphans court allowing trustees’ accounts which exhibit payments by them out of the trust fund, if of the nature of final accounts, can only be opened by that court on satisfactory proof of fraud or mistake.
    2. Such decrees, if not final in their character, are to be taken as prima faoie correct, and are not to be opened unless error in the proceedings clearly appears.
    3. Where the judicial action of the orphans court in settling and allowing the accounts of trustees involves the question of their duty under a will creating the trust, that court may construe the will on the subject of such duty.
    4. When an orphans court has made its construction of a will in such respect the basis of a decree allowing the trustees’ account, the decree may not be opened by that court, because subsequent judges have a variant view as to the true construction of the will.
    5. A will created a trust, and directed the trustees to collect certain mine rents and “after deducting for taxes, repairs, insurance and other necessary expenses, pay over the residue to my said wife, Clarissa, for her comfortable maintenance, and that of my minor children, if necessary for that purpose, and the balance of said residue to my said three sons, share and share alike,” &c.—Meld, that the will contemplated and provided for payments to testator’s sons from time to time out of the “balance of the residue” of the mine rents received, and did not impose on the trastees any duty to retain and accumulate the mine rents to provide for the widow’s maintenance, in the contingency that the mine rents would cease to be collectible.

      Mr. Albridge C. Smith, for the appellant.

      Mr. Willard C. Cutler, for the respondent.
   Magie, Okdinaky.

In order to make clear the questions presented in this cause the following facts, which appear therein, should, be stated:

By the will of William Hedges Baker, of Morris county, dated March 31st, 1873, there were devised to his executors and the survivor and survivors of them, and the heirs and assigns of the survivor, seven tracts of land, upon certain trusts, one of which trusts was expressed as follows:

“3d. To collect the mine rents due to me or my estate from the lessees now in occupation of said mine premises, part of the homestead and the mine lot above mentioned; to renew the leases thereon if necessary, or execute new leases upon such terms and for such times, not exceeding fifteen years, as they may think best; and after deducting for taxes, repairs and insurance and other necessary expenses, pay over the residue to my said wife, Olarissa, for her comfortable maintenance and that of our minor children, if necessary for that purpose, and the balance of said residue to my said three sons, share and share alike, using their discretion whether to pay over the whole of the rent so coming due to any minor, to his guardian, or to pay the same for his education or support, or to invest it for his benefit after he shall have become of age.”

Edmund D. Halsey and William H. Baker (a son of the testator) were appointed executors, and took upon themselves the burden of the trusts created by the will. Of three sons of testator, viz., William H., Andrew K. and David, living at his death, one (David) died afterwards, without issue, and it is conceded that the surviving sons took such benefit in the trusts as the deceased son would have taken. Edmund D. Halsey afterwards died, and William H. Baker is now the sole surviving executor and trustee under said will.

Appeals have been taken from two decrees made in the Morris county orphans court.

The first decree appealed from was made December 1st, 1899. Thereby three several accounts which had been allowed by previous decrees of that court were opened, on the ground of mistake as to the distribution of the mine rents by the accountants, to the end that such mistake should be corrected.

The first of the decrees thus opened was made July 5th, 1892, and allowed an account stated by William H. Baker and Edmund D. Halsey, trustees of William Hedges Baker, deceased. It appears thereby that the account had been duly audited and stated, and on citations to parties interested, Clarissa Baker, the widow of testator, had filed two exceptions thereto. She excepted, first, on the ground that the amount paid to her by the trustees out of the mine rents was insufficient for her comfortable maintenance, and next upon the ground that the residue of such mine rents, after the payments to her, had been paid to William H. Baker and Andrew K. Baker, while they ought to have been held by them for her comfortable maintenance, in the event of the mine producing no rent. The decree recited that it was made upon consent of the exceptant’s proctor and of the executors and of Andrew K. Baker, in open court, and its terms were as follows:

“It is ordered and decreed that the said exceptions be considered waived, and that the executors hereafter pay to Clarissa Baker, widow of said William Hedges Baker, deceased, out of the mine rents to be received by them, the sum of $150 per month for the support, in addition to keeping the buildings on the homestead in necessary repair, so long as they shall continue to receive a royalty from the working of the mine on said homestead; and in case of the mine ceasing to pay royalty or rent, said William H. Baker and Andrew K. Baker shall pay to the said Clarissa Baker the sum of $100 per month for her said support which arrangement is to continue during the lifetime of the said Clarissa Baker, and it is further ordered, adjudged and decreed that the said account be allowed in all things as reported, and that the same be entered of record.”

The second of the decrees thus opened was made August 6th, 1894, and allowed another account of Edmund D. Halsey and William H. Baker, executors and trustees of William Hedges Baker, deceased, no exceptions being made to its allowance.

The third of the decrees thus opened was made March 1st, 1897, and allowed an account of William H. Baker, surviving executor and trustee of William Hedges Baker, deceased, no exceptions having been made to its allowance.

The second decree appealed from was made April 3d, 1900, upon the following proceedings in the orphans court: In April, 1899, Clarissa Baker, the widow of William Hedges Baker, deceased, filed her petition in that court, setting out the will of said deceased; its probate by Edmund D. Halsey and William H. Baker, the executors named therein; the death of Halsey, and petitioner’s application to William H. Baker, the surviving executor and trustee under the will, for the payment of "money to her under the decree of said court of July 5th, 1892, and his refusal so to do; her petition to the orphans court thereupon to require him, as surviving executor and on his own account, together with Andrew, to account for and pay her the sums of money due to her in pursuance of said decree of the orphans court; and that the orphans court, upon her said petition, made the order prayed for, which was afterwards reversed in this court. The petition then proceeded to aver that she had applied to said William H. Baker, as surviving executor, and requested him to provide her with maintenance in accordance with the directions of the will, and to account for the royalties and rents received from said mine, which he refused to do. There was a prayer that said William H. Baker should be required to file an account for the moneys received for said royalties, and to pay her what money might be due her, or necessary for her support and maintenance.

A citation under said last-mentioned petition having been issued and served upon him, William H. Baker, surviving executor, rendered an account for the rents received from said mine from June 1st, 1888, to Hovember 30th. 1896, and for payments 'claimed to have been made out of the same. It exhibited a balance in hand of $2.13.

Tq this account Clarissa Baker filed exceptions on the same day, and therein claimed that the account should exhibit a balance in hand amounting to $24,694.76, that sum being reached by adding to the admitted balance the sum of $12,342.84 paid to Andrew K. Baker, and $12,349.79 paid to said William H. Baker out of said mine rents, which payments were charged to have been made in violation of the terms of the will of William Hedges Baker, deceased.

The matter thus presented having been adjourned from time to time, Clarissa Baker filed a supplemental petition, including the matters stated in the first petition, and setting up the three decrees of 1892, 1894 and 1897, and praying that the accounts approved by those decrees should be reopened, and the decrees should be set aside for the correction of those accounts, and that it should be decreed that the payments to Andrew K. Baker and William H. Baker were not proper payments under the terms of the will, and that the surviving executor and trustee should be charged in his account with the amounts so paid. Upon this petition a rule to show cause was allowed, and after hearing evidence, the court made a decree sustaining the exceptions of Clarissa Baker to the account, and surcharged the accounting executor with the amount of $24,693.03. The decree further recited that application had been made to the court to determine a proper and reasonable amount to be paid to said Clarissa Baker for her maintenance and support out of said mine rents, and ordered the accountant to pay Clarissa Baker $100 a month for her maintenance and support since the 1st day of April, 1897, such sum being declared by said court to be a reasonable and proper sum to be paid her out of the mine rents for the purpose above stated." The orphans court has not made known, by any opinion, the reasons which induced it to make the decrees "complained of, and I am left to conjecture them from the language of the decrees themselves and the arguments of counsel in their support."

Taking up the decree which was first in point of time, that which opened the three decrees allowing previous accounts of the executors and trustees, 1 find that it recites that it was made on the ground of mistake as to the disbursements of the mine rents received by the trustees, and appearing in such accounts, and its purpose is declared to be the correction of such mistake.

Whether the three accounts, the allowance of which was disturbed after a long lapse of j^ears, were, strictly speaking, mere intermediate reports of the condition of the trust fund and its income, or were, in fact, settlements of a final and decisive character as to what was included in them, is a question of some moment, but not necessary to decide in this cause. The Orphans Court act, which was in force when these three accounts were presented and passed, in its provisions for accounting, contained in sections 96 to 108 (Gen. Stat. p. %377), did not require, in express terms, any annual or periodical account from executors, administrators or trustees, but only from guardians, yet the practice of presenting and procuring the allowance of such accounts was well nigh universal.-

If, however, such intermediate accounts^ when presented and duly allowed, do, in effect, settle finally some portion of the trust, it may be argued that they are settlements of the trustee’s final accounts, although the trust still continues, and new duties will raise the necessity of further accounts. Pomeroy v. Mills, 10 Stew. Eq. 578.

Whether a decree allowing an intermediate account, exhibiting payments by an accounting trustee out of the trust funds to different persons, would conclusively bar a cestui que trust from claiming, in a direct proceeding against the trustee, that certain payments should have been made to him and not to the persons appearing to have received them, it- is not deemed necessary to determine. By the express provisions of section 108 of the Orphans Court act, above referred to, the settlement of final accounts is made conclusive on all the parties thereto, unless a resettlement is applied for upon proof of some fraud or mistake, to the satisfaction of the court.

There is no pretence that any fraud was shown in procuring the three decrees which were opened by the orphans court. The sole ground on which the orphans court was asked to act, and upon which it did act, was that of mistake.

The mistake claimed is said to have arisen (1) in the withdrawal by Clarissa Baker of the exceptions filed by her in 1892, and her consent to the decree of July 5th, 1892, upon the promise of her two sons (William and Andrew) to make payment to her, for her maintenance, of certain specific sums while mine rents should be received, and of certain less sums after mine rents ceased to be received; and (2) in her belief, induced by the circumstances, that the orphans court had power to adjudicate thereon, and to decree that her sons should make such payments to her, and that such decree could be enforced.

The promises of future payments, relied on by her, presented no case of mistake of fact. There was no misunderstanding of existing condition, but an incautious reliance on promises respecting their future conduct. The promises may, perhaps, be enforceable at law, but the mistake of reliance upon them was not a mistake justifying interference with the consent she made thereon.

The mistake as to the jurisdiction of the court and the effect of its decree was a mistake of law, apparently shared in by the parties and the court. It was an error of law, which might possibly be reviewed upon appeal, but not an error correctible by the method adopted in the orphans court. Upon any other view the final decree of an orphans court would possess no conclusive character, but would be open to reversal by any subsequent court which disagreed with the view of the law upon which the decree was based. It follows that if the three accounts in question were of the nature of final accounts and their allowance by decree was conclusive upon the parties, there was no justification for the decree opening them, because neither fraud nor mistake, within the Orphans Court act, was shown.

The general practice of presenting and procuring the allowance of intermediate accounts was recognized in the court of errors in Jackson v. Reynolds, 12 Stew. Eq. 313. It was decided that such an account was to be taken as, prima facie, correct, and not to be corrected or opened, except upon evidence of error, but that when it disclosed an allowance which was clearly erroneous on its face, the error might be corrected, and that such correction might be made in a direct proceeding attacking it for such error. See, also, Griggs v. Shaw, 15 Stew. Eq. 631.

But the error complained of in the three accounts in question is not disclosed by the accounts themselves. They show and claim allowance for payments made to the widow and to the sons. If the payments to the sons were unauthorized, the lack of authority can only be discovered by an examination of the will by which the trusts were created.

On the part of respondent it is contended that the will of William Hedges Baker and its trust provisions were, in fact, a part of the proceedings; that by those provisions the trustees were not authorized to pay any of the mine rents received by them to the sons of testator, at least until they had taken measures to provide for the comfortable maintenance of the widow during her life or widowhood out of such mine rents, and that the allowance of payments out of the mine rents made to the sons was error appearing in the accounts.

The same contention is made in support of the decree which surcharged the account of appellant with the mine rents so paid to the sons.

On the other hand, it is contended that the orphans court possessed no power to construe the will of William Hedges Baker, and that its allowance of accounts under an adjudication as to the true construction of the will was not within its jurisdiction.

The act conferring jurisdiction on the orphaná court to construe wills and to decree distribution thereunder became section 151 of the Orphans Court act of 1874. Its provisions are now contained in section 173 of the Orphans Court act of 1898. In the court of errors some doubt has been expressed as to the constitutional validity of legislation conferring upon the orphans court powers in respect to the construction of wills, which powers had been theretofore exercised by the court of chancery. Adams v. Adams, 1 Dick. Ch. Rep. 298. But the proceedings before us were not brought for the purpose of procuring the construction of the will. In the exercise of the power of the orphans court to examine and adjudicate upon accounts of executors, administrators and trustees, it had doubtless power to incidentally consider and construe wills'in the determination of questions thus presented, as, e. g., the interest of parties affected by the accounting. Dunham v. Marsh, 7 Dick. Ch. Rep. 256; S. C., 7 Dick. Ch. Rep. 831. Eor a like reason, if the action upon such accounts is considered to have either a prima facie or a conclusive effect, I have no doubt that the orphans court may consider and construe a will, if necessary to base their action upon, in allowing or disallowing the accounts presented.

Under these circumstances I think I may properly consider the deer-'' appealed from, in respect to the construction evidently put by the court below upon the third clause of the trust created by the will of William Hedges Baker. Erom the argument in support of the decree it is clear that the courts construed it as requiring the trustees, out of the mine rents, to provide the widow a comfortable maintenance, and as prohibiting them from disposing of any part of the mine rents so as to prevent them from making provision for such maintenance in case the mine rents ceased to be paid.

It is argued for respondent that the testator evidently intended that his widow should be provided with a comfortable maintenance for the period of her life, if she remained his widow. But his intent in this respect must be discovered in the language of his will. If that is clear and unmistakable, we are not at liberty to disregard the meaning of the language, because we conceive that testator, if he had contemplated the possibility of the mine rents ceasing to be paid (as it appears they have), would have made such a provision as is claimed. We must find such a provision in the language, and I am unable to discover that meaning therein. Carefully read, the third item of the trust does not contemplate or require a retention or accumulation of the mine rents to provide for future contingencies. On the .contrary, it expressly requires the devotion of all of them as received (1) to the payment of taxes, repairs, insurance and necessary expenses; (2) to the payment to the widow of the residue for the comfortable maintenance of herself and minor children, if necessary for that purpose, and (3) to the payment of the balance of the residue to his sons, share and share alike. The residue to be applied to the payment of the widow is evidently what remains after taxes, repairs, insurance and expenses have been paid. The balance of the residue is evidently that part of the mine rents received and not exhausted by taxes, repairs, insurance and expenses, and by the devotion out of them of what is necessary for the widow’s comfortable maintenance from time to time. That such balance of the residue was not to be hoarded up or accumulated for her future maintenance is rendered clear by the provision at the close of the clause in question, whereby the trustees may exercise an option as to the share of a son, viz., whether to pay it to his guardian (who is Clarissa .Baker under another provision of the will), or for his education and support, or to invest it for his benefit when of age. The same indication is given by the provision of the next clause of the trust, which directs the trustees to invest the proceeds of the sale of wood and timber and to pay the interest thereon “to or for the benefit of my said three sons as in the preceding clause they are directed to pay the balance of the residue of the mine rents.”

TJpon this evident construction I am driven to the conclusion that the orphans court erred in opening the settled accounts and in surcharging the accounting trustee, and the decrees appealed from must, for these reasons, be reversed.


author: Magie, Ordinary.

text:
    In the matter of the estate of Ann Sharp, deceased.
    [Filed February 26th, 1901.]
    In respect to claims of his intestate upon third persons, an administrator is only responsible for the exercise of such diligence and prudence as men of discretion would employ in their own affairs. If circumstances require Mm to employ a legal adviser, and he makes the selection in good faith and with reasonable prudence, he will not be responsible for errors or mistakes of counsel so employed.
    On appeal from a decree of the Hunterdon county orphans court.

      Mr. Richard 8. Kuhl, for the appellant.-

      Mr. George H. Large, for the respondent.
   Magie, Ordinary.

The decree appealed from is objected to on the single ground that the court below, in maldng it, had declined to surcharge the account of Jacob E. Sharp, administrator of Ann Sharp, deceased, with the principal and interest of a bond and mortgage of Peter W. Melick, which was inventoried by the administrator as being “in court,” and as being worth, for principal and interest, $2,800.

The facts disclosed by the evidence, as existing at the time the inventory was made, were the following: Ann Sharp was the holder, in her lifetime, of a bond made by Peter W. Melick,James Pideock and Peter Voorhees, the two latter persons being sureties, which bond was secured by a mortgage upon a farm of Melick in Somerset county. The legal adviser of Mrs. Sharp was Martin Wyckoff, who had been the executor of her husband’s will. He was employed by her to foreclose the Melick mortgage. He obtained a decree in her favor, and upon an execution •issued thereon the property was exposed to sale by the sheriff of Somerset county on June 15th, 1891. It appears that, at' that time, there was due upon the decree, for principal, interest' and costs, $2,973.13. Wyckoff, the counsel of Mrs. Sharp, and Jacob E. Sharp, who was her son and her agent, attended the sale. Voorhees and Pideock, the sureties, and Alvah A. Clark, Pidcoek’s counsel, were also present. Before the sheriff put up the farm for sale under the execution it was agreed by Wyckoff and Jacob E. Sharp, acting for the mortgagee, and by Pideock as surety and Clark acting for him, that Pideock should be permitted to buy the property at the sale. This manifestly involved the agreement of the mortgagee not to bid against Pidcoek. In consideration of that agreement, Pideock contracted that, upon his purchase of the mortgaged premises at the sheriff’s sale, he would pay the costs and expenses and accrued interest and so much of the principal as would reduce it to $2,000, and that he would secure the payment of the remaining principal by a mortgage to Mrs. Sharp upon the farm in question. The contract between the parties was not reduced to writing.

When the sheriff exposed the farm to sale under the execution Pideock became the purchaser for $1,100, and the sheriff afterward conveyed the farm to him by a deed bearing date July 2d, 1891, and recorded July 8th,'1891.

The uncontradicted evidence is that the transaction which occurred at the sheriffs office before the sale was reported to Mrs. Sharp and approved of by her.

Mrs. Sharp died on the 13th day of July, 1891, and her son, Jacob E. Sharp, was, shortly after, appointed her administrator, and included in his inventory the bond and mortgage of Melick as being “in court,” and as being worth $3,500 principal and $300 interest.

It appears in the case that the sheriff paid to Wyckoff the whole of the $1,100 paid by Pidcoek at the sale, except what was necessary to pay his costs and expenses, and that Wyckoff, after deducting taxed costs and his compensation, paid to Jaeob E. Sharp, the administrator, the sum of $800, for which he has accounted.

The question presented by this appeal is whether he should be charged with the $3,000 included in the $3,800 recognized by his inventory.

In the court below some consideration was given to the effect of the transaction of June 15th, 1891, and the orphans court expressed the opinion that the contract between Pidcock and the complainant in the foreclosure was wholly void, as being a contract to prevent bidding at a foreclosure sale, and so contrary to public policy.

Since the decision in the court of errors, in De Baun v. Brand, 32 Vr. 624, reversing the decision of the supreme court in the same case, in 31 Vr. 283, it may be questioned whether a contract such as the evidence discloses might not have been made between the parties interested in the sale and be a contract not obnoxious to public policy. But assuming that such a contract could have been made, I think it manifest that no enforceable contract was made. Manifestly, it was a contract to secure a lien upon an interest in lands, and fell within the provisions of the statute of frauds, denying the'right of action upon contracts of that character not put into writing.

I therefore agree with the court below that the contract in question was not one which could have been enforced by Mrs. Sharp.

But it is obvious that Jacob E. Sharp is not to be charged, as administrator, with the uncollected amount which that contract, if enforced, would have produced. His mother was then living. His part in the transaction was that of agent for her. He acted therein in connection, with her legal adviser and upon his advice, and his mother, on being informed of what had taken place, approved his conduct.

Whether Jacob E. Sharp should be charged with the $2,000, to secure which Pidcock had agreed to malee a mortgage upon the farm, must depend upon his conduct after the death of his mother, and while he was charged with the responsibilities of her administrator.

When he became administrator and proceeded to inventory her estate he recognized the existence of this claim, and indicated in his inventory that it was one in litigation. This was only partially true, but plainly represents the impression produced on his mind, by what had taken place in his presence, for it is obvious that he deemed that the $2,000, yet unpaid, was in some way enforceable by means of the decree and the contract made in the sheriff’s office. It is also apparent, from the uncontradicted evidence, that his legal adviser, who had been his mother’s counsel and was continued by him as his own counsel, advised him that the agreement made in the sheriff’s office could be enforced, and the mortgage could be compelled to be made and delivered upon its terms, so that the inventory fairly expresses the situation as it appeared to the administrator.

Looking at the agreement made in the sheriff’s office as one in fact and in law unenforceable, it is obvious to us now that the sole recourse of the administrator to enforce the payment of the unpaid principal of the mortgage foreclosed was an action upon the bond against the principal and his sureties for the deficiency which had not been made up by the sale under the execution in foreclosure. But bj the provisions of the “Act concerning proceedings on board and mortgage given for the same indebtedness, and the foreclosure and sale of mortgaged preanises thereunder,” approved March 12th, 1880, and the amearded act passed March 23d, 1881, such an action required to be commenced within six months from the time of the foreclosure sale.

What, then, was the duty of the administrator ? He had continued to employ the same counsel who, in behalf of his mother, had obtained a decree and had entered into the agreement on the day of sale for her. It is plain that he was never advised that he might have proceeded to collect the deficiency by action upon the bond, bnt was continually advised that he could procure a mortgage securing it, which had been promised at the time Pidcock' bought the property. The counsel he had employed had not only been the counsel of his family and of his mother, but was in good standing, nor'am I prepared to say that in failing to advise recourse to the bond he necessarily indicated a lack of judgment or professional skill, for it is obvious that he relied implicitly on the agreement made by Pidcock and his counsel respecting the mortgage security for that deficiency. At all events, I am unable to say that an administrator who has employed counsel reputed to be competent is to be charged with neglect of duty when he accepts the advice given to him and acts upon it honestly and in good faith. That the administrator did so abundantly appears. He not only urged his counsel to demand and obtain the mortgage, but applied for it himself several times, and evidently confidently expected to obtain it. While endeavoring thus to enforce the performance of a contract Miich he believed to be binding, Wyckofl: left the state. Thereupon the administrator employed a firm of repute to take up and prosecute the matter. It was the firm of Voorhees & Cotter. At that time more than six months had elapsed since the sale. Administrator’s new legal advisers deemed it proper to bring an action for him against both Pidcock and Clark. It was an action in tort, and the declaration therein was met by a demurrer by Clark. That demurrer was sustained in the supreme court. The case remained undisposed of, probably because Pidcock had, in 1893, become insolvent. It should be stated that before the argument of the demurrer Mr. Voorhees had died, and the administrator had employed his present counsel.

All that is disclosed by the evidence clearly indicates that the administrator, in dealing with this unusual conjunction of circumstances, employed counsel whom he had a right to deem competent; that he accepted their advice; that he had obeyed their instructions, and sought, by their means as well as by his own personal persuasions, to bring about the performance of the contract, which, though unenforceable at law or in equity, had, at least, a foundation in good morals.

The administrator is not the insurer of the collection of the uncollected claims of his intestate. At the most, he is responsible for the exercise of such diligence and prudence as men of discretion and intelligence would ordinarily use in their own private affairs. In the selection and employment of successive counsel, in the endeavor to collect the claim in question, it is impossible to deny that the administrator had done what a man of sense and intelligence would have done in respect to his own private affairs. To find him lacking in duty because he accepted the advice of the counsel whom he had employed, would require him to be charged, not with his own negligence, but with the negligence of others. Administrators are necessarily compelled at times to employ legal advisers, and commit to their wisdom and intelligence the conduct of litigation. When they have made the selection in good faith, and with reasonable prudence, they are not to be charged with the errors or mistakes of those whom they have employed.

It results that the decree below must be affirmed.


author: Reed, Vice-Ordinary.

text:
    Edmund B. McCully et al., appellants, v. John B. Warrick, respondent.
    [Filed July 10th, 1900.]
    Section 6 of the Orphans Oourt act provides that the personal estate of an illegitimate person, dying intestate unmarried and without issue, shall go to and be paid over to the mother of such illegitimate. Held, that if the illegitimate person outlives his mother, neither his brothers or sisters by such mother, nor their issue, will take his estate.

      On appeal .from the Burlington orphans court.

      Mr. Charles I. Wooster, proctor, and Mr. John J. Crandall, of counsel for the appellants.

      Mr. Mark B. Booy, proctor and of counsel for the respondent.
   Reed, Vice-Ordinary.

This appeal is from a decree of the Burlington orphans court .distributing the estate of Isaac Warrick, deceased, who died intestate.

The primary question involved in the trial below was the legitimacy of the intestate. He was the son of Anthony War-rick and Sarah Warrick {nee Erench), who had entered into •the ceremony of marriage on September 30th, 1815.

Sarah Erench had previously, on December 26th, 1812, entered into a ceremony of marriage with one Josiah Boud. Boud -was still living at the date of her subsequent marriage to Anthony Warrick, and, so far as appears, undivorced from her. By Boud -she had one child, Elizabeth Boud, who married Joseph B. Mc-Cully. By him she had the five appellants. The appellants .claim that, inasmuch as Sarah Erench was already married to Josiah Boud, who was still living, with no evidence of their "having been divorced, her marriage with Anthony Warrick was .a nullity, and that the children born to her from her marriage -with Warrick were bastards.

• The principal reply to this contentipn, made by the appellees, -who are the descendants of Anthony Warrick and Sarah, is -that Josiah Boud was a married man at the time he entered Into his pretended marriage with Sarah Erench, and that there-fore the ceremony was a nullity, and she was free to marry Anthony Warrick. The woman to whom it is claimed Josiah Boud was married was one Helena Barkalow. The proof of -that marriage occurring, as it did, if at all, nearly a century .ago, in the absence of a record of the ceremony, is dependent ■necessarily upon declarations of deceased members of the family.

Nice questions were presented, both as to the competency of •the declarations of the witnesses, who were variously related to -the intestate as well as to Josiah Boud, and as to the probative rforee of such testimony.

.The orphans court found that Josiah Boud was already married to Helena Barkalow when he pretended to marry Sarah French. The consequence of such finding was that Elizabeth, the child of the connection between Josiah Boud and Sarah French, was illegitimate, and the marriage to Anthony Warrick was regular, and so Isaac Warrick was their legitimate son. This being so, the estate of Isaac was distributed to his next of kin, the Warrieks.

But the appellees challenge the right of the appellants to prosecute this appeal, on the ground that they are not aggrieved by the decree of the orphans court. They insist that, conceding all that appellants claim, namely, that Isaac Warrick was illegitimate, and that the appellants’ mother was the legitimate child of Sarah, nevertheless the appellants can claim no part of the intestate’s estate, and therefore they have no interest in the determination of the orphans court, however erroneous.

At the outset, then, it is necessary to ascertain whether the appellants have a footing at all in this court to challenge the correctness of the decree.

It is perceived, that any right of the children of Elizabeth' to the property of Isaac Warrick must be traced through Sarah, their grandmother, the mother of the alleged bastard intestate. At common law Isaac Warrick, being nullius films, neither his natural mother nor any of her descendants could claim any kinship with him, and this was the common law of this state. 2 Kent. Com. 216.

But it is claimed that this rule has been changed by legislation, to be found in the fifth and sixth sections of the Orphans Court act (Gen. Slat. p. 2390), and that it has been so changed that collaterals can inherit through the ancestry of the bastard, as if the bastard was completely legitimated. The language of section 5 is:

“If the mother of any illegitimate child or children shall die without leaving a husband surviving her, and leaving no lawful issue, or the issue of any, then the surplusage of her goods, chattels and personal estate shall be paid to her illegitimate child or children.”

Section 6 is:

“The whole surplusage of the goods, chattels and personal estate of any illegitimate person, who shall die intestate and unmarried and leaving no lawful issue, or the issue of any him or her surviving, shall go to and be paid over to the mother of such'illegitimate person.”

It is claimed that inasmuch as by the sixth section, if Sarah Warrick had survived Isaac, his personal estate would have gone to her, therefore, she having already died, it will go to her next of kin, as her representatives.

These statutes effect a radical change in, and are in derogation of, the common law rule controlling inheritance. It is manifest that the words of the act confer no transmissible inheritable qualities, either upon" the son or the mother. The express words of the statute are that if such illegitimate son die without lawful issue, his estate shall be paid over to the mother. The statute stops there. It makes no provision for payment to any other person or for any representation of the mother in ease of her death. A construction which would make her the medium through whom her kin could inherit from her bastard son would be to read into the statute words which no rule of construction, however liberal, would, in my judgment, countenance. The purpose of the statute is to abate the rigor of the rule of the common law in respect to bastards. But the construction for which the appellants contend would operate to continue the exclusion of all natural brothers and sisters of the whole blood of Isaac from any participation in his estate, while it would confer all his estate upon the children of his half sister, Elizabeth. This result, in my judgment, is unwarranted by the statutory language.

The proctor of the appellants cites a number of eases in which it was held that, under statutory provision respecting descent or distribution to and from bastards, a brother, sister or other collateral could take. But the statutes which have received this construction have been radically different from ours. Garland v. Harrison, 8 Leigh 368; Hepburn v. Dundas, 13 Gratt. 219, are constructions of the Virginia statute of 1785. The language of this statute is:

“Bastards shall be capable of inheriting or transmitting inheritance on the part of their mother in like manner as if they had been lawfully begotten of such mother.”

The construction contained in the opinions in these cases was in opposition to that of Mr. Justice Washington, in Stevenson v. Sullivant, 5 Wheat. 207, who held that the act did not create the relation of brothers and sisters between children of the same mother so as to enable them to inherit from each other. Lewis v. Eutsler, 4 Ohio St. 354, is a construction of the same statute re-enacted in Ohio, and Briggs v. Greene, 10 R. I. 496, of the same statute re-enacted in Rhode Island.

The cases of Stover v. Boswell, 3 Dana 233, and Jackson v. Collins, 16 B. Mon. 214, were also constructions of a similar statute enacted in Kentucky. But the last two cases do not support the theory of collateral inheritance through the mother of the bastard, even under the terms of that statute.

Other Kentucky cases, namely, Allen v. Ramsey, 1 Metc. (Ky.) 635; Jackson v. Jackson, 78 Ky. 390, and Croan v. Phelps, 94 Ky. 213, hold that the statute did not provide for the transmission of the estate of the bastard through his mother to his collateral kindred, nor for his reception of the estate of his dead mother’s brother, nor for his inheritance, with his mother, from her ancestors.

This Virginia act appears also in the legislation of Florida and Missouri. In Williams v. Kimball, 35 Fla. 49, it was held that the statute legitimated the bastard only as to his mother, and not in respect of her kindred, and that the bastard could not take from her collateral. A similar strict construction was put upon the act in the case of Bents, Administrator, v. St. Vrain, 30 Mo. 268.

Of the other statutes which have been construed in the cited cases none is like ours. For instance, the statutes construed in the cases of Huston v. Davidson, 45 Ga. 574, and in Alexander’s Administrators v. Alexander, 31 Ala. 243, provided, in express terms, that bastard children may inherit from each other.

In Opdyhe’s Appeal, 49 Pa. St. 373, cited by the appellants, the court, in holding that illegitimate shared with legitimate children the estate of their mother, merely gave the words of the act of 1855 their natural force. The act provided that mother and son should inherit from each other as heirs and next of kin, and transmit the same according to the intestate laws of the state.

Under this statute it was held, in Grubb’s Appeal, 58 Pa. St. 55, that the act should be strictly construed, and that the kindred of the mother of a bastard could not take the estate of a deceased bastard as next of kin of her deceased mother. In Steckel’s Appeal, 64 Pa. St. 493, that where a bastard died before his mother, he could not transmit a right from her to his children. And in Woltmate’s Appeal, 86 Pa. St. 219, that the statute did not enable illegitimate children of the same mother to inherit from each other.

A statute of Tennessee provided that if a woman died intestate, leaving a natural born child or children, such natural born child or children shall take as heir to the mother; and in case of .intestacy without issue, the brothers and sisters of such natural born child or children shall inherit from him or them.

The supreme court of Tennessee, in Brown v. Kerby, 9 Humph. 460, held that a bastard could not take his mother’s share of the grandmother’s estate, she being dead. The court said that the statute made the bastard the heir and distributee of the mother, but extends its right no further, and that the child could inherit no estate under its provisions from the relatives, lineal or collateral, of the mother.

In McGuire v. Brown, 41 Iowa 650, under a statute providing that illegitimate children shall inherit from their mother, and the mother from the children, the supreme court of Iowa held that the children of the same father would inherit from each other. This construction, however, was reached by giving force to section 2497 of the code which provided that their share was to be disposed of under this section in the same manner as if they or either of them had outlived the intestate and died in possession and ownership of the property thus falling to their share.

It was correctly argued that the mother, if she had outlived the intestate, would have taken, and by force of the express provision, of section 2497 of the statute it had to descend as if she had outlived him.

In Bacon v. McBride, 32 Vt. 585, Chief-Justice Bedfield, disapproving the case of Burlington v. Fosby, 6 Vt. 83, held that under a statute providing that “bastards shall be capable of inheriting and transmitting inheritance on the part of the mother,” illegitimate children do not inherit from legitimate children of the same mother.

Construing a statute of Massachusetts, which provided that an illegitimate child shall be considered as heir of his mother, and shall inherit her estate, in like manner as if he had been born in lawful wedlock, the supreme court, in Curtis v. Hewins, 11 Metc. 294, excluded the bastard’s children from the estate of his mother where he had died in her lifetime.

The general sentiment exhibited by these decisions is that these statutes should receive a strict construction and that the extent of the statutory change from the rules of the common law must be clearly defined.

The legislature in this state has said the personal estate of a bastard dying without leaving a will, wife or child, shall go to and be paid over to his mother. That is all that is said.

It is not conceivable that the legislature, if it had thought of the collateral inheritance of this property through the mother, would not have provided for it, and have done so in a way that would have let the bastard’s illegitimate brothers and sisters share in the distribution.

The appellants, in my judgment, can claim nothing through, the mother of the intestate, whether he was legitimate or illegitimate, and therefore they are not aggrieved and their appeal should be dismissed.


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    Harriet Higgins, appellant, v. Margaret McQuirk, respondent.
    [Filed October 23d, 1900.]
    P. L. of 1S98 p. 789 § 197 permits testator’s estate to be taxed with the costs of the unsuccessful contest of his will when the only evidence offered by the contestants is that of the subscribing witnesses, or there were reasonable grounds for such contest. A testator, twenty-four years old, and of sound mind, and who had resided for nine years in the home of M., devised his property to the daughter of M. Testator was unmarried, childless, and without brother or sister, and there was no evidence of any undue influence. The contestants were aunts of the testator. Held, sufficient to sustain an order taxing the costs of a contest of his will to the contestants.
    On appeal from an order of the orphans court of Passaic county.

      Mr. William W. Watson, proctor for the appellant.

      'Mr. Michael Dunn, proctor for the respondent.
   Reed, Vice-Ordinary.

The probate of the will of Joseph Whitford was contested on the ground that its execution was induced by undue influence. The orphans court of Passaic county admitted the will to probate. The court also refused to allow costs and counsel fee to be paid out of the estate.

On this appeal it is practically admitted that the decision of the court in admitting the instrument to probate cannot be successfully attacked. The insistence is, however, that the court erred in refusing to direct that the expense of the-litigation, including a counsel fee to the proctors of the caveators, should be paid out of the estate.

The testator was twenty-four years of age at the time of his death, on December 36th, 1899, was unmarried, childless and without living brothers or sisters. The caveators are aunts. He had made his home for nine years preceding his death with Mrs. McQuirk, the mother of Maggie, the legatee. His mind was entirely clear at the time of the execution of his will, as his directions to the lawyer who drew that instrument and the testimony of his attending physician demonstrate.

In respect to this intelligent adult, no presumption of undue influence springs from his relations with the MeQuirks; and there is no testimony whatever that any influence was employed, aside from those offices of kindness which they rendered him, particularly during the days of his last sickness. The futility of the caveators’ contest must have been apparent to the proctors of the caveators after the examination of the subscribing witnesses. It was certainly apparent to them, they knowing the character of the testimony which would be and was subsequently produced. How, the statute (P. L. of 1898 p. 789 § 197) permits the testator’s estate to be burdened with the costs of a contest like this only in two ■ instances—first, when the contestant shall not have offered any evidence at the trial except that of the subscribing witness, and secondly, when it appears that the persons contesting the validity of the will had reasonable cause for so doing. Heither of these conditions appear in this cause, and the order of the orphans court is affirmed.


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    In the matter of the appeal of Luther F. Pitcher and Louis S. Pitcher from an order of the orphans court of Monmouth county.
    [Filed October 23d, 1900.]
    The statute provides that to prevent an administrator’s sale of land, the heirs may give bonds, to be approved by the orphans court, for payment to the administrator of whatever money may be needed to discharge the remaining debts of the deceased. The personal estate of decedent amounted to $260. The claims filed were $127.31 and over $1,100 in notes, made by deceased directly to his widow, who was the administratrix. On application by the administratrix for leave to sell land, the heirs offered to give bond to pay all the debts, except the notes. Held, that an order for sale was proper, since the orphans court could not determine the validity of claims, on application for leave to sell land, and the offer of the heirs was not in conformity with the statute.

      Mr. Frank P. McDermott, proctor for the appellant.

      Mr. Aaron E. Johnston, proctor for the respondent.
   Reed, Vice-Ordinary.

This is an appeal from the order of the orphans court of Monmouth county to sell lands, upon the application of the administratrix, stating that the personal property of her intestate was insufficient to pay the debts of the estate. The intestate owned two tracts of land and about two hundred and sixty dollars'’ worth of personal property. His widow administered. The claims presented were for surrogate fees, $21.81; funeral expenses, $103; medical attendance, $2.50, and notes, of the intestate held by his widow, made directly by him to her, amounting to $1,132.03.

On the return day of the rule to show cause why the estate should not be sold, two sons of the intestate opposed the sale, and offered to pay the first three of these claims or to. give bonds to pay them. They now appeal from the order of sale made.

It is settled that, upon an application to sell real estate on account of a deficiency of personal property to pay debts, the orphans courts have no right to try the validity of the debts of those who have filed claims with the executor or administrator. The only subject of inquisition by the court is whether the claims made to the administrator are correctly stated by him. Smith v. Smith, Administrator, 12 C. E. Gr. 445; Middleton v. Middleton, 8 Stew. Eq. 115; Partridge v. Partridge, 1 Dick. Ch. Rep. 434; S. C. on appeal, 2 Dick. Ch. Rep. 601, This inability of the orphans court to try the validity of a presented claim was one of the grounds upon which Chancellor McGill, in the case of First Baptist Church of Hoboken v. Syms, 6 Dick. Ch. Rep. 363, entertained a suit in chancery to set aside, as fraudulent, a judgment presented as a debt to an executor. He said that the serious injury to the complainant was manifested in the necessity it occasioned for the submission of the real estate to a forced and, perhaps, sacrificial sale to unnecessarily raise a large sum of money. As there was no way of attacking the judgment in the orphans court, the only resort left to those interested in the real estate was in a court of equity.

The orphans court then having the claims reported to it by the administratrix was bound to make the order, unless the heirs of the intestate took advantage of the statutory provision for giving bond for the payment of jjhe debts. The heirs offered to give bond for the payment of some, but not all the debts. The statutory language is that they may appear before the court- and enter into bonds to the executor or administrator, in such sums and with such sureties as the court shall approve, conditioned for the payment to such executor or administrator of so much money as may be required to pay the residue of the debts of the testator or intestate. The offer of the heirs, therefore, was not in conformity with the statute, and left nothing for the orphans court to do but what it did.

The decree is affirmed.


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    In the matter of the appeal of Thomas Moore from an order overruling his exceptions to the account of James H. Moore, as counsel of James Moore, deceased.
    [Filed December 14th, 1900.]
    1. Where a testator provided by his will that certain advances- evidenced by separate papers should be deducted from each son’s share of the estate, an advancement of $14,000 shown by such a paper was properly charged against the share of a son, who had admittedly received $15,000 from the father without repayment.
    2. Where a testator provided that the amounts to be charged as advancements to his sons should be evidenced by papers made subsequent to the execution of his will, there was no attempt to add to, change or complete the provisions of the will by papers not executed with the formalities required by the statute of wills, since such papers were not testamentary in their character.
    3. Where a son, having received advances to the amount of $15,000, claimed an equitable deduction therefrom by reason of his father’s promise to pay him certain commissions, which promise was indefinite as to the manner of its performance, a provision in the father’s will treating the $15,000 as money advanced and chargeable to the portion of the son, was binding on the son.
    On appeal from the Union county orphans court. On exceptions to an inventory and final account.

      Messrs. Glen & Bosinger, proctors for the exceptant.

      Messrs. Lindabury, Depue & Faulks, proctors for the executor.
   Reed, Vice-Ordinary.

James Moore died August 14th, 1897, leaving a will, which was probated August 27th, 1897, and letters testamentary issued to James H. Moore, his son and surviving executor.

The will contained the following clause:

“In making division of my property aforesaid as above directed I hereby further direct that certain amounts of money that I have already advanced or may hereafter advance to certain of my children, shall in each case be charged against the portion of each of said children, and be inventoried as part of the estate of which I may' die seized, at the full amount of the charge in each instance, but without interest thereon. All such charges are contained in sealed envelopes to be found with this my last will. All other evidence of indebtedness against any of my said children, which I may have at my death, I hereby give and bequeath to such debtors, respectively, to each child the evidence of his or her indebtedness, and discharge each of said debtors from all his or her obligations in respect to such and all indebtedness for any such advances or debts, except such as I have heretofore specified as being left with this my will.
“These amounts' I cannot at present certainly indicate, as they are liable to be changed before my death by payments to be made or by further advances by me.”

After the testator’s death the executors found the-will in a sealed envelope, and with it three other papers, signed by the _ testator, one of which was in the following form:

“Elizabeth, N. J., February 22d, 1893.
“The sum of $14,000 is to be charged to account of my son Thomas-(without interest) for money heretofore advanced by me to him in accordance with the provisions of my will contained in the third section thereof.
“James Moose.”

The point taken by Thomas Moore, the exceptant, is that “this paper is an attempt to add to, change or complete the provisions of a will by a subsequent paper not executed with the formalities required by the statute of wills.”

There is no doubt that a testator can provide that the amount-to be received by a legatee shall be dependent upon a condition of fact to be ascertained aliunde. Some of these conditions are-noted by Chief-Justice Denio, in his opinion in the leading case of Langdon v. Astor’s Executors, 16 N. Y. 1, 26.

This is so, even though the condition may be brought about by the testator himself. Stubbs v. Sargon, 3 Myl. & C. 507.

The testator could have provided that all advances made toy or debts owing by, a legatee, whether made or incurred before or after the • execution of the will, should be deducted from his portion. Such amount may be ascertained by parol evidence,, and may be varied by advancements made subsequent to the-execution of the will. 1 Underh. Wills 447.

A frequent testamentary provision is that such debts or advancements as are charged on testator’s books against legatees shall be deducted, and these provisions are valid. Robert v. Corning, 89 N. Y. 227.

When a testator provides that such advancements as are indicated by entries, to be subsequently made by him, shall be deducted from the share or legacy, a mere entry, it seems, unless there have been advancements in fact, will not suffice. Hoak v. Hoak, 5 Watts 80.

Parol evidence is admissible to support the book entries. Estate of Mussleman, 5 Watts 9; Gilman v. Gilman, 63 N. Y. 41.

In -the present case I think it appears that, before the execution of the will, testator had paid to, and for the benefit of, the exceptant moneys, which were never repaid, to an amount in excess of $14,000. It is to this sum that the testator alludes when he speaks of the amounts of money “that I have already advanced.” The checks produced, taken in connection with the explanation of the exceptant himself, seems to establish this fact.

It is true, the exceptant says, after admitting advances to the amount of $15,000, that he is equitably entitled to a deduction, because his father promised to make up to him certain commissions for the sale of the Staten Island railroad, if his son would abandon his suit for the same. He does not say that his father promised to make it up to him in any particular manner. It does not appear whether it was to be made up to Mm by relieving the son from the amount which he (the father) had loaned to the firm of Mason, Peas & Moore and the firm of Peas & Moore, for which sum his son, as a member of the bankrupt firm, was responsible, or whether he was to make it up to him in some other unexplained manner. So I am of the opinion that the testator had the right to regard the $15,000 in money, which the exceptant admittedly received, as money advanced.

How, the testator having the right to provide that such advances should be charged to the portion of exceptant, the question remains, did he defeat Ms intention to charge some of the advances by providing that the amount which he intended to charge should be evidenced by a paper made subsequently to the execution of Ms will?

In my judgment the paper which contained the charge is not to be regarded as testamentary in its character. The effect of the contents of the paper was restrictive. Suppose the testator had said, I charge all the debts owing to me, which I have not discharged or forgiven at the time of my death, and the receipt, release or paper evidencing such discharge will be found with my will. This would seem analogous to a provision containing a gift of certain property, unless it should be conveyed before the testator’s death. The fact that he mentioned where such deed or conveyance could be found, if made, would be in no degree material.. It being proved that more than $14,000 had been advanced to, this legatee, the paper which expressly charged him with only $14,000 was impliedly a gift of the remainder of the advances.

I think that the decree of the orphans court should be affirmed.


author: Eeed, Vice-Ordinary.

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    The State of New Jersey, appellant, v. The New York Yearly Meeting of Friends, respondent.
    [Filed January 18th, 1901.]
    The New York Yearly Meeting of Friends is the general .governing body of the Society of Friends, and has primary control over the missionary purposes and general benefactions of such minor bodies as act by its authority, and as such the society comes within the exemption from inheritance tax provided by P. L. of 1898 p. 106, in favor of bible or tract societies, religious organizations, boards of the church or organizations thereof, “not confined in their operations and benefactions to local or state purposes, but the general good of the people interested therein, of the United States or of foreign lands, as the board of home and foreign niissions of various church denominations.”

      Mr. Samuel H. Grey, attorney-general, and Mr.- Frank T. Lloyd, proctors for the appellant.

      Mr. Howard M. Cooper and Mr. Steven W. Collins (of the Few York bar), and Mr. David J. Pancoast, proctors for the respondent.
   Eeed, Vice-Ordinary.

The appellee is a legatee under the will of John G. Lane, who died May 29th, 1899. His will was proved in Camden county. The surrogate of that county assessed, on account of collateral inheritance tax, the bequest in said will made to the Few York Yearly Meeting of Friends.

This is the language of the bequest:

“12th. I give and bequeath to New York' Yearly Meeting of Friends, orthodox branch, the'Sum of one hundred thousand dollars ($100,000).
“This principal sum to be invested and the interest or income from it only to be used for educational purposes under the care and supervision of said Religious Society of Friends. I have long desired that New York Yearly Meeting might have an institution of learning more in keeping with the age in which we live, and am aware that a lack of funds has in some measure thus far proved a barrier. But there should be a renewed earnestness of the membership in this important work; and with the hope that the Lord will bring this to pass and that he will also raise up some especially qualified for such a field of labor. I have made this gift trusting that others may be incited to do likewise; and that under the Lord’s guidance blessings may result to future generations.”

The appellee insists that the said bequest is exempt from taxation under section 1 of the statute of 1898, chapter 62. The statute reads as follows:

“All gifts, grants, legacies, bequests and devises, whether by will, deed or otherwise, of real or personal property, by residents or citizens of this state, to any bible or tract society, or religious institution, boards of the church or organizations thereof, in trust or otherwise, not confined in their operations and benefactions to local or state purposes, but for the general good of the people interested therein, of the United States or of foreign lands, as the board of home and foreign missions of various church denominations, shall not be taxed under said act, whether said societies, religious institutions or boards aforesaid are organized under the laws of this state, or incorporated and organized under the laws of some other state.”

The testimony shows that the legatee is a religious institution. The Society of Friends is distinctly a religious body, and the New York Yearly Meeting of Friends was instituted for the purpose of co-operative action in cultivating and extending its religious work and influences.

The important question is this: Is it confined in its operation and benefactions to local and state purposes, or is it organized for the purpose of the general good of the people interested therein of the United States or foreign lands as the board of home and foreign missions? The New York Yearly Meeting is the general governing body of the Society of Friends, and has primary control over the missionary purposes and general benefactions of such minor bodies as act by its authority. It has a large number of meetings. Funds are set apart for work among the Indians and for the benefit of former slaves in the South. It has a mission in Mexico, a normal school for the training of colored children to be teachers in North Carolina, and schools and missions in Palestine, Japan and China. Its membership is not confined to the State of New York. It has meetings organized in Vermont, in the Province of Quebec and in Canada. Membership in these meetings is not confined to state lines.

I can see no substantial difference between the methods of these meetings and the methods of the boards of home and foreign missions of the various religious organizations. Its charities and educational work, in the line of its religious purposes, is carried on by the agencies of committees and trustees, just as others are by committees and secretaries. The field covered by its work seems quite as broad and both are unconfined to local or state purposes. While it is conceded !hat this legatee must come clearly within the words of the act which gives it immunity, I am of the opinion that it is clearly included within the statutory language.

The decree of the orphans court should be affirmed.