author: BETTS, S.

text:
    In the Matter of the Application for Letters Testamentary under the Will of Thomas Cornell, deceased.
    (Surrogate’s Court, Ulster County.
    April, 1893.)
    1. Appointment of administrator—Former renunciation of executorship.
    Under Code Civ. Proc. § 8639, making it discretionary with the surrogate to grant letters testamentary to a person who had been nominated in the will, but had renounced the executorship, such application will be denied where it appears that a year before the applicant was-70 years old she had been twice paralyzed and was bedridden, and. there is no evidence to show that her condition had since changed.
    3. Same—Death of executor—Successor nominated by will.
    A direction in a will that, if the executor appointed thereby should die, a certain other person should be his successor, with all the authority and power that he would have had if appointed in the first instance, requires the appointment of such person on the death of the executor, though it occurred after testator’s death.
    H. C. Soop, for IIorace G. Young; Cardoza Bros., for Catharine Ann Cornell and Nellie L. Carpenter; A. T. Clearwater, for S. D. Coykendall, general guardian, and others.
   BETTS, S.

—Thomas Cornell died March 30,1890. His will was proved April 3,1890: Catharine Ann Cornell, one of the executors and trustees named in the will, renounced her rights thereunder April 5, 1890. Letters testamentary were issued to Edwin Young, as executor and trustee under said will, on the 3d day of April, 1890. A further renunciation of Catharine Ann Cornell, and a ratification of her previous renunciation,' dated May 16, 1890, was filed the same day in this court. After providing for the payment of his debts and funeral expenses, the third clause of the will of Thomas Cornell provides as follows:

“ All the rest, residue, and remainder of my said estate, real,, personal, and mixed, of every name and nature whatsoever, I give, devise, and bequeath unto my executors and trustees herein named, and to their successors, with full power to sell all or any part of my said estate as they may deem advisable from time to time, at either public or private sale, and upon such terms as they shall deem proper, and to invest and reinvest the proceeds from such sales, or any moneys that may come into their hands, as they think best, without regard to any statute or law regulating such investments, and without any personal liability of either of my said executors, or their successors, of any such action, or for any loss or depreciation my said estate may suffer because of such investment; to be held by my said executors and their successors in trust for the following purposes and uses only, to wit.”

Then follow the various bequests and devises contained in the will, disposing of the property of the said deceased. The sixth clause of the will of Thomas Cornell is as follows :

“I nominate, constitute, and appoint my beloved wife, Catharine Ann Cornell, and my nephew, Edwin Young, of Albany, N. Y., executors and trustees of this, my last will and testament, and I hereby empower my said executor, Edwin Young, in case of the death of my said wife, to nominate and appoint her successor, if he deems one necessary; otherwise to assume the duties of this trust alone. And m case of the death of my said executor, Edwin Young, it is my will that my nephew, Horace Gf. Young, shall be his successor as executor and trustee of this, my last will and testament, with all the authority and power that he would have if nominated and appointed by me as the others now are.”

The said Edwin Young died April 21, 1893, leaving a part of said estate of Thomas Cornell unsettled, and the trust, created under said will unexecuted. An ex parte application is made by Horace Gf. Young, his successor named in said will by the clause above referred to, for letters testamentary as executor under the will of said Thomas Cornell by verified petition, and the said Horace G. Young has also taken, and filed the usual oath as executor under said will. About the same time, and shortly after the application of Horace G. Young for letters testamentary, a retraction of the renunciation of Catharine Ann Cornell is filed, and a request for the granting of letters testamentary on the estate of Thomas Cornell to her. At the same time a verified petition, setting forth matters more fully, and asking for the same letters testamentary, is filed by said Catharine Ann Cornell. This ex parte application of Catharine Ann Cornell is made, I assume, under section 2639 of the Code of Civil Procedure, which is as follows :

“ A person named as executor in a will may renounce the appointment by instrument in writing, signed by him, and acknowledged or proved, and certified in like manner as a deed to be recorded in the county, or attested by one or more witnesses and proved to the satisfaction of the surrogate. Such a renunciation may be retracted by a like instrument at any time before letters testamentary or letters of administration with the will annexed have been issued to any other person in his place, or, after they have been so issued, if they have been revoked, or the person to whom they were issued has died, or become a lunatic, and there is no other acting executor or administrator. Where a retraction is so made letters testamentary may, in the discretion of the surrogate, be issued to the person making it. An instrument specified in this section must be filed and recorded in the surrogate’s office.”

Thus it will be seen that this application is addressed to the discretion of the court, and the rule would seem to be a sound and just one, as many matters might occur that would make it undesirable that letters testamentary that had been renounced should subsequently be issued to the person formerly renouncing. This estate is a large one, and requires the active and intelligent direction of a person able physically to care for its varied and complicated interests. By her petition, dated July •22, 1892, and filed in this court on the 25th day of July, 1892, in a proceeding still pending in this court, this petitioner herein, Catharine Ann Cornell, described herself as follows: “ That your petitioner is of the age of 70 years, and has been twice stricken with paralysis, is bedridden, and obliged .to expend large sums of money for medical care and physician’s attendance.” And that is given as one of the reasons for the relief there sought. The petitioner is certainly nearly one year older than she was then, and we are not advised that her condition is physically improved. In view of these facts, it would seem not only cruel to a most estimable lady to place her in charge of a vast, complicated system of banking, railroad, and real-estate interests at her advanced age, but also illy caring -for the interests of the other parties directly concerned in the proper administration of this large estate. Therefore, in the •exercise of a sound discretion, for the reasons above given and •others, and in justice to all concerned in this estate, the application of Catharine Ann Cornell for letters testamentary on the estate of Thomas Cornell is denic:\ and an order may be entered to that effect.

How as to the application of Horace G. Young. It is decided in an English case (In Goods of Lighten, 1 Hagg. Adm. 233, cited in Williams’ Ex’rs, 286, 287, cited in Dayt. Sur. (3d ed.) p. 209:

“ Where a testator appoints an executor, and provides that, in case of his death, another should be substituted, on the death of the original executor, although he has proved the will, the executor so substituted may be admitted to the office, if it appears to have been the testator’s intention that the substitution should take place on the death of the original executor, whether happening in the testator’s lifetime or afterwards.”

In re Alexander’s Will, 16 Abb. Prac. (N. S.) 9, the courts have held as follows :

“ Alexander died June 13, 1873, leaving a last will, duly probated, containing the following clause: ‘ I hereby nominate and appoint my said wife the executrix of this my will, hereby revoking all former wills by me made, and request that such male friend as she may desire shall be appointed with her as co-executor.”

Letters testamentary were at once issued to the widow, and afterwards, and on or about March 2,1874, nearly a year after probate, upon her petition, one Wandell was associated with her as co-executor in pursuance of above clause of said will, and letters testamentary were granted to him ex parte. A motion was made to revoke the letters testamentary of Wan-dell, by a creditor, as unauthorized by law, which was denied by the surrogate. The surrogate held that the executor derives his authority from the will of the testator. The statute regulates the manner in which that will shall be carried into effect, and prohibits the executor from acting until the will has been admitted to probate, and the executor, so to speak, has been judicially certified to be the person designated by the testator: The surrogate quotes approvingly from Dayton on Surrogates (3d ed., p. 212, etc.) as follows :

“ Letters testamentary are merely operative as the authenticated evidence, and not at all as the foundation, of the executor’s title, for he derives all his interest from the will itself.”

Again, the surrogate says :

“ The statute [referring to a section of the Revised Statutes under consideration] does not provide for the appointment of executors by testators, but simply declares the duties of the surrogate with reference to executors already ajrpointed. It does not prescribe the mode of appointment. It leaves that to be governed by the rules of the common law. the surrogate has no power of selection. He is to look to the will for the appointment, and, if the designation is reasonably certain, and no rule of law has- been violated, he must issue letters in accordance with the testator’s desire as expressed in the will.”

See In re Alexander’s Will, 16 Abb. Prac. (N. S.) 9. The decision of the surrogate in this case was reversed by the general term in Hartnett v. Wandell 2 Hun, 552, mainly on the ground that the surrogate had no power to issue letters testamentary in such a case. The court of appeals, however, in Hartnett v. Wandell, 60 N. Y. 346, reversed the general term,, and affirmed the decision of the surrogate, holding as follows :

“ A surrogate’s court is to carry out and give effect to the provisions of a will, and not to defeat it. The power of the testator over his estate, the care and management as well as the ultimate disposition and distribution of it, is unqualified and absolute, save only as restricted and limited by statute. Within the limits and for the time allowed by law, a testator may commit the administration of his estate and the care of his property to such individuals, or succession of individuals,, selected by himself or to be designated by others, as he-pleases.”

In Cuthbert v. Babcock, 2 Dem. Sur. 96, a testator gave to his wife, also his executrix, the power “to appoint some fit and proper person to execute this, my will, and hereby give her power so to do, and this notwithstanding any coverture she may be under; and, if she remains my widow, such appointment may be made by a last will and testament in writing, having the same obligatory force and effect as if made by me.”

In the cases cited it is seen that the testator has power to direct his executor to associate some person to act with him as co-executor, without naming the person, and the exercise of the right has been held good by the court, and this is now also provided for by sections 2640 and 2641 of the Code. Also, the testator has given authority to an executrix to name an additional executrix by her will, to carry out the will of the first-named testator, and this has been held good. Can it, then, be considered that in this case, where the provision of the will is so plain, directing that Plorace G-. l7oung shall succeed Edwin YBung as executor and trustee of this, “my last will and testament, with'all the authority and power that he -would have if nominated and appointed by me as the others now are,” the authority of the surrogate to issue letters testamentary can be questioned ? The will of Thomas Cornell provides plainly that Horace G-. Young shall succeed Edwin Young. This is a large estate, with varied and complicated interests. It was esteemed of sufficient importance upon the probate of the will of' Thomas Cornell that the widow, heirs at law, and next of kin should join in a petition for the immediate probate of the will. Thomas Cornell died, as before stated, March 30,1890, and his will was proved April 3, 1890, only live days elapsing. Any occasion for haste in the probate of the wall originally vrould seem to be equally strong and peremptory now that the estate should have a competent head to manage and control it. In view of these facts, it is deemed necessary that the court should take prompt action to protect the interests of all the parties concerned. Therefore an order may be entered directing the issue of letters testamentary to Horace G-. Young, and letters will thereupon issue to him.

Ordered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Application for an Accounting by the Administrator of Andrew Kipp, Deceased.
    (Surrogate’s Court, Ulster County.
    March, 1896.)
    Executors and administrators—Accounting—Interest in estate.
    An allegation, in a verified petition to compel an administrator to account, that petitioner was a niece o£ decedent and one of his next of kin, though denied by a verified answer, sufficiently shows that she is “ a person interested .in the estate ” (Code Civ. Proc. § 3726), so as to give the surrogate jurisdiction.
    Carroll Whittaker (Howard Chipp, Jr., of counsel), for George F. L. Kipp and Nettie E. V. Peabody; Charles Davis (Peter Cantine, of counsel), for administrator.
   BETTS, S.

—Andrew Kipp died at the village of Saugerties, in this county, on the 18th day of April, 1893, intestate. On the 24th day of April, 1893, a petition was filed in this court by William E. Kipp, of the same town, alleging that he was the only brother and heir-at-law of deceased, and asking that letters of administration be issued to him upon said estate. The petition also stated that the personal property did not exceed the sum of about $9,000. On that petition, and a bond accompanying the same, letters of administration were issued to said William E. Kipp on the 24th day of April, 1893, and appraisers of the personal estate were appointed. Ho inventory was filed. H o further proceedings were had, except the granting of an order to advertise for claims, until the lOtli day of September, 1894, when a petition was filed here by one Hettie E. Y. Peabody, of San Francisco, Cal., who alleged that she was a daughter of James Brown Kipp, deceased, who was a brother of Andrew Kipp, the deceased. In this petition she recited that the statement in the petition for letters of administration by William E. Kipp that he was the only kindred left of said Andrew Kipp was untrue; that she was a niece, and she had a brother, George F. L. Kipp, a nephew of deceased ; that the proper amount of personal property was not stated in the petition of said deceased, but that the property exceeded the sum of $9,000. And she prayed that an order might be granted to have an inventory of said estate filed in this office. Hpon that petition an order was made for the administrator to file an inventory on or before September 24, 1894, or show cause to the contrary. Various adjournments were had in that matter, until an inventory was finally filed here which showed that the amount of personal property was $20,724.21. Subsequently, and on or about the 7th day of March, 1895, a petition wTas filed here by Carroll Whitaker, attorney for said George F. L. Kipp and Nettie E. V. Peabody, asking that an appraiser be appointed to determine the amount of the taxable transfer tax, if any, in this estate. Upon such petition an appraiser was duly appointed, who has not as yet reported. No further proceedings were had in this court until the 6th day of December, 1895, when two petitions were filed, one verified by Nettie E. V. Peabody, and the other by the said George F. L. Kipp, reciting their relationship to the deceased, the same as claimed in the former petitions, and praying for a citation for the judicial settlement of the account of the said administrator, and that he should be cited to show cause why he should not render and settle said account. Upon these petitions a citation was issued to the administrator, returnable in this court December 17,1895. On the return day of the citation the administrator appeared by his attorney, Charles Davis, and filed a verified answer', in which he recited as follows :

“ That my brother, James Brown Kipp, left Saugerties in or about the year 1836, and when about 15 or 16 years of age. That within six or seven years thereafter he wrote two letters, one addressed to my mother and the other to myself, from the Sandwich Islands. That in said letters he stated that he had been on whaling voyages. The substance of which letters, beyond the statement that he was then at the Sandwich Islands, and that he had been engaged in whaling, I do not recollect. That said letters are lost. ' That shortly thereafter a person whose name I have forgotten, from the now city of Kingston, who had been on a whaling voyage, and had returned to Ulster county, informed our family that he had seen James Brown Kipp on the Sandwich Islands, and that he appeared to be in good health.”

That he had never received any other knowledge or information from his said brother. And, on information and belief, he denied that the J ames Brown Kipp mentioned in the petitions was the James Brown Kipp, the brother of the intestate, or that he was ever lawfully married, or left a child or children, and wherefore he prayed that the proceedings in this matter be dismissed.

Upon this answer it was strenuously argued by the administrator that the surrogate was ousted of jurisdiction in this proceeding, and that the result of filing this answer was to remit this alleged nephew and niece to some other court for the enforcement of their rights in this matter, if they had any. The attorneys for the nephew and niece insisted, however, that they were in the proper tribunal, and that the relief asked for should be granted, so far as the surrogate could determine the same.

It was held as long ago as the case of Harris v. Ely, reported in 25 N. Y. 138, 141, that an executor “ may be compelled to render an account though the party apptying is not entitled to a decree for the payment of any amount. * * * The rendering an account to the surrogate by an executor or administrator, and the settlement of such account, including the decree to pay over, are not necessarily one proceeding.” Section 2726 of the Code is as follows:

“ In either of the following cases the surrogate’s court may, from time to time, compel a judicial settlement of the account of an executor or administrator: (1) Where one year has expired since letters were issued to him. * * * ”

Section 2727:

“A petition praying for the judicial settlement of an account and that the executor or administrator be cited to show cause why he should not render and settle his account may be presented in a case prescribed in the last section by a creditor, or a person interested in the estate or fund, -x- -x- -x- Qn -¿he presentation of such petition a citation must be issued accordingly. * * * On the return of a citation issued as prescribed in either of the foregoing sections of this article, if the executor or administrator fails either to appear or to show good cause to the contrary, or to present in a proper case a petition as prescribed in the next section, an order must be made directing him to account within such a time and in such a manner as the surrogate prescribes and to attend from time to time before the surrogate for that purpose.”

Section 2514, subd. 11, prescribes:

“ The expression ‘ person interested,’ 'where it is used in connection with an estate or a fund, includes every person entitled either absolutely or contingently to share in the estate or the proceeds thereof, or in the fund as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise, except as a creditor.”

It is provided in section 2472 of the Code of Civil Procedure that the surrogate court has jurisdiction :

“ To direct and control the conduct and settle the accounts of executors, administrators and testamentary trustees, -x- * -x- To enforce the payment of debts and legacies, the distribution of the estates of decedents and the payment or delivery by executors, administrators and testamentary trustees of money or other property in their possession belonging to the estate. * * * To administer justice in all matters relating to the affairs of decedents according to the provisions of the statutes relating thereto.”

Section 2481 provides, among other things, that:

“ A surrogate may exercise such incidental powers as are necessary to carry into effect the powers expressly conferred.”

Section 2743, as amended, provides that: “ Where an account is judicially settled as prescribed in this article, and any part of the estate remains and is ready to be distributed to the creditors, legatees, next of kin, husband or wife of the decedent or their assigns, the decree must direct the payment and distribution thereof to the persons so entitled, according to their respective rights. 'x' * * Where the validity of the debt, claim or distributive share is admitted or has ‘been established upon the accounting or other proceeding in the surrogate’s court, or other court of competent jurisdiction, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions concerning the same.” • 1 Laws 1895, p. 400, c. 595.

“ A mere appearance of interest in the estate of a decedent is ordinarily sufficient to sustain an application, under Code Civ. Proc. § 2726, to compel a judicial settlement of the account of its representative, as where the interest of the petitioner appears to have been extinguished by a release which he attacks as void.” Reilley v. Duffy, 4 Dem. Sur. 366. “An allegation of his interest, duly verified, suffices, although his interest is disputed.” Schmidt v. Heusner, Id. 275. “ The power to determine who are the proper distributees is inherent to the power to settle an account and distribute the estate.” In Re Verplanck, 91 N. Y. 439, 450; In Re Laramie (Sup.) 6 N. Y. Supp. 175; In Re Pearsall (Sup.) 4 N. Y. Supp. 365. In Re Laramie an objection was made, and the case was litigated before the surrogate as to whether certain children cited upon the final accounting were legitimate. The surrogate determining that they were illegitimate, the objection was taken that the determination of the legitimacy of the children exceeded the power of the surrogate’s court. Upon appeal to the general term the surrogate’s decision was sustained. In Re Pearsall the facts were as follows: The will of Samuel Wood had been admitted to probate in the surrogate’s court of New York County. One Thomas W. Pearsall filed a petition for the revocation of letters testamentary issued in that estate, on the ground that the same were issued on false suggestion of fact. The petitioner, Pearsall, claimed as a vested remainderman under the provision of the ■will giving a fund to Thomas Pearsall for life, to his heirs for the life of Lewis Pearsall, and at his death to the heirs of both said Lewis and Thomas; the petitioner being, as he alleged, a son of said Lewis. The answer of the executor denied the legitimacy of the petitioner, alleging that Lewis Pearsall was not married to the mother of the petitioner, whereby the latter had no interest such as to entitle him to maintain a petition for revocation of the letters testamentary. The surrogate referred the matter to a referee to report upon the petitioner’s legitimacy, and; from this order the executor appealed. The general term denied the appeal, and sustained the order of the surrogate. It will be seen that this latter decision is almost in point with the case at bar. Jurisdiction ivas therein assumed by the surrogate, and sustained by the higher courts. I can see no real •difference in principle between that and this case. In Re Laramie, supra, there was a final accounting, and it was held that the surrogate’s court had jurisdiction to determine the legitimacy of the distributees. That is substantially the same point involved here, except in that case the administrator brought in the children by citation. Here the alleged nephew and niece are outside the door of the court, asking for admission. If they wait to be invited in by William E. Kipp, the administrator, who claims he is the only relative, they will probably never get within its portals. It is the practice of this court to order an account - filed in cases of this kind. “ The provision of the Code requiring a dismissal of the petition for the payment of a legacy or distributive share upon the filing -of a verified answer raising a doubt as to the validity of a petitioner’s claim applies exclusively to proceedings taken under that section, and has no application to a proceeding for a compulsory accounting. It is not necessary that the petitioner’s interest be established by full proof. If the petition is properly verified, the surrogate may, and ordinarily will, require the account without trying the issue of interest as between the representative and the petitioner.” Redf. Sur. Frac. (5th ed.) 767. “ It is well settled that a surrogate’s court has jurisdiction to entertain on the final accounting, or in any other proceeding where the matter is at issue, such questions as the right of a person to a legacy, * * * or whether a legatee is competent to take, or a distributee is legitimate, and other like questions.” Id. 162, 163. Jurisdiction should not be rashly assumed or sought after by a vain or ambitious court, nor declined by an indolent one. This case seems to me, so far, at least, properly within the jurisdiction of this court, and I shall entertain the proceedings. I do not decide as to whether the alleged nephew and niece' are entitled to a share in the assets belonging to this estate, but I do hold that they have a right eventually to show whether they have such an interest or not. I hold these proceedings to be under sections 2726 and 2727 of the Code of Civil Procedure. '

An order may be handed up directing the administrator to file an account of his proceedings as such on or before the 21st day of January, 1896, for the purpose of his accounting, and to attend from time to time for that purpose.

Ordered accordingly.


text:
    In the Matter of the Application for Probate of the Will of George C. Woolsey, Deceased.
    (Surrogate’s Court, Ulster County.
    July, 1896.)
    1. Wills—Publication.
    Publication of a will is shown by evidence that one of the witnesses' was the lawyer who drew the will at testator’s request, and took it to his house to be executed, and that testator requested the other witness to read the attestation clause.
    2. Same—Execution—Requesting witnesses to sign.
    A request to sign a will as a witness is established where the witness drew the will at testator’s request, and took it to his house to be executed, and the attestation clause recited that the request was made by testator.
    3. Same—Testamentary capacity—Intoxication.
    Intoxication of testator at the time the will was executed is not established by testimony that the witness took him three bottles of whisky three or four hours before the will was executed, and that he was drunk on that day, but the witness did not see him after he delivered the whisky ; other witnesses, who were with testator when the will was executed, testifying that he was then sober.
    C. Meech Woolsey (Eldoras Dayton, of counsel), for proponent ; Brinnier & Newcombe and John F. Cloonan, for Anna C. Woolsey, a niece; A. D. Lent, for William H. Woolsey, a nephew of deceased.
   BETTS, S.

—George C. Woolsey died in this city on the 15th day of April, 1896, having, on April 11th, executed a paper writing which is offered here for probate as his last will and testament, by which he left all liis property to his brother, C. Meech Woolsey, and made him the executor thereof. Objections were filed by a niece and nephew thereto, and a great deal of evidence has been taken. The evidence for the contestants has been directed towards three points: First, that the will was not properly executed in accordance with the statute; second, that the testator was drunk at the time of its execution; third, that he was incompetent to ipalte a will, by reason of the effects upon him of drink, illness, and of his general incompeteifcy. I will briefly consider these points, and the conclusion that I have come to in regard to them.

As to the first point, it is claimed that the testator did not declare the instrument in question to be his last will and testament, and did not request ■ the witnesses to subscribe their names thereto as such. The evidence is that on the day on which this paper was executed the deceased gave to Edwin D. Brandow, a lawyer of this city, a brief memorandum, and requested him to draw his will therefrom, and to “ see to it today.” This was about 2 o’clock in the afternoon. Brandow took the paper to his office, drew the will upon a form, and returned to Woolsey’s house at about 7 or 8 o’clock in the evening. On his way there, Brandow met Francis II. Griffith,, a neighbcr of Mr. Woolsey, and the two went in together.. Mr. Brandow gave Woolsey the paper, which he read. Woolsey then signed the paper in the presence of both of the witnesses, and handed it to Griffith, with a request, as Griffith says, that he read the attestation clause, and sign it or verify it. The attestation clause is very full, and is as follows:

“We, whose names are hereto subscribed, do certify that George C. Woolsey, the testator, subscribed his name to this instrument in our presence, and in the presence of each of us, and at the same time he declared in our presence and hearing that the same was his last will and testament, and requested us, and each of us, to sign our names thereto as witnesses to the execution thereof, and which we hereby do in the presence of the testator and of each other, the day of the date of the said will, and have written opposite our names our respective places of residence.”

Brandow testified that Woolsey said to Mr. Griffith, “ Witness my will,” or “ This is my will.” This is, in substance, the entire testimony as to the .declaration of deceased.

It is evident that Brandow knew that this was a will, because he had drawn it, and gone there for the express purpose of having it executed. It is also evident that Griffith knew it was a will, because he, at the request of the deceased, read the attestation clause. The statute is:

“Such subscription shall be made by the testator, In the presence of each of the attesting witnesses, or shall be acknowledged by him, to have been so made, to each of the attesting witnesses. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament.”

It is held (Gilbert v. Knox, 52 N. Y. 125) that:

“ The object of this provision is to secure the testator against fraud and imposition, and the knowledge that the instrument which the witnesses are called upon to attest is a will must be communicated to them by the testator at the time of his subsbription or acknowledgment; and knowledge derived from any other source, or at any other time, of the same fact, cannot stand as a substitute for the declaration of the testator. But the fact that the testator was fully apprised of the testamentary character of the instrument may be considered in aid of proof tending to establish a publication.”

It is held in Lane v. Lane, 95 N. Y. 494, that no particular form of words is required or necessary to effect a publication ; and in Re Hunt, 110 N. Y. 278; 18 S. R. 118, that a substantial compliance with the requirements of the statute as to execution and attestation is sufficient. From the testimony in this case, and under the above decisions, I hold the testator to have sufficiently declared this to be his last will and testament.

As to the request for the witnesses to sign by the testator, the statute is as follows : “ There shall be at least two attesting witnesses who shall sign their names as witnesses at the end of the will at the request of the testator.” Griffith was requested to sign, and requested to read the attestation clause. Brandow did not testify that the deceased requested him to subscribe as a witness, nor was he asked the question. Brandow signed the attestation clause, which recites that the request by "Woolsey was made. In Hutchings v. Cochrane, 2 Bradf. Sur. 295, it was held that a request to sign as witnesses may be implied from the acts of the parties. In that case one of the subscribing witnesses handed the deceased the will, stating that he came “ to witness her sign her will,” and the testatrix, having read it, declared it to be her will, signed it, and both witnesses subscribed their names in her presence. Ho direct request was proved. In Coffin v. Coffin, 23 H. Y. 9, a request was made to only one of the witnesses to sign as a witness, and it was held to be a good attestation, the court holding:

“ How, the statute, it is true, declares each witness must sign on such request; but the manner and form in which the request must be made, and the evidence by which it must be proved, is not prescribed. We apprehend it is clear no precise form of words, addressed to each of the witnesses at the very time of the attestation, is required. Any communication importing such request, addressed to one of the witnesses in the presence of the other, and which, by a just consideration of all the circumstances, is intended for both, is, we think, sufficient.”

In Peck v. Cary, 27 N. Y. 9, it is held that the object of the statute is that an officious signing by the witnesses, without any privity with the testator, should not be recognized as sufficient. In Re Helson’s Will, 141 N. Y. 152; 56 S. R. 678, the proof was substantially as follows : The will had been drawn and witnessed by a partner of the deceased, and this partner had predeceased Helson. The remaining subscribing witness, the coachman of Helson, denied that he had ever been requested to sign by Helson as a witness, or that Helson had acquiesced in the request by Baker, the other subscribing witness, that he should sign. The will was, however, admitted to probate. It was held that, both Helson and his partner, Baker, being lawyers, well knowing wha "was needed for the due execution of the will, it was not a reasonable supposition that they neglected any essential requirement. In that case the attestation clause ¿lid not contain the usual paragraph that the witnesses signed at the request of the testator. In Re Cottrell’s Will, 95 N. Y. 339, it is held that the attestation clause is always some proof of the due execution of the will. In this case we have the request from Woolsey to Griffith, in the presence of Brandow, Brandow being there at the request of Woolsey to have the will executed. Woolsey was a lawyer by profession. I hold that, in the spirit and ineaning_ of the decisions cited, and of the statute, there was a sufficient request to Brandow for him to sign as a witness.

As to the second point: Without going into the testimony in detail, the evidence is convincing that the testator was not drunk at the time the will was executed. Both subscribing witnesses say that he was competent to make a will. Henry A. Wolfer, his nephew, and Miss Flannigan, the housekeeper, both testify that he was sober on Saturday. Hesse only says that he was drunk on Saturday. He did not see him within apparently three or four hours from the time the will was executed. Hesse says that he took the deceased three bottles of whisky on the day the will was executed, the last being about 3 or 4 o’clock. The testimony is that the will was executed between 7 and 8 o’clock, or perhaps a little later. In order to show such drunkenness, or such condition from drinking intoxicating liquors, as would avoid the will, the contestants must show that the deceased was intoxicated, or that his understanding was clouded or reason dethroned by actual intoxication, at the exact time the will was executed. Peck v. Cary, supra; In re Halbert’s Will, 15 Misc. Rep. 308; Van Wyclc v. Brasher, 81 N. Y. 260.

How as to the general question of incompetency of deceased. The contestants’ witnesses testified to many acts of the deceased that they considered irrational. Among the most conspicuous are allowing some or all of his real estate to become incumbered by taxes, and one piece at least to be actually sold. These "witnesses also testified that they knew nothing as to the amount of money the deceased had, or whether he was able to meet those taxes or not, but largely predicated their assertions on the assumption that he had the means. The uncontradicted testimony is that he owned a great deal of real estate, all or the most of it being heavily incumbered by mortgages and taxes. He also had frequent disputes with city officials as to special assessments, and for the actual or alleged violations by himself of city ordinances. On one or more occasions he was arrested for not keeping the snow properly cleared from the sidewalk in front of some of his real estate. He did not seem to be entirely pleased with this, and expressed his disapprobation of the officers, the ordinances, and the entire situation, with much more vehemence than discrimination. It will hardly do for this court to hold that a man who loses his temper on similar occasions to some of those testified to here is per se irrational. If that were done, few citizens, I think, would care to leave the disposition of their property to the justice or discernment of the surrogate’s court. Many instances of peculiar actions, doings, and sayings of deceased were testified to. A man of nearly 70 years of age, he had for many years been without any regular occupation save caring for his large real-estate interests. He owned the Mansion House (or an interest therein), numerous tenement houses, and the greater portion of what has been long known as “ Woolsey’s Commons,” in this city, a farm near Rosendale, and wild lands in the Catskills, and other real estate. This real estate and the business connected therewith brought him in contact with a great many people. Accustomed to spending much of Ms time at the Mansion House, and on account of his varied interests, he had a very extensive acquaintance. He was at times of an irascible disposition, which was increased in the latter part of his life by excessive drinking, and there is no doubt that at the time the will was executed he was in a very feeble condition. lie, however, continued to do his own business until the Tuesday, as he died Wednesday morning. lie literally died in the harness. He closed a real-estate deal on that Tuesday that had been running for several months. He also, about the time the-will was executed, and during his last sickness, gave some of his friends and relatives small mementoes, and was endeavoring to and did close up several matters of - business, showing that he realized that his end was near. His wife was dead, and he lived with a nephew and his housekeeper. He thought a great deal of his real estate, and wTent to the commons early and late, and traveled and retraveled over it. About as pathetic a scene as was ever related in this court, which abounds in them, was his being taken by Ms nephew, the day after the will was executed, the whole length of the commons. It was on the last Sunday of his life, when he apparently ltnéw that death was very near. Unable to spend more than a half hour out of doors, his last visit was not to relative or cherished friend, but to the commons, concerning which the testimony shows that he had made so many and varied plans that some of the witnesses thought him irrational because he sold a building lot where he had at one time proposed to make a street. The only testimony as to Ms mental condition that is at all serious is that of a pliysician, Robinson. Robinson was first called Sunday, the 5th instant, and did not visit him again until Saturday, the 11th, the day the will was executed. Robinson could not have considered Woolsey’s condition very serious, or he would not have let six days intervene between his professional calls. He testified to his interviews with deceased on the evening of Saturday, the 11th, went over all the conversation he said he could recollect, and found nothing in it that was irrational. His conclusion as to that conversation corresponds with my own. But in another portion of his evidence he says that deceased did not have a lucid interval from the 5th of April until his death, the 15th. His testimony is not consistent with itself. He also admits, and Wolfer corroborates him, that certain statements made to Wolfer and the proponent were not consistent with his evidence on the trial,-—in fact, flatly contradict it. He was paid $5 by Woolsey on the day of his first call, and he considered that irrational, although Woolsey owed him for two other visits about a year ago. The testimony of the other physicians, being predicated on hypothetical questions, which questions were based on the testimony offered by contestants and on the testimony of Dr. Robinson, I do not consider as throwing much light on the actual condition of deceased at the time the paper offered here was executed. Several witnesses, however, were sworn who had had actual business transactions with the deceased just befo're, about the time, and just after the making of the will. They not only declare the acts and transactions they detail as rational, but give the transactions themselves, which show the deceased to have been capable of protecting his own interests. I have read over very carefully the entire evidence, and I gave it close attention while it was being taken. A further discussion would serve no good purpose. It is voluminous,—over 400 pages of typewritten matter. From a conscientious review of it, I can come to no other conclusion than that George C. Woolsey was of sufficient understanding to comprehend the amount and extent of his property, and who were, or might be, the objects of his bounty, and to whom he desired, to leave his property, and that he effectuated his testamentary intentions. Van Guysling v. Van Kuren, 35 N. Y. 70; Peck v. Cary, supra; In re Peck’s Will (Sup.) 17 N. Y. Supp. 248 ; In re Clearwater’s Will (Surr.) 2 N. Y. Supp. 99.

A decree admitting his will to probate may be handed up in .accordance with this memorandum.

Decreed accordingly.


text:
    In the Matter of the Settlement of the Accounts of the Executors of the Will of Charlotte H. Bener, Deceased.
    (Surrogate’s Court, Ulster County.
    July, 1895.)
    1. Testamentary trustees—Commissions—Jurisdiction of surrogate. The surrogate’s court has no jurisdiction to order payment of commissions to a testamentary trustee by his successor, where the trustee voluntarily paid over the funds without deductions for his commissions.
    "3. Same—Accounting—Costs.
    Costs of accounting by a testamentary trustee who had been removed, and by the executor of his deceased co-trustee, will not be allowed out of the estate, where the accounting was merely an incident to such death aud removal.
    Lounsbery & Jenkins, for James E. Ostrander, a former executor, who was removed by the surrogate; Kenyon & Sharpe, for Charles W. Deyo, trustee appointed by the surrogate, and for Ann E. Hoornbeck, a life beneficiary; John G. Yan Etten, for Louise Schoonmaker, executrix, etc., of Augustus Schoonmaker, deceased executor named in the will; John F. Cloonan, special guardian for Charity B. Hoornbeck, an infant remainderman.
   BETTS, S.

—Charity H. Bevier died in this county, March SI, 1878, leaving a last will and testament, in and by which, .she appointed Augustus Schoonmaker, Jr., and James E. Ostrander the executors thereof, which will was duly probated,, and the executors entered upon the discharge of their trust. The will contains, among other provisions, the following :

“ Third. I give and bequeath to my executors, hereinafter1 named, and to the survivor of them, the sum of three thousand dollars, in trust, to hold, manage, and invest the same, and to pay over the interest thereof semi-annually to my niece Ann Elizabeth Hoornbeck during her natural life; and, after her decease, I give and bequeath the one-half of said sum to the children of iny nephew, Abram A. Hoornbeck, and the other half to GeorgeHoornbeck and Jane Hoornbeck, the children of my nephew Cornelius II. Hoornbeck, deceased; but in case the said Aun Elizabeth shall become free and discharged from debts and liabilities at any time during her life, either before or after my decease, then it is my will and desire, and I so direct, that the said "sum given in trust to my executors as above mentioned be paid over to her and belong to her, and be subject to her control and disposal.”

The will also contained a residuary clause dividing the estate not specifically bequeathed into six parts, and bequeathing “ one-sixth thereof the same in all respects as specified in the third clause of this will in regard to the sum named in that clause.” A decree was entered in this court on the 9th day of March, 1880, settling the accounts of the executors under said will, and directing them to hold in their hands the balance of the estate as follows :

“One-sixth thereof, being the sum of $929.90, to.be held by-said executors under the provisions of said will in trust for Ann Elizabeth Hoornbeck, as directed by such will; and it is further ordered that the said executors continue to hold in trust for Ann Elizabeth Hoornbeck, under the provisions of said will, the bond and mortgage now held by them for that purpose for the sum of $3,000.”

On October 11, 1894, a petition was filed in this court by Ann Elizabeth Hoornbeck, the life beneficiary under said will, reciting that Augustus Schoonmalcer, Jr., was dead, leaving a last will and testament, in which Louise Schoonmalcer, his wife, was named as sole executrix; that said will had been proved, and Louise Schoonmaker had entered upon the discharge of her duties as executrix; and that she had in her-possession and custody the trust moneys and securities belonging to said estate, of which Ann Elizabeth Hoornbeck was entitled to the income. The petition also recited that James E... Ostrander, one of the executors of the will of Charity H. Bevier, was, on November 30,1892, at a court of oyer and terminer held in and for the county of Ulster, convicted of an infamous offense, and sentenced by said court to be "confined at hard labor in state prison at Dannemora for the term of seven years, and asked for a decree revoking letters testamentary issued to said James E. Ostrander, and that he be removed both as executor and as trustee under the said will, and that, some competent person be appointed in his place. Citations were duly issued upon that petition, directed to all the persons interested, and such proceedings were had that on the 12th day of November, 1894, a decree was entered in this court removing said James E. Ostrander as executor and trustee, for the reasons cited in the petition and decree, and appointing Charles W. Deyo, of this city, trustee under the said will in his place. It appeared upon this hearing that shortly after the financial troubles of the Ulster County Savings Institution, which led to the arrest and conviction of Ostrander, the funds and securities remaining in his hands as trustee under said will were turned over to Augustus Schoonmaker, his co-executor and trustee thereunder. So the decree appointing Charles W. Deyo provided that, upon his filing a bond as therein directed, “the said Louise Schoonmaker, as executrix of the last Avill and testament of Augustus Schoonmaker, deceased, is hereby directed to deliver over to the said Charles W. Deyo the said trust funds and securities.” On March 20,1895, a petition was filed in this court by James E. Ostrander, the removed executor and trustee, asking that his accounts might be judicially settled, and that he might be paid the sum of 8349.91 by the neAV trustee, Charles W. Deyo, for his commissions for acting as executor and trustee subsequent to the final accounting had in 1880, and up to the time of his removal. Upon this petition citations Avere issued bringing in all the interested parties. Objections Avere filed to the account, and against any commissions being allowed to Ostrander or any costs of the proceeding by the special guardian, and also by Charles W. Deyo, trustee, and Ann E. Iloornbeclt, the life beneficiary. The attorney for Louise Schoonmaker, executrix of Augustus Schoonmaker, appeared in the proceeding, and, Avhile not insisting that commissions be alloAved her, did ask that the accounts of Augustus. Schoonmaker as such executor and trustee be judicially settled, and that costs of this proceeding be alloAved the said executrix. The various questions presented Avere Avarmly contested on the-trial, and elaborate briefs presented by all parties. It appearing upon the hearing that the executors had had their commissions upon the final accounting in 1880 upon the $3,000 secured by bond and mortgage, and also upon the principal sum on deposit in the Ulster County Savings Institution, it Avas stipulated by Ostrander’s attorneys that no claim should be made here for such commissions. Such corrections Avere made in the account upon the hearing that it is noAV claimed on behalf of Ostrander that he is entitled to commissions only upon the sum of $2,438.94 of income from said estate, instead of upon the sum of $7,348.15, as claimed in the petition; and this court, is asked to make an order or decree directing the present trustee to pay the commissions upon that sum to him.

The surrogate’s court is one of limited jurisdiction. It can only exercise such jurisdiction as has been specially conferred by statute, together with such incidental powers as may be requisite to eif ectually carry out the jurisdiction actually granted. Riggs v. Cragg, 89 N. Y. 489, and cases there cited. No funds remain in the hands of Ostrander, or were in his hands at the time he was removed from office, by which he could retain, the amount of his commissions, if any commissions were due him. He voluntarily paid to the life beneficiary under the will the entire income from the estate, making no deductions whatever for his commissions. Charles W. Deyo, by the decree of this court, was appointed trustee under said will of Charity H. Bevier, and must carry out the provisions of the will as to payment of income, which is to pay the same to said Ann Elizabeth Hoorn beck. Any contrary direction to him now as to the disposition of the income would be in opposition to the provisions of the will, and also to the decree of this -court, which has not been opened, vacated, or altered. Commissions cannot now be allowed Ostrander payable out of the principal of the estate, for the reason that, if he is entitled to any commissions at all, it is from the income, and neither the surrogate’s court nor any other court would have authority to pay these commissions from funds belonging to the remainder-man.

It Avas held in Re Underhill, 117 N. Y. 471,27 S. R. 720, by the court of appeals, Judge Peckham Avriting the opinion, that where a surrogate’s decree shoAAred that an executor had overpaid a legatee, there Avas no jurisdiction in surrogate’s court to direct the repayment by said legatee to the executor of the ■sum so overpaid, orto direct the entry of any judgment against .said 0Arerpaid legatees in favor of the executor. It was also held by the court of appeals in Re Lang, 144 N. Y. 275, 63 S. R. 694, decided this year (Chief Justice Andrews Avriting the opinion), that where one executor had OArerpaid another executor as a legatee the sum of $1,756.25, $93.75 of Avliich were commissions, and it appearing that there Avere no assets remaining in the hands of the accounting executor by Avhich he could obtain his commissions, the surrogate’s court has no jurisdiction to direct the repayment of that sum by the legatee to the executor who instituted the proceedings. It Avas said in this case, as in the case of Hnderhill, that, if it Avas desired that the surrogate should have a broader jurisdiction, it must be conferred by the legislature.

Those decisions Avould seem to be decisive of the question •submitted to me as to the authority and jurisdiction of this court to direct any commissions whatever to be paid to James E. Ostrander by Charles W. Deyo, the present trustee. I can see no difference in principle in the application made here from that which might be made by any executor against an overpaid legatee for the recovery of said overpaid legacy, which a long line of decisions holds that the surrogate has no jurisdiction to compel the repayment of. If any right to the payment of commissions upon the income exists, it must be asserted in another forum, with jurisdiction broad enough to enforce its decrees. It appears from the evidence that, from the time that Ostrander turned over the securities to the late Judge Schoonmaker, Schoonmaker retained his commissions, .and no claim is made now by his executor for any commis.sions due him.

As to the matter of costs of the proceeding: It was held in •an early case (In re Jones, 4 Sandf. Ch. 615), by the vice-chancellor, decided in June, 1847, that, where a trustee resigned from his duties previous to the completion of his trust, the resigning trustee must pay the costs of the petition and of the appointment of his successor, and be allowed no commissions on the capital of the trust property; and this decision has been followed ever since. It is urged strongly on the part of the cestui que trust that Ostrander has already caused the estate considerable expense; that he did not resign, and proceedings were necessary to remove him, the cost of which proceeding was paid by the beneficiaries; that, if it is desirable that his account should be settled and adjusted, it should be done at his own expense. In a case decided in the general term of the supreme court in 1892 (In re Dixon, 21 3sT. Y. Supp. 343) it was held, the executors asking to be discharged, that “ it was no more than just that they should not charge the estate with a special accounting. The executors had good reason to be discharged on their own request without fulfilling the trust, but it was equitable that their application should not cost the funds for an account which was only an incident to their discharge on their own request.” If an executor or trustee who simply asked to be relieved from the trust cannot be so relieved without paying the costs of an accounting, this would seem to be a much stronger case, for no costs are allowed from the estate where the executor is removed by reason of his having voluntarily placed himself in such a position that he could not fulfill the duties of the trust committed to him. It makes little difference in this proceeding that no mismanagement of these funds was shown upon Ostrander’s part. He is unable to complete the trust. The newly-appointed trustee will eventually have to have a judicial settlement of his accounts, the costs of which will properly be borne by the estate. It should not be subjected to double and unnecessary .costs:

A decree may be handed up settling the accounts of the late executors and trustees in accordance with the evidence submitted, and providing that no commissions can be allowed by this court in this proceeding to James E. Ostrander, and denying the application on the part of his attorney and the attorney of Louise Schoonmaker for costs from the estate, and allowing the special guardian the sum of $50 for his costs, and the stenographer the sum of $15, payable from funds on deposit in the Ulster County Savings Institution.

■ Decreed accordingly.


author: PATTERSON, J.

text:
    Charles Mulford et al. v. David M. Gibbs.
    (Supreme Court, Appellate Division, First Department.
    October 23, 1896.)
    Exemptions—Supplementary proceedings.
    Moneys due from customers to a person engaged in retailing ice, in which business he employs two ice carts and several men, are not “personal earnings” (Code Civ, Proc. § 2463), so as to be exempt in supplementary proceedings.
    Appeal from special term, New York County.
    Supplementary proceedings by Charles Mulford and others against David 1VÍ. Gibbs. From an order denying a motion to punish the judgment debtor for contempt, the judgment creditors appeal.
    Robert Godson, for appellants; Charles J. Hardy, for respondent.
   PATTERSON, J.

—The question in this case comes up on an application to punish a judgment debtor for contempt for an alleged violation of an injunction contained in an order in supplementary proceedings. The judgment debtor was engaged in the business of buying ice and selling it at retail to, various customers. In his business he owned two ice carts', five horses, and employed several men to assist him. He is a married man, with a wife and children, three of whom and his wife were dependent upon him for support. At the time the order in supplementary proceedings was served upon him,, there was due him from his customers some six or seven-hundred dollars, which he collected, and, notwithstanding the-restraint in the order, paid to ice merchants who had supplied-him with ice. It was shown on. his examination that the moneys he received from his business did not more than suffice to pay his bills for the ice he bought, the wages of his employ és, the cost of maintenance of his horses, and the support of his, family. The court below held that the judgment debtor was not punishable as for a contempt, because he came within the operation of that provision of the Code of Civil Procedure (section 2463) which exempts the personal earnings of a judgment debtor accrued within 60 days before the institution of the supplementary proceedings, the accounts for ice having accrued within that period. The only question involved here is as to the moneys being earnings of the character referred to in the statute. This statute is one which should be liberally construed, but, giving it such construction, we are unable to-see how these moneys can be regarded as earnings from personal services. If it is to be so construed in this case, the net product of the business of any person in trade must be put in the same category. There are cases which hold that the exemption applies not only to those who ivork for day’s wages, but to teachers, and those who conduct a business in which they employ little or no labor; but this is a case in'which a judgment debtor buys and sells merchandise, has an equipment appropriate to the conduct of his business, a business which is capable of increase and extension, in which he occupies the position of master to servants, and uses the product of his business in the payment of wages and in the maintenance of a business establishment. If the exemption provided for in the statute is to extend to such a person, it may well be extended to every merchant or dealer who takes any part in the conduct of his own business, and so be said the net product of the business of such a merchant or dealer is to be construed, in a legal sense, as earnings. It seems to us" that the exemption of the statute was not intended to apply to such a case. The act of the judgment debtor was such as to impair or defeat the judgment creditor’s right sought to be enforced through the supplementary proceeding, which is a special proceeding. The debts due the judgment creditor were collectible by a receiver, and by him could be applied to the payment of the judgment.

The order should be reversed, with costs, and the motion granted.

All concur.


author: BROWN, P. J.

text:
    Charles H. Judd v. Herbert B. Fellows.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 20, 1896.)
    Landlord and tenant—Rent—Occupation by lessor.
    A claim by a lessee against the lessor for retaining possesion of part of the demised premises may be set oif against the rent.
    Appeal from trial term.
    Action by Charles H. Judd against Herbert B. Fellows. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial, defendant appeals.
    A. M. & G. Card, for appellant; F. S. Barnum, for respondent.
   BROWN, P. J.

—The complaint in this action sets forth two causes of action : First, for a balance due upon a contract for the sale of merchandise consisting of corn, oats, feed, groceries, etc.; second, for the rent of a building for one year, which was leased by the plaintiff to the defendant. The answer substantially admitted the facts set forth in the complaint, but the defendant alleged therein that the plaintiff agreed to sell to him, in addition to the merchandise above mentioned, a coal business which he carried on at West Patterson in Putnam county, and that defendant was to take the stock in both businesses at the market price, after the same had been inventoried. It was further alleged that the stock in the feed and grocery business was inventoried and delivered-to the defendant, but. that the plaintiff refused to inventory the coal, or deliver the coal business to the defendant, and damages were claimed for such breach of the contract. It was further alleged that the defendant agreed to pay $260 per year for rent of the premises-for the purpose of carrying on said feed and coal business, but that the plaintiff retained one-half of the said premises for his own use, and that the rental value of the premises actually occupied by the defendant ivas only $125. In reference to the contract the defendant testified as follows:

“The arrangement -was made between us that we should inventory the stock on hand at the market price; that the goods be delivered to me, I paying the fair market price for all of them, take possession, and run the business for one year. I was also to have the postoffice. This included the building, the feed, the groceries in the building, the postoffice, the coal Avhich is on the premises right on the same track, and the scale connected Avith the coal business. I was to have the Avliole thing for $250, and the goods at the market price. After Ave had made the arrangements, we commenced to take inventory of the feed, and Ave Avent along counting the bags Avith feed in, estimating the Aveight as given in the bag. * "x" * After taking the inventory of the feed there Avas some time before I could get another moA^e in regard to anything. I Avas ready and spoke of it often. "x" * * I then asked him for inventory of the coal, and he Avas not ready for that, and he Avished me to wait for a time, and I Avaited. I had then taken possession of the store and feed business, including the postoffice. He Avanted me to Avait about the coal business. He was not ready to give it to me then. He said lie would some time later. He carried that idea to me. I asked him for it after that,—more than once,-—and he finally said that I could not have it. lie did not say that until some time in the fall. BetAveen April and the fall he kept putting me off, and I did not luwe it. I Aimrked there during that year in the coal business, and there Avas about one thousand tons of coal sold. I am familiar Avith the coal business there.”

In the charge to the jury the court excluded from their consideration the claim for damages for the breach of the contract in failing to inventory the coal and deliver the possession of the business to the defendant, and also the claim for abatement on the agreed rent of the building; and it refused to charge the jury, upon the defendant’s request, that the defendant was entitled to compensation for the part of the building occupied by the plaintiff, and to the refusal to charge the defendant took an exception. We are of the opinion that the ' testimony Avas such that the jury might have found that the plaintiff, during the Avhole year for Avhich he claimed to recover rent, retained and occupied a substantial part of the building; • and for such use and occupation the defendant clearly had a valid claim against the plaintiff, which he was. entitled to offset against the rent stipulated in the agreement. Precisely what part of the building was occupied by the-plaintiff, and what the value of such use and occupation was,, was for the jury .to have determined, under proper instructions, from the court, and it was error for the court to withdraw this claim entirely from their consideration. For the alleged breach of the contract arising,out of the refusal to deliver the coal and the coal business, the defendant failed to prove that he had sustained any damages. The questions asked, and excluded by the court over the defendant’s objection, and. which related to this branch of the case, did not, we think, bring the case within any rule of damages that was applicable thereto. Sufficient was, however, shown to indicate that there may exist a right to recover for such breach of the contract,, should the jury find the contract to be as claimed by the defendant, and upon a new trial the'defendant may be able to supply the testimony which would be essential to his right to recover.

For the errors pointed out, in refusing to submit to the jury the claim for the use and occupation of that part of the building occupied by the plaintiff, the judgment must be reversed,, and a new trial is ordered, with costs to abide the event.


text:
    Franklin G. Thomas v. Dora M. Thomas.
    (Supreme Court, Appellate Division, First Department.
    October 23, 1896.)
    1. Pleading—Stating single cause of action.
    A complaint to set aside two deeds and the probate of a will states only one cause of action, where it alleges that both deeds and the will were obtained by undue influence, in the furtherance of a design to secure to defendant the property of plaintiff’s father.
    3. Equity—Jurisdiction—Setting aside will.
    The rule that equity will not take jurisdiction to set aside a will at the instance of an heir does not apply where an action is brought to set aside deeds and a will relating to the same real estate on the ground that they were procured by undue influence, and as part of a scheme by defendant to secure the property of plaintiff’s father.
    3. Wills—Action to determine validity op probate.
    An heir is a “ person interested in a will,” within Code Civ. Proc. § 3653a, authorizing actions to determine the validity of probate.
    Appeal from special term, New York County.
    Action by Franklin G. Thomas against Dora M. Thomas as executrix. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals.
    William R. Martin, for appellant; Theo. H. Friend, for respondent.
   PATTERSON, J.

—The justice at special term sustained a demurrer to the complaint in this action, which was brought to avoid two deeds and to set aside the probate of a will. It was held that two causes of action were improperly united, but it is distinctly alleged in the complaint that both the deeds and the will were obtained by undue influence, and in furtherance of a design to secure to the defendant, Dora M. Thomas, the property of the plaintiff’s father, and in effect to induce him to disinherit his children. Upon the allegations of the complaint, there is but a single scheme set forth, namely, a fraudulent' purpose to secure property, in furtherance of which scheme the execution of the deeds and of the will was procured. That a considerable interval of time elapsed between the first and the last steps in the perpetration of this alleged fraud does not affect its inherent quality, or the entirety of the cause of action. If the fraud existed, every step taken to consummate it was part and parcel of it.

It is urged further, by the respondent, that the suit cannot be maintained to set aside the will and its probate, upon the well-recognized principle that courts of equity will not take jurisdiction merely to set aside a will at the instance of an heir at law, for the reason that, probate of a will as to real estate being binding on an heir at law presumptively only, his proper remedy is to test the validity of the will by an action in ejectment. But this rule has exceptions, as is pointed out in Anderson v. Anderson, 112 N. Y. 104, 20 S. R. 344, and in Brady v. McCosker, 1 N. Y. 214. We think the case at bar furnishes one of the exceptions to the rule invoked by the respondent. The suit is brought by an heir at law, substantially charging that he has been defrauded of his inheritance; that there are instruments valid on their face, the execution of which has been fraudulently obtained. That a court of equity has jurisdiction to nullify the deeds is not disputed. The deeds and the will refer to the same property and to the same title. Having jurisdiction of the action to set aside the deeds, the plaintiff brings into the action another instrument which it becomes necessary to have set aside if he is to obtain any benefit of a decree, to make which the court, it is admitted, has ample authority, and this additionally impeached instrument was one procured to fortify the title made by the deeds. The jurisdiction attaching for one purpose connected with the fraud, it may attach for all, and bring the whole subject of the one fraud, with all its incidents, before the court, so that the rights of the parties may be settled in one suit, without multiplicity of actions, and that a complete remedy may be afforded.

But, even if this consideration is not conclusive, we are of opinion that under the Code of Oivil Procedure the plaintiffs has a right to maintain this suit as he has framed it. Air-action to set aside the probate of a will is authorized by section 2653a of the Code referred to. It enacts thht within a certain time any person interested in a will or codicil admitted to probate in this state may cause the validity of the probate thereof to be determined in an action in the supreme court. The precise point as to the interpretation of the words “ any person interested in a will,” as they are used in the statute, was considered in the case of Snow v. Hamilton, 90 Hun, 161; 35 U. Y. Supp. 778, and it was held that they did not relate exclusively to a person named in the will, but included heirs at law and next of kin, and that any other construction would confine the remedy provided by the statute to beneficiaries under the will, and that such a construction is altogether too narrow. We think the views expressed in the case cited contain a correct interpretation of the statute.

The judgment and order appealed from should be reversed, with costs, with leave to the defendant to answer within 20 days on payment of costs.

All concur.


author: PER CURIAM,

text:
    Annie Gamble v. William F. Lennon.
    (Supreme Court, Appellate Division, First Department.
    October 23, 1896.)
    Appeal—Dismissal—Rules op court—Failure to file printed case.
    An appeal will be dismissed on appellant’s failure to file the printed case within the time allowed by court, after default in filing the same within the time required by the rules of court, without excuse, or attempting to secure an extensionmf time.
    Action by Annie Gamble, as administratrix, etc., against William F. Lennon. There was a judgment for plaintiff, and defendant appeals.
    Grossman & Vorhaus, for plaintiff; David M. Neuberger, for defendant.
   PER CURIAM,

—The defendant was in default for failure to file the printed case at the July term, and a motion to dismiss the appeal heard at that term was denied upon condition that the printed case be filed and served by the 31st day of August. This was done as a matter of favor to the appellant, although he ivas then in default, and strictly the plaintiff was entitled to have the appeal dismissed. At that time it appeared that the appellant, although in default, had made no effort to procure an extension of his time to file and serve the printed case, which he might easily have done under the rules, had he been able to show any good reason for it. After the 10th of September—to which date his time to file case had been extended by stipulation—he was again in default, and again he permitted his default to stand without any effort to procure an extension of the time, relying upon the good nature of his adversary or of the court to permit him to escape from the difficulty in case another motion should be made to dismiss his appeal. His reliance has proved a broken reed. While the court is inclined to give a party every reasonable opportunity that his appeal may be heard, yet there should be some diligence by attorneys to enable the court to relieve them. In this case nothing of the kind has been made to appear. It is a pure instance of neglect to do the thing which was prescribed in apparent reliance upon the dislike of the court to enforce rigidly the rúles which have been made for the protection of suitors. It is impossible to lay down a hard and fast rule to-be applied to such cases. This much may be said : That where a party is likely not to be able to prepare his case within the time required by the rules, he should procure an extension of time if he has any good reason for asking for it, and if he does not do so an inference will be drawn that he had no grounds upon which to' make such an application, and, unless, that inference can be rebutted, not only by proof of good grounds for the delay, but by giving reasons why an application for the extension of time was not made, he stands in great jeopardy of having his appeal dismissed.

The motion to dismiss the appeal in this case is granted, with $10 costs.


author: VAN BRUNT, P. J.

text:
    James Talcott v. National Credit Ins. Co.
    (Supreme Court, Appellate Division, First Department.
    October 23, 1896.)
    Indemnity Bond—Construction.
    A bond was conditioned to indemnify plaintiff against losses on sales during a certain period by reason of the insolvency by legal process of any buyer to whom goods should have been “sold and delivered during the period of the bond. * * * or by reason of any judgment or decree of court obtained for goods so delivered within the said period of the bond upon which execution should have been returned unsatisfied.” Held, that the indemnity did not cover losses on sales, made during the specified period, where judgment for the price was not recovered until afterwards.
    Action by James Talcott against the National Credit Insurance Company. A verdict was rendered in favor of defendant, and plaintiff moves for a new trial on exceptions ordered to be heard by the appellate division in the first instance.
    T. G. Strong, for the motion; R. W. Peckham, Jr., opposed.
   VAN BRUNT, P. J.

—This action was brought to recover-$2,139.80, claimed to be due under a bond issued by the defendant, then known as the American Credit Indemnity Company, in March, 1892. By its terms the operation of this bond commenced at noon on the 31th of March, 1892, and ended at noon on the 11th of March, 1893. The condition of the bond,, after reciting the fact that the plaintiff had been engaged in business, contained a covenant and agreement upon the part of the American Indemnity Company with the plaintiff that, in case the plaintiff should suffer losses in his business during the period of the bond (viz. between the 11th of March, 1892, and the 11th of March, 1893) by reason of the insolvency by legal process of any party or parties to whom the party of the second part (the plaintiff) should have “ sold and delivered goods during the period of the bond, * * * or by reason of any judgment or decree of court obtained for goods so delivered within the said period of the bond upon which execution should have been returned unsatisfied, over and above said losses,” etc., that it would indemnify the plaintiff as stated in said bond. The plaintiff covenanted to notify the company within 10 days after receiving information of any insolvency or loss, and the bond contained a provision that failure to give such notice within said time should exclude such accounts and loss from the indemnity of the bond. The bond also contained the provision that the final proof of loss should be made at the home office of the company within 30 days after the expiration of the bond; and the further provision that, in the event of a loss occurring within the life of the bond, of which the company had not received notification before the termination thereof, such loss should not be provable thereunder. The bond contained other provisions, which it is not necessary here to notice. Upon the trial of this action proof was offered of claims in cases where the goods had been sold during the period covered by the bond, but no judgment had been obtained, or execution returned unsatisfied, until after the expiration of the term of the bond. These proofs were excluded, and the question presented for consideration is whether they came within the terms of the bond.

It seems to us, upon a consideration of the language of the bond, that by no process of construction can any such claims be brought within its terms. The language of the bond is that, “ in case the said second party [the plaintiff] should suffer losses in his business during the said period of this bond,” etc. Here the time is mentioned. The losses must be suffered during' the period of the bond, namely, between noon of the 11th of March, 1892, and noon of the 11th of March, 1893. Then follows a statement of the kind of loss which must be sustained. The language of the bond is, “ By reason of the insolvency by legal process, * * * or by reason of any judgment or decree of court obtained for goods so delivered within the said period of this bond upon which execution shall have been returned unsatisfied.” The second class of losses consists of those which occurred by reason of a judgment or decree of court upon which execution shall have been returned unsatisfied, and those losses must have been suffered during the period of the bond. If there w'ere any doubt on this question of construction, the eleventh clause of the bond seems to settle it. That clause provides that, “ in the event of a loss occurring within the life of this bond [namely, from noon of the 11th of March, 1892, to noon of the 11th of March, 1893], of which said party of the first part [the company] has not received notification before the termination hereof, such loss shall not be provable hereunder.” If the conditions precedent had not occurred which constituted a loss under the provisions of the bond prior to its expiration, of course no notice could be given, and under this clause no recovery could be had. It does not seem to us that the question of liability is in any manner a question of punctuation. The events which, by the terms of the bond, constituted the loss, are by its very language required to happen within the time mentioned as being the period of the existence of the bond; and those things must happen not only within that period, but the right to the judgment or decree must be founded upon a sale of goods occurring within the same period. It is conceded that the final proofs of loss must necessarily be furnished within 30 days after the expiration of the bond, and that the notification of loss must be given before the expiration of the bond. If there is no limitation upon the time when the judgment or decree is to be obtained and the execution returned unsatisfied, how can the other conditions in regard to the 30-day requirement of final proofs of loss and the notification of loss during the life of the bond be complied with ? The liability of the defendant being thus limited to the period mentioned in the bond, and it providing that such liability must be evidenced by events transpiring within the like period, it does not seem that there is any room for an extension of the period during which losses may accrue, which period has been expressly limited by the terms of the bond.

The motion for a new trial should be denied, and the exceptions overruled, and judgment ordered for the defendant upon the verdict, with costs.

All concur.


text:
    The People v. Henry W. Koenig.
    (Supreme Court, Appellate Division, First Department.
    October 23, 1896.)
    Intoxicating liquors—Sales to minors—Repeal of statute.
    Pen. Code, § 390, subd. 3, declaring the sale of intoxicating liquor to children under a certain age to be a misdemeanor cognizable under Code Cr. Proc. § 64, by the court of special sessions, is not impliedly repealed by Laws 1896, c. 112 (Liquor Tax Law, §§ 30, 35, 44, prohibiting sales to infants, and providing that, except as otherwise pro- - vided, violations of the act shall be prosecuted by indictment in a court of record, and that special or local laws in conflict with the act are repealed.
    Appeal from court of special sessions, New York County.

      Henry W. Koenig was convicted of a misdemeanor, and appeals.
    W. M. Mullen, for appellant; John D. Lindsay, for the People.
   VAN BRUNT, P. J.

—On the 5th day of June, 1896, the appellant was arrested within the city of Hew York, and brought before a city magistrate, charged with violating section 290 of the Penal Code, in that he, the defendant, sold beer to a minor under the age of 16 years. When the defendant was arraigned for trial in the court of special sessions, he moved for a dismissal of the complaint on the ground that under chapter 112 of the Laws of 1896, known as the “ Liquor Tax Law,” the court had no jurisdiction to try the case for the following reason : that the only way in which the defendant could be prosecuted was by way of indictment and trial in a court of record having jurisdiction for the trial of crime of the grade of a felony. This motion ivas denied. At the close of the people’s case the defendant renewed his motion, which was again denied; to both of which rulings the defendant duly excepted.

The provision of the Penal Code which the appellant was alleged to have violated was subdivision 3 of section 290, which provides that a person who sells or gives away, or causes or permits or procures to be sold or given away, to any child actually or apparently under the age of 16 years, any beer, ale, wine, or any strong or spirituous liquors, is guilty of a misdemeanor. This provision was enacted in 1889 (chapter 140), and was concededly in force up to the time of the going into effect of the liquor tax law above mentioned; and there is no claim made but that, until the passage of this latter law, offenses against the provision quoted were cognizable in the court of special sessions of the city and county of Hew York, unless the defendant demanded a trial by jury, or thereafter the case was removed into the court of general sessions (Code Cr. Proc. § 64). On the 13th of March, 1896, chapter 112 of the Laws of 1896, known as the “ Liquor Tax Law” was enacted, and by section 30 thereof it was provided, among other things, that no corporation, association, co-partnership, or person, whether taxed under this act or not, shall sell or give away any liquors to any minor under the age of 18 years. Section 34 declares, among other things, that any person who shall violate the provisions of this act by trafficking in liquor contrary to its provisions, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by fine, etc. Section 35 provides that, except as otherwise provided by this act, all proceedings instituted for the punishment of any violation of the provisions of the act, the penalties for which are prescribed in section 34, shall be prosecuted by indictment, and by trial in a court of record having jurisdiction for the trial of crimes of the grade of a felony. It is urged upon the part of the appellant that section 290 of the Penal Code is impliedly repealed by chapter 112 of the Laws of 1896, and there undoubtedly would be considerable force in the contention had not the liquor tax law itself provided as to what laws were repealed by it. By section 44 it repeals the provisions of any special or local law, grant, or charter in conflict with this act. The provision of the Penal Code in question ivas not a special or local law, and therefore was not repealed by this section of the act.

Annexed to the act is a schedule of general laAvs, and the act provides that of the laws enumerated in this schedule that portion specified in the last column is repealed. But section 290 of the Penal Code is not there mentioned. This clearly indicates that it was not the intention of the legislature to repeal any general laws except those enumerated in this schedule. This view is further strengthened by section 728 of 'the Penal Code, which provides that “ no provision of this Code, or any part thereof shall be .deemed repealed, altered or amended by the passage of any subsequent act inconsistent therewith, unless such statute shall expressly refer thereto, and directly repeal, alter or amend this Code accordingly.” The rule is well settled that repeals by implication are not favored, and that a statute is not to be deemed repealed by implication by a subsequent statute upon the same subject, unless the íavo are manifestly inconsistent with and repugnant to each other, or unless a clear intention is disclosed on the face of the later statute to repeal the former one. Heckmann v. Pinkney, 81 N. Y. 215 ; People v. Jaehne, 103 N. Y. 182; 38 St. Rep. 11 ; McKenna v. Edmundstone, 91 N. Y. 231. Applying these rules to the case at bar, it is evident that there was no repeal by implication of the provisions of the Penal Code. It is true that the appellant might have been proceeded against under the provisions of the liquor tax law. But those provisions ivere not exclusive. The two acts could stand together, and it was the evident intention of the legislature not to repeal any general laws except those referred to in the schedule above mentioned. It might be further suggested that the acts in question have not the same object. The provisions of the Penal Code upon this subject have in view the protection of children, while those of the liquor tax law relate' entirely to the regulation of the liquor traffic. It seems to be apparent, therefore, that the statutes are not at all in pari materia, and for this reason there could be no repeal by implication.

We are of the opinion that the conviction should be affirmed.

-All concur.


author: WILLARD BARTLETT, J.

text:
    Emma J. Betts v. Hiram W. Betts et al.

    (Supreme Court, Appellate Division, Second Department.
    October 20, 1896.)
    1. Mortgages—Merger.
    Mortgages are not merged in the legal title where the purchaser of the mortgaged land pays the mortgage debt and takes assignments of the mortgages to his wife for the purpose of protecting his title from possible imperfections.
    2. Gifts—Subject of—Mortgages.
    The purchaser of land subject to mortgage may make a valid gift of the mortgage to his wife by paying the amount to the holder, and causing it to be assigned to his wife.
    Appeal from special term, Kings County.
    Actions by Emma J. Betts against Hiram W. Betts to foreclose two mortgages. From an interlocutory judgment in each case in favor of plaintiff, defendant, Hiram W. Betts, appeals.
    Joel L. Marx, for appellant; Benjamin Estes, for respondent.
   WILLARD BARTLETT, J.

—These actions were brought by Emma J. Betts, the plaintiff, against Iliram W. Betts, her husband, and other defendants, to foreclose two mortgages on adjoining pieces of property in the city of Brooklyn. By stipulation of counsel they were tried together, and the same questions of law and fact arise in both. The mortgaged property belongs to the defendant, Hiram W. Betts, having been acquired by him upon the foreclosure of second mortgages upon the premises. At the time of his purchase the mortgages in suit constituted prior liens. In the year 1875, after such purchase, the defendant, Iliram W. Betts, paid the amount due on these mortgages and the accompanying bonds to the persons who were then the lawful owners and holders thereof; but for the purpose of protecting his title from any possible imperfections arising out of the foreclosure of the second mortgages under which he had purchased, and so that the defendant, Iliram W. Betts, might be subrogated to the rights ■of the mortgagees under the mortgages in suit, he caused .assignment of these mortgages to be made to the plaintiff, his wife, instead of having the same satisfied of record. These ■assignments were accepted by Mrs. Betts, and taken by her in trust, for the purpose of protecting her husband’s title, as already stated. Up to this point there is no disputed question of fact which this court is called upon to consider, inasmuch as the facts already set forth in regard to the assignment of the mortgages to the plaintiff and the purpose of that assignment were found by the learned judge at special . term upon the request of the appellant. The' real controversy in the case relates to what occurred after the plaintiff had thus become the assignee of the mortgages. The proof shows that 1 in the course of time Mrs. Betts claimed that the mortgages belonged to her, and not to her husband; and she emphatically denied the existence of any trust relation on her part with reference to the instruments. Her claim of ownership appears to have given rise to much dispute between her and her husband. There is evidence in the record tending to show that he more than once admitted her ownership, and evidence, on the other hand, indicating that he denied it. Upon the whole case the learned court below reached the conclusion that,, although the mortgages were originally taken in the wife’s name for the benefit of the husband, a controversy subsequently arose between them, wherein she claimed in good faith that she owned the bonds and mortgages, and he claimed in equally good faith that she did not. These conflicting claims were finally adjusted. The husband yielded, and made a gift of the bonds and mortgages to his wife. There is abundant evidence to justify this view of the facts, and it only remains to inquire whether there are any reasons iii law which require us to interfere with the judgments of foreclosure based upon it.

It seems clear that there was no merger of the mortgages at the time that the defendant, Hiram W. Betts, procured them to be assigned to his wife. The very purpose for which he desired such assignment was antagonistic to the ideas of a merger. He wanted to preserve the mortgages in full force and effect, in order that he might avail himself of them in case his title as a purchaser under the foreclosure of the later mortgages, should prove to be defective. Merger, in equity, is a question of intention, and is not to be presumed in opposition to the intent of the parties. Smith v. Roberts, 91 N. Y. 470. The payment made to the holders of the mortgages from whom the assignments were obtained was not, under the circumstances, a payment which had the effect of discharging the mortgages, but is to be deemed merely the purchase price for the transfer. That the mortgages could be made the subject, of a gift from the husband to the wife appears to be settled by authority. Bucklin v. Bucklin, 1 Abb. Dec. 242; Van Amburgh v. Kramer, 16 Hun, 205; Bolen v. Bolen, 44 IIun, 362. In the case first cited a mortgage by a father to a trustee, in order to make a voluntary provision for his infant child, was upheld as being as valid in every respect as would be a transfer for a full pecuniary consideration, the contract being executed, and there being no intervening rights of creditors. Chief Judge Denio, who wrote the opinion of the court, said : “ There are cases in which a voluntary executory gift will not be enforced by the courts, but an executed one is as valid as though based on a full pecuniary consideration.” In the second case, which arose in this department, Gilbert, J., said: “ The evidence in this case merely shows that the bond and mortgage in suit were not made upon a valuable consideration. But there are other considerations which are sufficient in equity to support transactions between husband and wife, when the claims of creditors do not interfere. Indeed, it has been held that a bond and mortgage may be made by way of gift.” In the third case, which was also decided by the general term of the second department, the facts were distinguished from those of Bucklin v. Bucklin, supra, but the authority of that decision was fully recognized. It seems to us that it must be deemed controlling here in support of the validity of the gift of the mortgages in suit.

There is nothing in the point that the findings of the court below established a different cause of action from that which was pleaded. The complaints alleged that the plaintiff was the owner and holder of the bonds and mortgages at the time the suits were commenced. This was the essential averment of ownership which the plaintiff was bound to prove, and it was immaterial whether she proved that she had become the owner by a direct transfer from the assignors or by an executed gift from her husband.

The judgments appealed from must be affirmed, with costs.

All concur.


author: TOMPKINS, S.

text:
    In the Matter of the Distribution of the Estate of Robert H. Arkenburgh.
    (Surrogate’s Court, Rockland County.
    July, 1896.)
    Appeal prom surrogate’s court—Undertaking—Stay op execution.
    Code Civ. Proc. § 2577, relating to appeals generally from surrogates’ courts, provides for an undertaking in a sum not to exceed §250. Section 2580, relating to appeals by executors and administrators, regulates the amount of an undertaking on appeal from an order granting leave to issue execution, and provides that “in every other case it [the amount] must be fixed by the surrogate.” Held, that, unless the appeal is taken by an executor, only the undertaking mentioned ill section 3577 need be given to stay proceedings, it being provided by section 2584 that a perfected appeal has the same effect as a stay of the proceedings.
    Motion for distribution of the estate of Robert H. Arkenburgh, deceased. Denied.
    Robert F. Little, for the motion; Charles E. Souther and John Larkin, opposed.
   TOMPKINS, S.

—On the 12th day of December, 1895, a decree was made settling the account of Eliza J. Arkenburgh, as executrix, and Oliver M. Arkenburgh, as executor, of the will of R. EL Arkenburgh, deceased. Under that decree the executor is entitled to receive upwards of $16,000 ; in all, the sum of about $57,000 is directed to be distributed. An appeal has been taken by two of the legatees, the executor and other legatee not appealing. An undertaking for $250 to perfect the appeal under Code, § 2577, has been given. A motion is now made by the- executor for distribution under the decree, unless .a proper undertaking is given to stay the execution and enforcement of the decree. The question is, does the undertaking .already given effect a stay ? Section 2577 of the Code provides for the undertaking which has been given, and which is necessary to render the appeal effectual. The only other undertaking provided for on an appeal from a decree of the surrogate’s court is in cases of appeals by executors, administrators, trustees, guardians, or other persons appointed by the surrogate’s court. Then, to stay the enforcement of the decree, there must be an additional undertaking. Counsel for the executor and the motion insists that section 2580 gives the surrogate discretion to require an additional undertaking and fix the amount thereof. These are the words relied upon: “ In every other case it [the amount] must be fixed by the surrogate or by a judge of the appellate court, who may require proof,” etc. These words, however, clearly refer to undertakings required of executors, administrators, etc., and not to any other appellant. The case of Steinback v. Diepenbrock, 5 App. Div. 208, 39 N. Y. Supp. 137, cited in support of the motion, is not applicable. • There the appeal was from a judgment of the supreme court. There is authority for requiring an undertaking to indemnify a respondent against loss and damage in such a case that is not found in the provisions in reference to appeals from surrogates’ courts. My conclusion is that, unless the appeal is by the executor, administrator, etc., no undertaking can be required except the one for $250 required by section 2577, and that the giving of that undertaking on this appeal perfects the appeal, and hence, under section 2584, operates as a stay of proceedings to enforce the decree. Motion denied, with $10 costs.