text:
    Estate of Ann Petrie, Deceased.

      (Surrogate’s Court, New York County,

      filed December 23, 1886.)

    1. Will—Construction of.
    The testatrix by her will left her entire residuary estate to her executors in trust to collect the income thereof, ami out of it to pay to testatrix's daughter a certain annuity during her natural life, and the balance of the income to her four sons. On the death of the annuitant the entire estate was to be equally divided between said four sons, if they should be then' living, and in case the will proceeded to say “any of my said sons' shall die before my said daughter, leaving a child or children, or leaving no child or children, but leaving a widow, him surviving then such child or children, or such widow, or such person or persons as my said son so dying shall, by his will and testatment for that purpose, name, shall take the share or portion of my estate, and of the income thereof, which the said son would, by the foregoing provision, be entitled to receive." Held, that the testatrix intended that in the event of the death of any one of her sons, in the lifetime of her daughter, leaving a child or children, him surviving such child or children of the sou so dying, should receive the share of the estate which such son himself would have received had he lived to take it. That the provision for payment to the widow of a deceased son, or to the person or persons named in his last will, was not intended to be effectual unless such son should leave him surviving no child or children.
    3. Same—Removal op executor or trustee—Who beneficially interested within Code Civ. Pro.; 3685 and 2817.
    One of said sons died, leaving children, and subsequently the annuitant died. Held, that said children were “interested in the estate” and “ beneficially interested in the execution of a trust” within Code Civ. Pro., §§ 2685 and'2817, and could petition for the removal of the executor and trustee.
    3, Executors and Administrators—When removed—Borrowing money of estate—Code Civ. Pro , 2685, 2687 and 2817.
    The mere fact that an executor, administrator or trustee has, without lawful authority, borrowed funds entrusted to his charge, does not ipso facto call for his removal. But when his conduct has been such as to endanger the trust property, or to show a want of honesty, or of proper capacity, or of reasonable fidelity, he must be pronounced “unfit for the due execution of his office,” and must accordingly be deprived of it.
    4. Same—Liability for unlawful acts.
    It is claimed that the father of the petitioner herein, through whom the property descended to them, agreed to the improper investment of the estate. Held, that even if such agreement would be binding on the father if living, that the petitioners were not bound thereby, and that the executor must suffer the consequences of his unlawful act.

      Butler Stillman & Hubbard, for petitioner; P. O. Eckerson, for executors; Barrett & Redfield, proctors.
   Rollins, S.

An application is here made for the removal of George H. Petrie from his office as surviving executor and trustee of and under the will of this testatrix, Ann Petrie, deceased.

By that will, which was admitted to probate in September, 1868, the testatrix gave her entire residuary estate to her executors, intrust, “to collect and receive the income thereof," to sell and dispose of the same, and to reinvest the proceeds of such sale in any manner that they shall deem best in order to realize a fair income therefrom, without restriction as to the character or class of such investments.”

The will further directed that out of such income the executors should pay over to Ann Petrie, daughter of the testatrix, an annuity of $1,000 during her natural life, that they should make equal division of the balance of the income among the four sons of the testatrix, James, Alexander, Jonathan and George, and that, at the decease of the annuitant, they should convert the .entire estate into cash and distribute the proceeds equally among the four sons above named, if they should be then living.

“And in case,” the will proceeds to say, “any of my said sons shall die before my said daughter, leaving a child or children, or leaving no child or children, but leaving a widow him surviving, then such child or children, or such widow, or such person or persons as my said son so dying shall by his will and testament for that purpose name, shall take the share or portion of my estate and of the income thereof which said son would, by the foregoing provisions, be entitled to receive.”

I am clearly of the opinion that by the provision last above quoted the testatrix intended that in the event of the death of any one of her sons in the lifetime of her daughter, leaving a child or children him surviving, such child or children of such son so dying should receive the share of the estate which such son himself would have received had he lived to take it.

The provision for payment to the widow of a deceased son, or to the person or persons named in his last will, was not intended to be effectual unless such son should leave him surviving no child or children.

Now, three of these six petitioners are sons and the three others are daughters of the decedent’s son Alexander, who died in 1872, while his sister, Ann Petrie, the annuitant, now deceased, was yet living.

I hold, therefore, that the petitioners are persons “interested in the estate” and “beneficially interested in the execution of a trust, ” within the meaning of those terms in sections 2685 and 2817 of the Code of Civ. Pro., and are accordingly entitled to invoke the authority of the surrogate for the removal of this -respondent as executor and trustee.

The respondent does not deny the allegation of the petition that he and his brother Jonathan, now deceased, who was in his lifetime one of the executors of this estate, set apart the sum of $15,500 as a fund for producing the annuity provided by the will for their sister Ann. Nor does the answer dispute that the moneys thus s$t apart were borrowed by the executors for their personal and private use, the respondent taking to himself $7,500 of that amount and his associate $8,000. Each of them individually gave to the other as executor, by way of security for the repayment of the respective loans, a mortgage upon certain real property.

The security furnished by this respondent was a second mortgage upon premises at Spuyten Duyvil, N. Y., already burdened with an incumbrance of $7,000. The value of this property on April 1, 1869, when the second mortgage was effected, does not clearly appear.

The respondent says, in his' answer, that at the time he supposed that the loan was ‘1 amply secured.” He does not deny the petitioner’s allegation that the property is now worth no more than $12,000, and that an attempt to enforce the collection of the loan by foreclosure would result in a deficiency of $2,500 or $3,000.

The conduct of this respondent in borrowing a portion of the funds of the estate, under the circumstances above disclosed, and in lending to his co-executor another portion, constituted a serious breach of trust.

While the testator clothed his executors with large discretionary powers he certainly did not authorize them to lend to each other, the assets of the estate or to invest them upon the hazardous security of a second mortgage. Estate of Cant, 3 N. Y. State Rep., 230, and cases cited; King v. Talbot, 40 N. Y., 76; Adair v. Brimmer, 74 id., 539; Lock hart v. Reilly, 1 DeG. & J., 464, 476; Norris v. Wright, 14 Beav., 291, 307; Drosier v. Brereton, 15 id., 226; Westover v. Chapman, 1 Coll. C. C., 177; Savage v. Gould, 60 How. Pr., 234; Singleton v. Lowndes, 9 S. Car., 465; Stickney v. Sewell, 1 Myl. & Cr., 8; In re Walker, 5 Russ., 7; Tuttle v. Gilmore, 36 N. J. Eq., 617.

The mere fact that an executor, administrator or trustee has, without lawful authority, borrowed funds entrusted to his charge does not ipso facto call for his removal. But when his conduct has been such as to endanger the trust property, or to show a want of honesty or of proper capacity -or of reasonable fidelity, he must be pronounced “unfit for the due execution of his office,” and must accordingly be deprived of it. Morgan v. Morgan, 3 Dem., 612; Code Civ. Pro., §§ 2685, 2687, 2817.

It is urged in behalf of this respondent that he must be held harmless for making the investments here assailed because of a certain agreement entered into on April 27, 1869, between himself, his co-executor and certain persons interested in the estate, including Alexander S. Petrie, the father of these petitioners.

There is nothing in the terms of that agreement, or of the decree of April 19, 1870, by which it is recognized, tending to show that any of the parties thereto, other than the executors, were cognizant of the fact that the loans to which it refers were loans to the executors themselves, or that one of those loans was protected by no better security .than a second mortgage.

And, besides, these petitioners were not parties to the agreement and are not bound by the decree. Assuming, therefore, that the executors would have been protected in case Alexander S. Petrie had outlived the annuitant, they took the risk of his failing to do so, and as in fact the annuitant was living at Alexander’s death, the surviving executor must suffer the consequences.

He is confessedly unable to make immediate restoration to the estate of the funds he has borrowed, and as payment can only be enforced by proceedings against him and his property, I direct that his letters testamentary be revoked .and that he be removed from his office as trustee under this testator’s will.


source: Caselaw Access Project

author: Rollins, S.

license: Public Domain

text:
    Estate of Samuel Wood, Deceased.

      (Surrogate Court, New York County,

      Filed December 23, 1886.)

    1. Executors and trustees—Accounting—Voluntary intervention— Code Civil Procedure, §§ 2731 and 2810.
    The only authority for the voluntary intervention in proceedings for executors and trustees accountings, of any person other than the petitioner or petitioners and the person or persons by him or them caused to be cited rests upon Code Civil Procedure, £§ 2731 and 2810, and these sections do not sanction such intervention until “ the hearing.”
    3. Same—Practice—Special guardian of infant—When not appointed ON ACCOUNTING.
    If a person cited on behalf of an infant to account as executor, administrator or trustee, pursuant to Code Civil Procedure, §§ 2726 and 2808, upon the return day makes application for a voluntary accounting he cannot be ordered to account in the proceeding instituted in behalf of the infant and no occasion therefor can arise in that proceeding for the appointment of a special guardian.
    8. Same—When appointed.
    If said person cited as above fails to file a petition for a voluntary accounting and undertakes to show cause why he should not be required to-account the petition in the infant’s behalf should not be dismissed without affording him an opportunity by general or special guardian to oppose-its dismissal.

      B. E. Valentine, for William Wood and Mary A. Wood, adm’rs, etc.; Wakeman & Batting and Edwr. T. Schenck, for executors and trustees.
   Rollins, S.

First, Application of Wm. Wood. Under all the circumstances disclosed in the papers before me I must grant the motion of the respondents for the re-settlement of the order of July 10,1886, directing them to account. Wm. Wood, who instituted the proceeding in which that order was entered, has since its entry filed his consent that the-proceeding be discontinued. It is doubtful, in view of this-fact, whether an order could now be lawfully entered therein upon motion of any of the persons who have sought to intervene. The only authority for the voluntary intervention, in proceedings for executors’ and trustees’ accountings, of any person other than the petitioner or petitioners and the person or persons by him or them caused to be cited, rests upon sections 2731 and 2810 of the Code of Civil. Procedure.

Assuming what is not altogether clear, that the right to such intervention exists in compulsory accountings as well as in accountings had' at the instance of a petitioning executor or trustee, the sections referred to do not sanction, such intervention until “the hearing.” Now, no “hearing ” has as yet been entered upon in the case at bar, and there is much force in the respondents’ contention tnat as. this proceeding was instituted by William Wood alone, his. abandonment of it has made any hearing impossible. Even if this contention is unsound, the proceeding must be dismissed.

Of the persons who are named as parties in the July order, one is dead, and all the others have either formally consented to a discontinuance or have released their interests, in the estate.

There may be grave reasons to doubt whether the course-pursued by the executors and trustees in affecting settlements with these persons is authorized by the will, un^ler which they have been acting, or will hereafter, in case it is. assailed, be sanctioned by the surrogate; but this matter does not now arise for determination.

Second. Application of Mary A. Wood, as administratrix, etc., and in behalf of her infant children. This petitioner is the widow of Martin Wood, deceased, who was in his life-time a legatee under the will of tnis testator and one of the executors and trustees of his estates. She applies for an accounting of the surviving executors and trustees both in her capacity as administratrix of her deceased husband and on behalf of her children, Mary B. Wood and Alfred L. Wood, both of whom are infants.

The respondents allege in their answer that prior to the commencement of the proceeding at bar, the petitioner brought against them in the supreme’court an action which is still pending, and in which the administratrix of Martin. Wood, deceased, may obtain the very relief which she is here seeking.

It is true that she does not in that action expressly ask for an accounting, but they insist that something in the nature of an accounting can nevertheless be had if there shall be need of it, and that a recovery upon the claims which the administratrix is prosecuting in the supreme court would make any accounting before the surrogate quite unnecessary.

The effect upon the proceeding at bar of the pendency of the action referred to need not, however, be the subject of serious consideration. For I must order an account to be filed upon the application in behalf of Mrs. Woods’ children, and when such an account is presented, Mrs. Wood, as administratrix, may doubtless make herself a party to the proceeding for its settlement notwithstanding the continued pendency of the suit in the supreme court.

The children referred to are heirs and next of kin of théir late father, Martin Wood, and are entitled as such under the first subdivision of the second clause of this testator’s will, to receive upon the death of their uncle, Joseph Wood, a legacy of $5,000. This is an interest which entitles them to demand an accounting. Code Civil Procedure, §§ 2726, 2808, 2514, subd. 11; Campbell v. Purdy, 5 Redf., 434; Hood v. Hood, 85 N. Y., 561-577.

The respondents further claim that the petition in behalf of the infants, should be dismissed because they do not appear either by general or special guardian.

This contention is unsound Sections 2726 and 2808, supra, expressly declare that in behalf of an infant interested in a decedent’s estate any person,” may present a petition praying for an accounting by such decedent’s executor, administrator or testamentary trustee. Thereupon a citation must be issued directing the person cited to show cause why he should not be ordered to account.

If upon the return day of such citation he makes application for a voluntary accounting, he cannot be "ordered to account in the proceeding instituted in behalf of the infant and no occasion therefore can arise in that proceeding for the appointment of a special guardian. Such an appointment is seasonably made, if made upon the return of the citation issued upon the petition of the accounting party himself.

If a person cited on behalf of an infant to account as executor, administrator or trustee fails on the other hand to file a petition for a voluntary- accounting, but undertakes, as the respondents have undertaken in the case at bar, to show cause why he should not be required to account, the petition in the infant’s behalf should not be dismissed without affording him an opportunity by general or special guardian to oppose its dismissal.

If the infant’s petition is granted, and an account ordered, and there is no appearance by a general guardian, no further steps should be taken in the proceeding until after the appointment of a special guardian.

An order may be entered directing the respondents to account.


text:
    Estate of John J. Tietjen, Deceased.

      (Surrogate’s Court, New York County,

      Filed December 23, 1886

    Life-tenant—What principal and what interest.
    The testator, by his will gave all his estate, real and personal, to his executors in trust to collect the rents, etc , and after directing as to the investment of the principal directs them to apply the rent, income, interest, etc., to the use of his wife during her life. Upon her death the entire estate is given in remainder to such of the children of the testator as shall be then living. In 1880 the executors recovered a judgment for the sum of $2,600, upon which the judgment-debtor from time to time paid in varying amounts the sum of $560; no one of the payments having been in excess of the amount due as interest on the judgment Held that the wife was only entitled to the interest on the $560 until the entire judgment was paid. The moneys so paid must be deemed as between the testator’s widow and children to be corpus and not income.
   Rollins, S.

By the second clause of his will, this testator gives all his estate, real and personal, to his executors in trust, to collect the rents of the realty, and to invest, and keep invested, the personal estates in bonds and mortgages, or in stocks or bonds of the city or state of New York, or of the government óf the United States; to collect the interest and dividends thereon, and to apply the rents, income, interest, etc., to the use of his wife during her life. Upon her death the entire estate is given in remainder to such of the children of the testator as shall be then living.

In September, 1880, the executors recovered a judgment in supreme court against one Lichten for the sum of $2,600 and upwards. Lichten has, from time to time, at irregular intervals, and in varying amounts, paid on this judgment the sum of $560. No one of the payments has been in excess of the amount due as interest on the judgment.

An application is now made in behalf of the widow, that the executors be directed to turn over to her the aforesaid sum of $560, as interest and income to which she is entitled under the will It appears by the affidavit of one of the executors that an execution issued on the judgment in question soon after its recovery, was returned unsatisfied; that several sums amounting in all to the $560, subsequently paid by the judgment debtor, were paid without any direction as to their application to the discharge of his indebtedness. The respondent insists that the entire amount must be treated as principal to be invested, and that the petitioner is only entitled to the income thereon.

It does not appear that an execution issued against Lichten would be of any more avail now than was that which was returned unsatisfied in 1880; and if Lichten should die to-day, the $560 he has already paid would represent the entire interest of the cestuis que trustent for life and of the remaindermen in the avails of the judgment against him.

It seems to me, therefore, that even if counsel for the' petitioner is correct in claiming that as between Litchten and this estate the moneys he has paid should be deemed to have been paid as interest and not in reduction of the principal, nevertheless they must be deemed as between the testator’s widow and children to be corpus and not income.

It was doubtless the intention of the testator that his children should enjoy, at their mother’s death, whatever she had herself enjoyed theretofore; and if, while she is yet alive, Litchten shall discharge his indebtedness to the estate, an occasion will arise for some readjustment of the respective interests to herself and her children in the proceeds of this judgment.

At present her petition must be wholly denied.


author: Arlington, S.

text:
    Matter of the Judicial Settlement of the Estate of Abelard Reynolds, Deceased.

      (Surrogate’s Court, Monroe County,

      Filed December 28, 1886.)

    1. Will — Construction or—Meaning or general words when no, NO RESIDUARY CLAUSE.
    In cases in which the will to be construed has no residuary clause an extensive signification is given to the general words of the bequest for the purpose of avoiding intestacy as to any part of the decedent’s estate.
    2. Same—When there is a residuary clause—ejusdem generis.
    In cases in which the will, in addition to the disputed bequest, also contains a residuary clause, the principle of ejusdem generis is applied to the general words to prevent the residuary provision being inoperative.

      3. Same—Meaning of personal property.
    In a will having a residuary clause the testator bequeathed to his son a certain building, with ad the lands, buildings and appurtenances thereunto belonging, and all the furniture and personal property in and upon the same or in any maimer connected therewith. There was nothing that the residuary clause could apply to if the money, evidences "of deposit, securities and dioses in action and- other personal property in and upon said property was given to said son. Held, that the testator only intended to give the furniture and other personal properly connected with and suitable and appropriate for use in the building.
    Contest arising on final settlement over the construction of certain cláuses in decedent’s will.

      Donald McNaughton and Theodore Bacon, for the executor; Horace McGuire, D. D. Sully and Spencer Clinton, for contestants.
   Arlington, S.

This preceding was begun to procure a final settlement of the accounts of Mortimer F. Reynolds, as executor of the will of the above-named testator In his account as filed the executor claims title to all personal property belonging to the decedent at his death, which was then in and upon the Arcade property in the city of Rochester, N. Y., consisting of' money, bank deposits, securities and accounts. He asserts ownership in all such property by virtue of the bequest contained in the third subdivision of the will of Aoelard Reynolds, the testator, which portion of said will, with certain other parts thereof,, is hereinafter, set forth. The amount of property so claimed by the executor is of the value of upwards of $12.000. The grand-daughters of the decedent, Mrs. Kenyon and Mrs. Shepard, the residuary legatees under said will, contest this claim of the executor, and insist that the bequest to Mortimer F. Reynolds of all the furniture and personal property, as set forth in said third sub-division of the will, carries only such personal property in addition to furniture as naturally and properly belongs with the Arcade building and is ordinarily used in connection with the same to render it fit for occupation. In other words, the contestants maintain that the words “personal property” in the bequest, must be construed according to the rule of ejusdem generis. The executor, on the other hand, contends that these words, “personal property,” are to have their broadest and largest meaning; and, on his behalf, it is further insisted that, by excepting out of the operation of the words “all other personal property,” in the second subdivision of the will, whatever comes under the head of money, choses in action and securities, and by not annexing similar restrictive words to the bequest of personal property in the third subdivision above referred to, the testator thereby indicated his intention to give to the words “personal property” in the latter, their largest and most comprehensive sense.

The following are the only portions of the will material to be considered in this discussion:

Second. I give and bequeath to my said wife all the provisions and supplies of every kind which may be on hand at my said homestead at the time of my decease, and the use during her life of all household furniture, goods, carriages, harness and all other personal property (other than money, clioses in action and securities) which shall be in or upon the premises at my said homestead or habitually kept there at the time of my decease. •
Third I give, devise and bequeath to my son, Mortimer F. Reynolds, my property situated upon West Main (formerly Buffalo) street, in said city of Rochester, extending through to Exchange place, in the rear, known as Reynolds Arcade, including" also East Arcade, so called, with all the lands, buildings and appurtenances thereunto belonging, or in any wise appertaining, and including all the furniture and personal property in and upon the same, or in any manner connected therewith, to have and to hold the same to his own use and benefit forever, subject, however, to the payment of the following sums, which are hereby made a distinct charge thereon, viz An annuity of $3,000 to my said wife, to be paid to her in four equal quarterly payments from and after my decease in each year, during the continuance of her natural life. Also, the sum of $50,000, with annual interest thereon, from the time of my decease, to my grand daughter, Clara L. Amsden, and the like sum. of $50,000, with like interest, to my grand-daughter, Sophia C. Strong, to be paid to them respectively, as follows, viz., in annual installments of at least $10,000 per annum to each of them, to be applied first to the payment of the interest which may be then due, and the residue upon the principal until the whole is paid, the first installment to be paid at the expiration of one year irom the time of my decease, with the privilege, however, of paying a greater amount at any time, to the extent of all that may remain due and unpaid
Fifth I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to my said son and executor. Mortimer F Reynolds, in trust, to sell and dispose of the same and convert the whole into money, or into good and safe securities, and out of the proceeds to pay first, to my grand daughter, Sophia C. Strong, a sum which, when added to the advances made to her either by myself or my deceased son, William A Reynolds, in his lifetime, and now charged upon my books, shall be equal to the advances similarly made to my grand daughter, Clara L Amsden, also charged upon my books, and after such payment, to pay to himself or retain out of the residue of such proceeds a sum which, when added to the sum charged as advanced against him, the said Mortimer F. Reynolds, upon my books, shall be equal to the sum so advanced to each of my granddaughters The remainder of the trust fund to be realized from the sale herein directed, to be divided equally between my two grand daughters, one-half to each The furniture and personal property, the use of which is given in connection with the homestead to my wife, is not, however, to be sold, in case she accepts the provision herein made for her benefit, until after her decease, and whenever sold, the avails are to be divided equally between my said grand-daughters

No New York cases, bearing upon the question here presented, were cited on the argument herein and I have myself found none, but cases construing language more or less similar to that used by this testator are found in the reports of other states of the union, and of England. Although the decisions are conflicting, and, at first glance, irreconcilable, yet a careful examination of them will show that, for the most part, they fall within one or the other of the following classes, namely:

First. Oases in which the will to be construed had no residuary clause, and the court has given an extensive signification to the general words of the bequest, for the evident purpose of avoiding intestacy as to any part of the decedent’s estate.

Second. Cases in which the will, in addition to the disputed bequest, also contained a residuary clause, to which the court has given effect by applying the principle of ejusdem generis to the general words, because to hold that the latter were to have their largest meaning would render the residuary provision inoperative by leaving no property on which it could take effect.

Third. Cases in which the technical rule, that general words preceded, or followed, by special words are to be limited to things ejusdem generis has been applied without special regard to the intent of the testator. This principle .of decision will probably not be followed by any court of the present day.

Fourth. Cases in which the courts have endeavored, within well-recognized general principles of construction,, but otherwise unhampered by strictly technical rules, to ascertain from the whole instrument the intention of the testator and to give it effect. Omitting from the third sub-division of the present will such parts thereof as are not material to this discussion, it will read as follows, namely:

“I give, devise and bequeath to my son, Mortimer F„ Reynolds, my property in Rochester, known as Reynolds Arcade, including, also, East Arcade, with all the lands, buildings and appurtenances thereunto belonging, and all the furniture and personal property in and upon same or in any manner connected therewith.”

Under the first principle deduced from the cases, and above stated, this provision, standing alone, would clearly carry all personal property found in and upon the Arcade, at the testator’s death. There is, however, a residuary clause in this will, viz., the fifth sub-division thereof, which disposes of personal property, and the case will therefore fall under the second or fourth of the classes above made. It appears from the inventory that, with the exception of bad and doubtful accounts and advances charged on his books, the testator left no personal property of any value, besides what was in and upon the Arcade, at his death, and had usually been kept there for a long time prior thereto; and what was in use at his dwelling house: and which was given to his wife for life by the second subdivision of the will.

The last paragraph of said sub-division five substantially directs that this personal property at the homestead should be sold, after the death of the wife of the testator, and the proceeds equally divided between his two grand-daughters. The first part of this residuary clause devises and bequeaths-all the rest, residue and remainder of the estate, both real and personal to the executor, in trust, to sell and use the proceeds; first, to equalize certain advancements charged on the testator’s books and afterwards to divide the remaining fund equally between his two grand-daughters afore • said.

It, therefore, plainly appears from these residuary provisions that the testator supposed there would be personal property remaining undisposed of after setting aside that which is bequeathed by the second and third clauses of his will; and to provide for the distribution of that unbequeathed personalty, he gave the specific directions contained in said subdivision five.

I think, therefore, from the whole will it was apparently the intention of testator to give to his son, with the Arcade, all the furniture and other personal property connected with the same and suitable and appropriate for use therewith. And I must hold that the words “personal property” are to be restricted in their meaning accordingly. The executor, therefore, will take under the bequest in the third subdivision of the will the property referred to in the inventory as “in Arcade, inner office, valued at $521; in Arcade, outer office, valued at $240.50; in Arcade, in cellar, valued at $56; in Arcade, in shop, valued at $166; in Arcade, scattering, valued at $80; while the money, evidences of deposit, securities, choses in action and other personal property, referred to in the inventory as in and upon the Arcade, will be distributable in accordance with the directions of the fifth subdivision of the will.

I do not think that any special stress is to be put upon the fact above referred to, that certain articles of personal -property are excepted out of the operation of the bequest in the second clause, while that in the third clause is not so restricted. It may well be that the learned judge who drew the will added the words “other than money, choses in action, and securities,” in the second clause to enlarge the meaning of the preceding words “ all other personal property” in accordance with the decision. Hotham v. Sutton, 15 Vesey, 319. If the bequest in the second clause had ended with the words “personal property,” no plainer case could have been found for the application of the rule that general words in a bequest following a specific enumeration of articles in a particular locality will be confined to articles ejusdem generis. Gibbs v. Lawrence, 30 Law Journal (N. S.) Eq., 170; Beardsley v. Hotchkiss, 96 N. Y., 212. It may be further said that if it was intended by the words “personal property” in the third clause to carry all property of every kind and nature in and upon the Arcade, answering the description of personalty, a strict and accurate use of language would not have required the insertion therein of the word “furniture,” for furniture is personal property always, and would be effectually bequeathed by the general words. The property not herein held to be covered by the bequest to the executor in said third clause of the will must, therefore, be accounted for in this proceeding. Further hearing may be had on five days’ notice to parties interested.


author: Spring, S.

text:
    In the Matter of the probate of the Last Will and Testament of Jacob Rounds, dec’d.

      (Surrogate’s Court of Cattaraugus County,

      Filed January 8, 1887.)

    Will—Pbobate of—Failure of witnesses to recollect publication.
    A will should not be refused probate because the witnesses fail to recollect its publication, when there is a full attestation clause and the other circumstances are confirmatory of a valid execution.

      Chas. D. Van Aernam, for proponent; W. W. Waring, for contestant.
   Spring, S.

The instrument propounded was executed in April, 1877. It was drawn by a man familiar with the execution of wills, and he personally supervised its subscription and attestation.

The testator was competent to make a will and was under no restraint. The witnesses saw him sign the instrument; they knew its character. They were requested to sign it as witnesses, and did so, in the presence of testator and of each other. Thus far we have not passed beyond the verge of the undisputed testimony in the case.

The only controversy arises over the publication of the will by testator. Mr James, one of the witnesses, testifies, that from his recollection testator, or the draftsman, declared the instrument to be his last will and testament, while Mrs. James, the other subscribing witness, is of the impression, and that quite positively, that no such declaration was made. This conflict in the testimony compels us to consider the circumstances surrounding the ex ecution of the instrument to aid in ascertaining the probable truth of the matter, as the subscribing witnesses are the only persons living who were present at the signing of the paper propounded, and these all point to a compliance with the statute.

In the first place, the scrivener, though not an attorney, had quite frequently attended to the execution of wills prior to this time, and was familiar with the requirements of the statute pertaining to their execution.

2. The will was executed over nine years ago, and it is not strange that the witnesses in that time have forgotten the particulars of an isolated transaction, the details of which they did not regard as of any special significance, and they did not therefore make any marked impressions upon their minds.

3. Mrs. James was anxious to return to her home, where she had visitors awaiting her, so that in this anxiety she might very naturally pay little attention to the details of the execution of the document she was called to sign.

4. These witnesses were informed before leaving home that the paper they were to witness was the will of Mr. Rounds, so that the reiteration of this fact, already known to them, when they were in the room with testator would make no particular impression upon them.

5. There is a complete attestation clause to the will filled out by the draftsman, showing that he then had in mind the requirements of the statute as to the execution of wills.

These circumstances, taken in connection with those shown by the uncontroverted evidence, lead me to the conclusion that the statutory requirements were fairly complied with.

When simmered down, the testimony of the witnesses is no more than a failure of recollection as to the publication of the will, and the authorities are uniform in holding that a will should not be rejected on that account, when there is a full attestation clause and the other circumstances are confirmatory of a valid execution. Brown v. Clark, 77 N. Y., 369; Orser v. Orser, 24 id., 51; Matter of Kellum, 52 id., 517; In re Pepoon, 91 id., 255.

The more recent cases, while adhering to the necessity of a substantial compliance with these provisions of the the statute governing the execution of wills, yet are more lax in their interpretation than the earlier decisions, providing the circumstances indicate that no fraud was practised upon the testator, that he was competent and free from restraint.

They do not uphold thwarting the wishes of testator merely because a subscribing witness fails to remember the details of the transaction making up the execution of the will, when the circumstances show a fair compliance with the requirements of the statute. In re Beckett, 8 N.Y. State Rep., 764; Dack v. Dack, 84 N. Y., 663. Cases cited above.

The will must be admitted to probate, and a decree will be entered accordingly.


text:
    In the Matter of the Accounting of the Executor of George Hughey, Deceased.

      (Surrogates Court of Cattaraugus County,

      Filed January 14, 1887 )

    1. Merger—Where a lesser and greater estate become vested in THE SAME PERSON, THE LESSER WILL MERGE IN THE GREATER.
    The testator, for several years preceding liis death, had leased a farm to his son. These leases were given from year to year, each terminating on the first of March The testator died during the month of March. It was insisted by the parties contesting the executor's account, that inasmuch as the tenant was then occupying the farm in pursuance of the lease he should pay the rent for that year, notwithstanding the premises were devised to him in fee. Held, that where a lesser and greater estate become vested in the same person, there is a merger of the lesser in the-greater.
    2. Executor—Assets—Rents not vet accrued at testator’s death will. NOT PASS AS ASSETS TO THE EXECUTOR—3 R. S., TITLE 3, CHAP. 6, ART. 1, §6, subd. 7.

      Held, that the rents not having accrued at the time of the testator’s decease, they did not pass as assets to the executor as part of the personal estate of the decedent
    4. Contract—For compensation for services—When not implied.
    The daughter of the testator continued to reside with him after attaining her majority as a member of his family without any agreement that she was to receive compensation for her services. Held, that no such agreement would be implied

      Wm. Manley, for executor; W. T. Laidlaw, for John Hughey; G. M. Bider, for contestants.
   Spring, S.

For several years preceding his death testator had leased his farm in Ashford to his son John. These leases were given from year to year, each terminating on the first of March. Testator died during the month of March, 1884, and inasmuch as the tenant was then occupying the farm in pursuance of the lease, the contestants insist that he should pay the rent for that year, notwithstanding the farm was devised to him in fee by his father. This position is untenable.

It is an elementary principle that when a lesser estate and „a greater become united in the same person, a merger of the lesser estate in the greater follows. Kent’s Com., vol. 4, p. 99; Washburn on Real Property, vol. 3, p. 95 (3d ed.); Jenkins v. Van Schaack, 3 Paige, 242; Hosford v. Merwin, 5 Barb., 51; 4 Paige, 639; Mixon v. Coffield, 2 Ired. (N. C.), 301.

There is still another insuperable objection to compelling the executor to collect these rents of the tenant. They had not accrued due at the time of the decease of the testator, and in order to pass as assets to the administrator or executor as part of the personal estate of decedent, rents must be due and payable at the time of his death. Revised Statutes, vol. 3, tit. 3, chap. 6, art, 1, § 6, subd. 7 (Banks & Brothers [6th ed.], vol. 3, p. 90); Marshall v. Mosely, 21 N. Y., 280.

The claim" of Eoxanna Huffstader cannot be allowed. She is a daughter of testator and resided with him after attaining her majority as a member of his family without any agreement that she was to receive compensation for her services, and it is well settled no contract will be implied in that class of cases. Williams v. Hutchinson, 3 Com., 312; Wilcox v. Wilcox, 48 Barb., 327.

Other than this the accounts will stand as filed and decree he entered accordingly.


author: Bollins, S.

text:
    Estate of Willliam Tilden, Deceased.

      (Surrogate’s Court, New York County,

      Filed January 19, 1887.)

    1. Surrogate's Court—Power op Surrogate to modify or correct decrees and orders—Code Civ. Pro., § 3481, sued 6
    The surrogate has authority, under subd. 6 of $ 3481, Code of Civ Pro., to open, vacate, modify or set aside a decree or order of his court But the powers thus conferred must be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers.
    3. Same—Ignorance of the law not sufficient.
    Where an application was made in an accounting to correct the compensation allowed the executors of testator's estate on previous accountings, because it was allowed upon an erroneous theory of law. Held, not a sufficient reason.
   Bollins, S.

The fourth account of the executors and trustees of this estate was settled by a decree entered April 30, 1880, and the fifth by a decree entered on June 29,1885. The former sanctioned the retention by the accounting parties of the sum of $9,339.59 as compensation to which, under the testator’s will, they had become entitled for their services. The latter sanctioned, a similar retention for a like cause of the sum of $10,506.66.

None of the parties interested in the estate made any objections to thesecredits.

Upon the sixth accounting of the executors and trustees, which went into decree on December 6, 1886, their claim to compensation was challenged and was in part disallowed.

I am now asked to “correct ” the decree of 1880 and 1885, upon the ground that the sums therein allowed the executors for their services were in excess of the sums to which they would have been found entitled, upon application of the tests established by the referee and the surrogate upon the sixth accounting.

The executors have asked and obtained leave to resign and have now filed an account of their management of the estate since October 25, 1885, wherein they claim commissions in the sum of about $4,000.

It is insisted that, without formally opening or setting aside either of the decrees complained of, the alleged over-payments may be rectified by a present disallowance of commissions in an amount equal to such over payment. In my memorandum of August 14, 1886, I intimated that if the executors, who had theretofore asked to be allowed commissions on certain transactions covered by previous accountings upon the ground that they had not retained all that they were entitled to claim, were correct in their contention, the relief prayed for might be granted, even without opening the decrees by which the former accounts had been settled; and this, because in view of the special directions of the will regarding their commissions, whereby they were permitted to retain them “from time to time,” the allowance of such retentions as were sanctioned by those decrees could not be taken as an adjudication that the sum retained was all to which the accounting parties were entitled.

It by no means follows that a disallowance of any sums heretofore withheld, the withholding of which has been approved by the surrogate, can now be lawfully effected, - until the decrees adjudicating that approval shall have first beep opened or vacated.

Now, the moving party herein has not made out a case which will justly any interference with either of the decrees that he assails. The surrogate has authority under subdivision 6 of section 2481 of the Code of Civil Procedure, to “open, vacate, modify or set aside a decree or order of his court.” But the powers thus conferred, the section proceeds to say, “ must be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers.”

There is no proof that the provisions sought to be corrected, even assuming them to be erroneous, were fraudulently or collusively inserted, or, are the result of clerical errors, accident or irregularity, or that failure to object to their inclusion in the decrees was due to the excusable negligence of the party now claiming to be prejudiced. His con tention simply amounts to this: That the compensation allowed the executors on the fourth and fifth accountings was allowed upon an erroneous theory of law. This will not suffice. Yale v. Baker, 2 Hun, 468; Dorke v. McClaran, 41 Barb., 491; Decker v. Elwood, 3 T. & C., 48; Sipperly v. Baucus, 24 N. Y., 46; Melcher v. Stevens, 1 Dem., 123; Munroe’s Estate, 15 Abb. Pr., 363; Brick’s Estate, 13 Abb. Pr., 12, 36; Matter of Tilden, 98 N. Y., 434; Wright’s Accounting, 10 Abb Pr. (N. S.), 429; Story v. Dayton, 22 Hun, 450; Singer v Hawley, 3 Dem., 571, Matter of Hawley, 100 N. Y., 206; Farmers Loan and Trust Co. v. Hill, 4 Dem., 41.

The application must, therefore, be denied.


text:
    Estate of Elias. E. Aaron, Deceased.

      (Surrogates Court, New York County.

      Filed January 17, 1887.)

      1. Surrogate—Authority to direct payment by temporary administrator—Code Civ Pro., § 2672
    The surrogate has authority to direct a temporary administrator to defray the expenses of a controversy over probate only to the extent of the stenographer’s or referee's fees on the contest of a will or administration.
    2 Same—Practice—Costs to whom allowed—Code Civ. Pro., S§ 2561. 2562 ■
    Costs if allowed, must be allowed not to counsel, but to parties in accordance with the provisions of Code Civ Pro , § 2561 The surrogate has no authority to grant a per diem allowance for time spent in preparation except under the circumstances indicated in Code Civ. Pro., § 2562.
    8. Attorneys—When order of substitution necessary
    The fact that an attorney has acted for a temporary admistrator in pro ceedings connected with the estate, does not preclude such a party from availing himself in other proceedings of the services of other attorneys. In such case no order of substitution is necessary,

      Tuttle, Coodell & Broolcs, for Chas. E. Aaron, temp, adm’r and ex’r; Langbein Bros. & Langbein, for Geo. F. Langbein.
   Rollins, S.

Pending a controversy in this court over

the claim to probate of two papers, each of which had been propounded as solely constituting this decedent’s last will and testament-, his son, Charles E. Aaron, who had appeared in the proceeding as a party contestant, was appointed temporary administrator of the estate, and entered at once upon the duties of that office.

The proceeding resulted, on November 25, 1885, in a decree which adjudged that neither of the papers aforesaid was entitled to probate. That decree contained the following provisions :

“It is ordered * * * that Charles E. Aaron, as temporary administrator of Elias E. Aaron, deceased, pay to George F. Langbein, Esq., attorney for Charles E. Aaron, the sum of $1,000 costs out of the estate of said deceased; and that he pay to Gilbert H. Crawford, Esq., attorney for Fitzgerald Tisdall and Isaac A. Drake (contestants in the proceeding), the sum of $500 costs out of the said estate.”

After this decree was entered the genuine will of this decedent was admitted to probate, and letters testamentary thereon were issued to the said Charles E. Aaron

On June 30, 1886, Messrs. Tuttle, Goodell & Brooks, as “ attorneys for Charles E. Aaron, temporary administrator and executor, ” obtained from the surrogate an order to show cause why so much of the decree of November, 1885, as awards costs out of said estate directly to the said attorneys, Langbein and Crawford, and directs that the same be paid by Charles E Aaron, as temporary administrator, ■should not be vacated, and why such other relief should not be granted as might seem just.

Mr. Langbein responded to the order to show cause by filing certain affidavits, wherein it was, among other things, alleged that a law firm in which he had been and then was a partner, had appeared in this court in divers specified proceedings as the attorneys of record of the said Charles E. Aaron as temporary administrator, and that such firm had not consented that any other person or persons be substituted in its stead as attorney or attorneys for such temporary administrator, and that no order had been entered in this court directing such substitution.

It is claimed that for this cause the moving party herein has no right to make his motion by his present attorneys, and it is also claimed that he has no standing to make it at all, as he was not, in his capacity of temporary administrator, a party to the controversy over probate.

Neither of these objections is sound. The fact that the Messi’s. Langbein have acted in certain proceedings connected with this estate as the attorneys for the moving party herein, does not preclude such party from availing himself in other proceedings of the services of other attorneys. It may be that the respondent is technically correct in insisting that, as the temporary administrator, as such, was not a party to the proceeding for probate, he should, before moving to vacate the decree complained of, have sought and obtained leave of the court so to do; but if he asks no more than justice requires, his application may properly be treated as if all formal preliminaries had been by him duly observed.

The decree itself made him for the first time a party to the proceeding of which it was the culmination. It directed him to pay out to certain people, for certain specified purposes, certain moneys in his hands belonging to this estate. He should certainly be permitted to show, if he can, that that direction was not within the jurisdiction of the court, and should he be successful, the decree thus discovered to be erroneous must be set aside.

First. The first ground of complaint against this decree is "that the surrogate was without authority to order any part ■of the expenses of the probate controversy to be paid by the temporary administrator. The general powers and duties of such an officer are specified in sections 2672 and 2674 of the Code of Qivil Procedure. The latter section authorizes -him, under certain circumstances, to pay debts contracted by the decedent in his lifetime. Section 2672 provides that the surrogate may authorize a temporary administrator to pay a legacy or a distributive share, or expenses incurred by him in the administration of his trust, or the funeral expenses of his decedent, or “stenographer's or referee's foes on contest of a will or administration.”

The express grant to the surrogate of authority to direct ■a temporary administrator to pay out moneys for the purpose specified in the words above italicized affords of itself a strong argument in support of the proposition, that, to that extent only, can a temporary administrator be empowered to defray the expenses of a controversy over probate.

The chief function of that officer is to collect and preserve the estate. He can lawfully part with its assets only in cases and under circumstances distinctly specified in the statute. This view is in harmony with all the adjudicated cases that have fallen under my observation.

It was decided in 1859 in the Matter of Parish (29 Barb., 637,) that the collector of a decedent’s estate could not be ordered by the surrogate to pay the costs and expenses of a proceeding for the probate of such a decedent’s will.

In 1877 it was held in Mattter of Haskett (3 Red., 165,) that prior to the enactment of section 10, chapter 359, laws of 1870, the surrogate had no authority to direct such a collector to pay the claims of his decedent’s creditors, and that after that enactment such authority could be exercised only within the limitations which the section prescribed.

It was held in Matter of Cogswell, decided in March, 1880 (4 Red., 341), that this court could not direct a collector to pay his decedent’s funeral expenses; and in Riegelman v. Riegelman, decided in October of the same year (4 Red., 492), that it could not direct him to pay a legacy or distributive share. Either of those directions wxrnld be lawful under the Code as it now stands. Section 2672, supra.

Surrogate Livingston declared in Matter of Badger (7 Law Bulletin, 71,) that he was powerless to grant an order directing a temporary administrator to pay the costs of a contested proceeding for the grant of letters of administration.

In view of the language of section 2672, the decisions above cited, and the history of the legislation touching collectors and temporary administrators, I am convinced that the direction in the decree here complained of was unauthorized.

Second. It was unauthorized for another reason and in another particular. The costs for whose payment it provided were awarded directly to counsel. Since the repeal of chapter 359 of the Laws of 1870 no such award has been warranted by law. Costs, if allowed at all, must be allowed not to counsel, but to parties, in accordance with the provisions of 2561 of the Code of Civil Procedure. Walton v. Howard, 1 Dem. 103.

Third. The direction for the payment of $1,000 to Mr. Langbein was based upon a bill of costs presented by him, and upon an affidavit alleging that, in the performance of' his duties as attorney in the probate proceeding, he had been necessarily employed for ninety-three days. If all that time had been occupied in the trial the amount allowed by the decree would not be in excess of the statutory limit; but it appears, upon examination of the affidavit referred to, that Mr. Langbein was actually engaged in court on but fifty-one days, and that he devoted the remainder of the ninety-three days to preparation for trial. Now for time-expended in such preparation the surrogate has no authority to grant a per diem allowance except under the circumstances indicated in section 2562; and that section relates to accounting proceedings exclusively. The maximum award that could properly have been made on the disclosures of Mr. Langbein’s affidavit and bill of costs was $584.24.

That award would have afforded inadequate compensation for the zealous and efficient services that were rendered by him in the proceeding for probate. Indeed, the entire-amount allowed by the decree is much less than those services were fairly worth as between counsel and client; but the limitations of section 2561 cannot for any cause be overpassed.

The motion of the temporary administrator must be granted and the decree of November 25, 1883, must be amended, so that the last paragraph may read as follows: “ And it is further ordered that there be allowed to said Charles E. Aaron, one of the contestants herein, the sum of $584.74 as costs and counsel fee of George F. Langbein, his counsel in these proceedings, the same to be paid out of the funds of this estate by such person or persons as shall hereafter be -granted letters of administration or letters testamentary upon the estate of this decedent; and that there be allowed to the contestants, Fitzgerald, Tinsdall and Isaac A. Drake, as costs and counsel fee of Gilbert H. Crawford, their counsel, the sum of $250, to be paid in the same manner as aforesaid, out of the funds of this estate. ” The last named sum is all that can properly be allowed the parties represented by Mr. Crawford under the circumstances disclosed by his affidavit.


author: Rollins, S. Said Denio, J.,

text:
    In the Estate of Harriet Gross, Deceased.

      (Surrogate's Court of New York County,

      Filed January 28, 1887 )

    1. Wills—Validity of—Testamentary capacity.
    The fairness, propriety or justice of the dispositions made by a will can not be used as a test of its validity. Perverse opinions and unreasonable prejudices must not be confounded with mental alienation. These qualities of mind may exist even in a high degree, and yet so far as regards the view which the law takes of the case, the subject may be sane and competent to perform a legal act.
    2. Same—Undue influence—What constitutes.
    For the purpose of establishing the fact that undue influence has been exerted over a testator, it is not sufficient to show that the will is the result of affection or gratitude, or the persuasion which may legitimately be used, but the influence must be such as to overpower and subvert the will of the testator, thus producing a disposition of property which he would not have made if left freely to act his own pleasure.
    3. Same—Burden of proof.
    The burden of establishing that such unlawful influence has been exercised, rests upon the one who alleges it.

      Herbert F. Kettell, for proponents; Cephus Brainard, for contestants.
   Rollins, S.

This decedent, an unmarried woman, died in the city of New York on November 27, 1884, at the age of 57 years. A paper purporting to be her last will and testament was soon afterwards propounded in this court. Its admission to probate has been strenuously opposed by John L. Gross, her brother, and by her two sisters, Marie L. Van Woert and Rachel B. March. These three persons constituted at her death, and still constitute, her only next of kin.

The disputed paper does not include them, or any one of them, in its list of beneficiaries. It gives $20,000 to a cousin of the decedent residing in Paris, France and $5,000 to each of two other French cousins. It gives to five specified benevolent or reh'giou ' ocieties sums amounting in all to $7,000. It gives $5,000 to John L. Moore, who is named as executor, and makes him sole residuary legatee.

The other bequests are as follows:

To Rev. Dr. John Hall, minister of the Fifth Avenue Presbyterian church, whom Miss Gross characterizes as her “beloved pastor,” $5,000;

To Dr. Leroy M. Yale, to whom she refers as “my faithful friend and medical adviser,” $1,000;

To William L. Moore and James A. Moore, her “friends,” $2,000 each;

To Ellen M. Johnson, who had acted for about three years as her seamstress, $250;

To Elizabeth Bush, a colored woman, who testified that she had sewed for Miss Gross at intervals “since seven years before the riot,” $1,000;

To Sarah B. Courtney, formerly a housemaid in her employ, $1,000.

To Carolina Syoberg, to whom she refers as “my maidservant, who for many years has been my constant and faithful friend, $12,000, and a quantity of clothing whose value is not disclosed.

First. The contestants’ objection that in the formal execution of this instrument there was a failure to comply with the requirements of law has not been pressed by their counsel. The evidence upon this question is so clearly in favor of the proponent that I think it unnecessary to discuss it.

The objection must be overruled.

Second. Was Harriet Gross possessed of testable capacity when she executed the paper here in controversy, or, on the other hand, is it true, as the contestants insist, that in ignoring their claim to partake of her testamentary bounty, she was governed by an insane delusion that that claim had been forfeited by their unworthy conduct towards herself ?

From the date of her birth up to the year 1875, the decedent was a member of a household which for many years prior to 1870 had consisted of her father, her mother, her unmarried sister Charlotte and herself, and had been dwelling at No. 109 East Seventeenth street, in this city. It was there that her father died in 1870, her mother in 1872, and Charlotte in 1875. Within a year after the death of the latter, Harriet moved away from the homestead, and for the remainder of her life she resided either in some hotel or in some private lodging-house, at or near New York.

The precise nature of the relations between herself and these contestants in the lifetime of their parents, and sub sequently in the lifetime of their sister Charlotte, is not disclosed by the evidence. But it is entirely clear that after Charlotte died there subsisted at all times a most plentiful lack of harmony.

John was one of the executors of his father’s will, and the interests of Charlotte and Harriet thereunder were held by him uninterruptedly until Charlotte’s death. Indeed, he continued in possession and control of Harriet’s share until March, 1877, when he surrendered it, pursuant to her demand, to Mr. John C. Shaw, as her attorney.

It is claimed by the contestants that this demand was unreasonable and that there were no solid grounds for the decedent’s dissatisfaction with her brother’s management of her affairs.

It appears, however that although the sums he had paid out on her account up to the time of his dismissal exceeded slightly, if at all, the income of the funds which he had been holding as her agent, he had charged her—it would seem, without very just cause—with extravagance, and had on some occasions put her to inconvenience by delay in honoring her requests for money required for the defrayment of her current expenses.

There was another circumstance that probably had great weight with the decedent in inducing her to dispense with her brother’s services.

Before she had retired, in April, 1876, from the house in Seventeenth street where she had so long resided, a portion of the furniture and household goods which that house contained had been sold at auction and the proceeds had come to the hands of her brother John. The remaining portion, together with a quantity of wearing apparel, jewelry and personal ornaments were sent away to storehouses, where, without her knowledge, they were deposited in the name of John L. Gross, administrator, he having theretofore taken letters of administration upon the estate of his sister Charlotte.

These articles were of no great value, but they proves to be a prolific source of family discord and dissention. Some of them Harriet claimed as hers by actual purchase, others as gifts from her father or her mother or Charlotte, and others still as obtained by herself and Charlotte in common, and with a mutual understanding that when either should die the property should belong to the survivor.

Soon after Charlotte’s death John became possessed, as her administrator, of a certain bond for $2,500, which Harriet insisted was a gift from her deceased sister to herself.

In the inventory of Charlotte’s estate filed in January, 1876, and in an account filed in January, 1877, John recognized the existence of these claims without either acknowledging or disputing their validity. To this account Harriet filed objections. The issues were referred to an auditor on January 29, 1877, and there ensued before him a long and animated controversy. At some time prior to April 5,1873, he made a report which sustained Harriet’s right to a part of the property in dispute, but held that as to other parts her claim was untenable. Certain articles were found to be hers exclusively; certain others to be assets of her sister’s estate; others still to be the common property of that estate and herself. On April 5, 1878, a decree was entered con firming this report and directing a division in accordance with its terms.

For at least a year before that decree was entered, friendly intercourse between Harriet and the contestants had utterly ceased. Like herself, they were all living in the city of New York, but she had paid no one of them a visit, and no one of them had visited her or had made any attempt to do so; which of the four was most at fault for this unhappy state of affairs I shall not undertake to determine.

Within three weeks after the entry of the decree above referred to, the decedent was advised by Wetmore and Bowne, attorneys for the administrator of Charlotte’s estate, that the assets of that estate were about to be distributed and that her own share therein was $15,000 or $16,000.

That this money might not be lodged in the hands of her brother John, for whom she had long entertained both distrust and aversion, she gave to Mr. William L. Moore her power of attorney for its collection. She gave him also an other power of attorney that he might obtain possession of such of her property as was then held by Mr. Shaw

On April 24,1868, Mr. Moore visited the office of Wetmore and Bowne, and, in the presence of John Gross, made a demand for the moneys due this decedent. His demand was rejected. A similar application which he made to Mr Shaw was equally unsuccessful though for a different cause. A postponement of the transfer was agreed upon between those gentlemen, and before the demand was renewed Mr. Shaw had been served with an injunction restraining him from parting with any funds in his hands belonging to Harriet Gross.

That injunction had been procured in aid of a proceeding instituted by the contestants, John L. Gross, Rachel B. March and Marie L. Van Woert, for the issuance of a commission to make inquiry regarding the competency of their sister Harriet to manage herself and her affairs.

Their petition set forth among other things that “ for the space t)f six months last past” {i. e., next preceding April 29, 1878, the day the petition bears date), the decedent had been ' a 'person of unsound mind,” and that “her actings and doings ” had been “those of an insane person.”

The commission prayed for was appointed. Early in June, 1878, a motion was made for its supersession and for the dis • missal of the petition upon which it was granted. At the hearing of this motion numerous affidavits were submitted in its support. These affidavits tended strongly to show that the allegations of the petition were without foundation. The affiants were the decedent herself, several of her lay friends and acquaintances, and, as expert observers of her mental condition, Dr. Lewis A Sayre, Dr. Leroy M. Yale, Dr. Meredith Clymer and Dr. Robert. Taylor On the 18th day of July, 1878, Mr, Justice Potter granted the decedent’s motion and an order was thereupon entered superseding the commission and vacating all stays and injunctions which had hampered her control of her property and estate.

The disputes over the furniture, jewelry and wearing apparel long survived the entry of the decree of April 5, 1878. On December eighth of that year Harriet com menced, in the supreme court, an action against her brother for the conversion of divers articles to which that decree did not, as she claimed, relate. This action was referred on the 10th of June, 1880. A year later the defendant’s attorney offered to allow judgment to be taken against him for about seventy-five of the articles specified in the decedent’s complaint at prices aggregating about $450, with costs in her favor amounting to about $200. This offer was accepted by her attorney

Meanwhile, on December 14, 1878, this decedent had applied to the surrogate for an order directing the sale of the articles covered by his decree of April, 1876. Her application led to the entry on February 15, 1879, of an order appointing two referees who were directed to appraise, assort and distribute the property in dispute.

Then followed a second controversy longer and more vexatious than the first, and more discreditable to all the-parties litigant. Harriet struggled to maintain her claim to individual ownership of the disputed property and her brothers and sisters were united in their opposition.

The report of the referees was filed on January 27, 1880. It was more favorable to the decedent than the report previously submitted, and on February 10, 1880, the contestants filed numerous objections to its confirmation. Those objections were overruled by a decree signed by the surrogate on June 16, 1880

I have referred to these litigations in so much detail that I shall not stop to specify numerous others in which the decedent was engaged on the one side, and one or more of the contestants on the other. They must all be taken into serious account in considering the sentiments which pro - bably actuated the decedent when she addressed herself to the preparation of her will, and in considering the claim of the contestants that her conduct towards them is inexplicable upon any theory consistent with her sanity.

In the spring of 1878, while some of these lawsuit were in progress, Harriet sent a long, rambling, virulent letter to Mrs. March, and another, longer, more rambling and more virulent to Mrs. Van Woert.

• These letters are very extraordinary productions. They were written piecemeal between the latter part of December, 1877, and the latter part of March, 1878.

Their leisurely composition was due, according to the testimony, partly to the fact that rheumatism in her fingers made the task of writing difficult and painful to the decedent, and partly to her determination to say her say to the full.

When these letters, which constituted the chief property of the petitioners in the lunacy proceeding, first fell under my eye they produced a decided impression in favor of the contestants. They seemed to be a farrago of sheer nonsense from beginning to end. I could scarcely doubt that they were the emanations of a disordered intellect. But when Mrs. [March and Mrs. Van Woert were examined as witnessess, it appeared that, to their minds, the contents of the-letters were quite intelligible; that some of the various; incidents to which they allude had actually occurred, and that as to others, it was easy to see how the decedent might have believed them to have occurred without impeachment of lunacy.

Counsel for the proponent, in his summing up of this cause, reviewed these letters sentence by sentence in the light of the evidence, and succeeded in the main in giving a reasonable explanation to their seemingly mysterious contents.

■ They are illiterate in the extreme. The writer’s spelling is far from correct, and the frequency of her resort to underscoring phenomenal; she employs capital letters with much greater frequency than correct usage sanctions, and if the punctuation marks had been distributed at random they would very likely have fallen into more suitable places than the places which they now occupy.

But it is not shown that the decedent ever spelled better, ever punctuated more accurately, or was ever more sparing in her use of capitals and italics than on the days she was employed in writing the letters now under consideration; and it is not pretended that, prior, to the death of her father, she showed any indications of mental derangement..

Upon a review of the mass of 'evidence taken at this trial I cannot •doubt, that long before she executed the paper here in dispute, Harriet Gross had become fully convinced that her brother John had been guilty of unfraternal, unfair and dishonest conduct, and that in siding with him-against herself, and for divers other causes her sisters had merited her just indignation.

She evidently supposed herself entitled to all the property left in the Seventeenth- street house at Charlotte’s death which afterwards became the subject of controversy, and though, as regards a portion of that property, she had no claim which she could enforce in the courts, I cannot find that her belief to the contrary was extravagant or absurd.

While I am not justified in asserting that there was in fact a definite understanding between herself and Charlotte that the articles of household furniture and of personal adornment which were the exclusive property of one or the other, or were owned by the two in common, should, at the death of either, become the absolute property^ of the survivor, the existence.of such an understanding is quite consistent with all the testimony, and would explain in great measure why the decedent was so greatly incensed against her brother and sisters for insisting upon the maintenance of their strict legal rights, and disregarding what she may have honestly deemed their obligation in honesty and conscience to recognize her claim.

If it be assumed that while entrusted with the management of his father’s estate, the estate of his sister Charlotte and the property of this decedent, the contestant John Gross acted at all times with most scrupulous fidelity to the decedent’s interests, and that during all that period, his sisters Eachel and Marie treated her as well as she deserved to be treated, or even better than her conduct merited; it by no means follows that her conviction that she had been cheated by her brother and ill-used by her sisters was an insane delusion.

Her sentiments in that regard were constant and deep-rooted. They were avowed on numerous occasions and to very many people with whom she was on terms of intimacy and confidence.

She seems to have been a woman of jealous and suspicious nature, excitable, contentious, obstinate, revengeful; all in all, one with whom it might very likely have proved to be no easy task for her family to maintain pleasant relations, even had they been disposed, as they apparently were not disposed, to make great sacrifices for the sake of peace and harmony.

That they should have pursued towards her the very course that they in fact pursued for the eight years preceding her death may not be altogether surprising; but I can readily see how Harriet, with her peculiar disposition and temperament, might, in the exercise of sound mental faculties, have found satisfactory reasons for all that she believed, and said, and did, in her intercourse and non-intercourse with her immediate kindred.

Even if uncharitableness, malice and revenge were the sole motives that prompted her to exclude the contestants from sharing in such estate as she should leave at her death, this challenged paper must nevertheless stand, if it is the product of a sane mind and a free will.

I have neither the inclination nor the right to test its validity by the fairness, propriety or justice of its dispositions'. To apply such a test would be to subvert that absolute control over his posthumous estate which is vested in a testator by express authority of law.

The animosity which the decedent displayed towards all these contestants in the letters of March, 1878, was doubtless intensified by their subsequent efforts to have her declared insane. If, before the inception of the lunacy proceedings, Harriet believed that they had been striving to rob her of her heritage, it would have been strange indeed if that belief had not been still moré firmly established in her mind at the time she entered upon the preparation of her will.

The confirmed feeling of hostility which she then entertained for the contestants was the result of obvious and in part of very recent causes having actual existence; it was very far from being the mere offspring of a perverted imagination.

Said Denio, J.,

pronouncing the opinion of the court of appeals, in American Seamen's Friend Society v. Hopper, 33 N. Y., 619:

“The question which arises upon the evidence is this: Whether his (an alleged testator’s) conduct and declarations-were simply the manifestations of an excitable, coarse, ill-regulated and suspicious mind, or were the consequences, on the other hand, of an insane delusion which led him to believe in the existence, on the part of his wife and his relatives, of conduct and intentions such as he imputed to them. * * * On questions of testamentary capacity courts should be careful not to confound perverse opinions and unreasonable prejudices with mental alienation. These qualities of mind may exist, even in a high degree, and yet, so far as regards the view which the law takes of the case, the subject may be sane and competent to perform a legal act.”

_ The facts of the case at bar bear, in many of their essential features, a close resemblance to those upon which the court of appeals passed in Coit v. Patchen, 77 N. Y., 533.

The allegations of the contestants in that case were that Mrs. Coit, the testatrix, labored under insane delusions as to the conduct of her husband and of several other members of her family, who had instituted proceedings .for the appointment of a committee to take charge of her estate. The court said, Miller, J., pronouncing its opinion, that though the decedent’s conduct toward her husband tended to show an impairment of her mental faculties, yet in view of the disclosures that they were engaged in frequent quarrels, that litigations were pending between them, etc., etc., the circumstance could not be considered as controlling. “While there is much to condemn in the conduct of all the-parties,” says the learned judge, “it does not follow that an erroneous opinion formed amid such a conflict of feeling and passion was an insane delusion. In considering this branch of the case, it must not be overlooked that the decedent was a woman of strong will, who had passed a life of strife and turmoil, who had quarrelled with her husband, had a lawsuit with him, and possessed marked peculiarities of disposition and character which might well control her conduct.”

It was claimed by the appellants in Clapp v. Fullerton (34 N. Y., 190), that the testator whose mental capacity was there upheld by the court of appeals, was under an insane delusion as to the legitimacy of his elder daughter against whom he had made marked discrimination in his will.

The court said, through Porter, J.: “To sustain the allegation it is not sufficient to show that his (the decedent’s) suspicion in this respect was not well founded. * * * The right of a testator to dispose of his estate depends neither upon the justice of his prejudices nor the soundness of his reasoning. After analyzing the circumstances under which the decedent’s mistaken belief had originated, the learned judge adds: “It should be referred to weakness and credulity rather than to insane delusion. The repose of families has often been disturbed on grounds as slight and trivial as those which misled this testator.”

The decision of Sir John Nicholl in the famous case of Dew v. Clarke (3 Adams, 79), is greatly relied upon by counsel for these contestants. The decedent whose alleged will was there the subject of controversy, though he left a fortune of about £40,000, cut off his only daughter, a woman grown, with an income of less than £100 a year. The evidence satisfied the court that this daughter was dutiful and affectionate, engaging in her manners and exemplary in her conduct and character, and that her father sincerely and vehemently believed, and that, too, without the slightest substantial basis for so believing, that she was altogether profligate and depraved. He was wont to speak of her as “a fiend”—“a monster of vice”—“a very devil incarnate”—“Satan’s special property”—and from her earliest childhood he had treated her with almost unheard of ferocity. His conduct was found to be inexplicable upon any other theory than that of an extravagant and insane delusion. It is manifest that a conclusion based upon such a state of facts furnishes no just criterion for the termination of the case at bar.

It is claimed on behalf of the contestants that for several years preceding her death the decedent indulged in the use of intoxicating liquors to such an extent as to enfeeble her mental faculties, blunt her moral sense and pervert her judgment.

There is testimony tending to show that on several occasions her appearance and demeanor indicated that she was somewhat under the influence of alcoholic stimulants.

There is testimony on the other hand equally entitled to credence, to the effect that on other occasions no such indications were visible, and they are not shown to have been present at the time she planned or at the time she executed the paper here assailed.

The evidence upon this phase of the controversy, when examined in the light of the decision of the court of appeals, in Peck v. Cary (27 N. Y., 9), is found to fall far short of establishing the contestants’ claim. The decedent, whose will was there sustained, had for years before his death been a confirmed drunkard, who, as several witnesses asserted, had, within that time, scarcely ever been sober; he had been afflicted, more than once, with delirium tremens; while crazed with drink he had repeatedly sought to put an end to his existence, and his efforts had finally proved successful.

After commenting at length upon these facts, Denio, 0. J., pronouncing the opinion of the court, said: “It is not the law that a dissipated man cannot make a contract or execute a will, nor that one who has the habit of excessive indulgence in strong drink must be wholly free from its influence when performing such acts;” and he added that such acts would be valid and effectual in spite of such influence, unless performed when the actor was incapacitated by present intoxication, or unless a fixed mental disease had supervened upon his intemperate habits. To similar effect, see Gardner v. Gardner (22 Wend., 526), Handley v. Stacey (1 F. & F., 574).

It seems to me that the evidence as to this decedent’s occasional use of intoxicants has served to weaken rather than to fortify the claim that she was of unsound mind; for it is quite possible that her moods of excitement and depression may have been attributable, in part, at least, to the immediate effects of wine or spirits upon a nervous and sensitive organization. I cannot conceal my regret that the contestants should have seen fit, in bringing this matter to the attention of the court, voluntarily to supplement by their own oaths the somewhat scanty testimony furnished by other witnesses. The course which they have pursued in this regard inevitably provokes the thought that Harriet may not have been entirely wrong in her belief, that, in instituting the lunacy proceedings, they were actuated solely by a desire to obtain possession of her property for their own use; and this, at least, is demonstrated, that her belief, whether well founded or erroneous, cannot justly be charged to her as an insane delusion.

Careful reflection upon all the testimony has convinced me that when this paper was executed, its maker was competent to give it validity and effect as a will.

Third. It only remains to be considered whether the instrument which I have now found to have been duly executed by a competent testatrix, does or does not embody her free, unbiased wishes as to the disposition of her estate.

The law presumes the affirmative of this proposition.

Has that presumption been overthrown ?

The mere fact that the nearest relatives of a decedent have been utterly ignored in the dispositions of a paper propounded as his will, is sometimes sufficient of itself to throw a doubt over the validity of its claims to probate.

But, for reasons already stated, that fact is quite barren of significance in the case at bar. In view of the character of the decedent as shown by the evidence, and the hostile sentiments with which she had for years regarded these contestants, the execution of a will in their favor, on November 10, 1884 (the date of the paper here challenged), would have furnished far stronger evidence of her insanity than is discoverable upon any of the 433 type-written pages which make up the record of this trial.

Given a determination on her part to divert her estate from those to whom the statutes of descent and distribution would award it in the event of her intestacy, the dispositions of this alleged will are not such as to provoke a suspicion that they were adopted either in deference to the persuasion or in obedience to the coercion of any person or persons whomsoever.

Three years previously she had signed and published a testamentary paper, differing in some respects from that which is here offered for probate, but whose establishment would benefit none of these contestants to the extent of a penny. A comparison between the two instruments fails to reveal any radical changes in the current of the decedent’s affections or in the fine of her purposes—any changes that cannot be easily explained upon theories quite consistent with the exercise, on her part, of spontaneous and untrammeled volition.

Now, it is not seriously claimed that the dispositions of either of these instruments were unlawfully controlled or influenced by any other person than the decedent’s maid, Caroline Syoborg, who is named as a legatee in both. That Caroline Syoborg was unlawfully instrumental in bringing into existence the later of the two papers is extremely unlikely, in view of the fact that its operation as a revocation and annulment of the earlier would be greatly to her disadvantage.

By the will of 1881 she was appointed executrix, and was not only given a bequest of $10,000, but was also made the legatee of the wardrobe, jewelry, bric-a-brac, household furniture, clothing and ornaments of the decedent and of all her personal property, “ excepting money, bonds, stocks and mortgages.”

This was doubtless a very generous provision; and yet, iñ view of the circumstances under which it had its origin, I shall not undertake to say that it was lavish or extravagant.

In making it the decedent characterized the woman Caroline as “my devoted nurse and attendant, who has for many years been my constant and faithful friend.”

I have ransacked the evidence in vain to find that this characterization was false or that it was in the least exaggerated.

Caroline was called as a witness and was subjected to a long and searching examination, in which she displayed somewhat exceptional intelligence. If in her dealings with her mistress she had been as self-seeking and unscrupulous as the contestants claim her to have been, and had exercised the authority and control over her mistress which they insist that she did exercise, it is extremely unlikely that she would have contented herself with so small a fraction of the estate here in controversy, as will come into her possession by the establishment of this paper.

I have no doubt that its provisions in her favor were born of the attachment which her mistress felt for a loyal and attached servant. The existence of those motives to the bestowal of testamentary bounty wifi not suffice to make such bestowal illegal and invalid. Will of Hamersley, Daily Register, January 8, 1886, and cases cited.

“ It is not sufficient for the purpose of establishing undue influence,” said Earl, J., pronouncing the opinion of the court of appeals, in Marx v. McGlynn (88 N. Y., 357), “to show that the will is the result of affection or gratitude or the persuasion which a friend or relative may legitimately use; but the influence must be such as to overpower and subject the will of the testator, thus producing a disposition of property which he would not have made if left freely to act his own pleasure.”

The burden of establishing that such unlawful influence has been exercised rests upon one who alleges it.

The presumption of its non-exercise has not been overthrown by these contestants.

Their objections must, therefore, be overruled, and the disputed paper must pass to probate.


text:
    Estate of Burgess Cluff, Deceased.

      (Surrogate’s Court, New York County.

      Filed January 31, 1887.)

    Executors and administrators—Removal—Accounting.
    Where, upon an accounting before a surrogate, an executor was directed to invest and keep invested certain money belonging to the estate “ according to the trusts and provisions contained ' in his testator’s last will and testament, and said executor failed to make such investments: Meld, that he continued to hold said money as executor, and must account for it as such,

      Robert Owen, for petitioner; Emmet R. Olcott and William O. Judge, for resp’t.
   Rollins, S.

The respondent in the proceedings which culminated in a decree entered herein on the 30th of September, 1886, now asks that that decree be corrected by striking out the word “ executor,” wherever it occurs therein, and by inserting in its place the word “trustee,” so that by such decree as amended he will be charged in the latter capacity and not in the former. •

Certain preliminary objections to the consideration of this motion are interposed by the petitioner’s counsel. The application, they claim, should be denied on the ground of laches, and on the further ground that the moving party is in contempt of this court by reason of his failure to obey the directions of the decree now sought to be amended, and the directions of an earlier decree settling and adjudicating an account filed by him as executor.

I do not deem it important to pass upon these preliminary objections, for I am clearly of the opinion that the respondent’s application must be denied upon the merits.

The decree last referred to was entered on November 6, 1873. It adjudged and determined that, as executor, the respondent had in his hands a certain specified balance of moneys, audit contained the provisipns following: “It is further ordered, adjudged and decreed that the said executor retain, invest, and keep invested, the balance remaining in his hands after making the payments heretofore ordered * * * according to the trusts and provisions contained in said last will and testament.”

Now the decree of 1886 expressly adjudged that these directions were not complied with by the respondent. It matters not, therefore, whether he could or could not, under a true interpretation of his testator’s will, have relieved himself from future responsibility as executor by making proper investments of the funds in his hands as required by the decree of 1873. He did not in fact make such investment, and of a consequence has not become entitled to such relief.

This is the doctrine of Matter of Hood (98 N. Y., 363), and this doctrine has been emphatically reasserted by the court of appeals in another decision in Matter of Hood, rendered on the eighteenth of the present month. 5 N. Y. State Rep., 501.

Motion denied.


text:
    Estate of Antoinette Knittel, Deceased.

      (Surrogate's Court, New York County,

      Filed February 1, 1887)
    Surrogate’s Court—Proceedings to discover property—Inquiry when ordered—Code Civil Proceedure, §§ 2706, 2714.

      The representative of an estate is not accorded by Code Civil Procedure, §§ 2706, 2714. the right to examine a debtor of his decedent merely for the sake of ascertaining the nature and amount of such debtor’s liability to the estate

      John McCrone, for petitioner; Norwood & Coggeshall, for resp’t
   Rollins, S.

In the lifetime of Antoinette Knittel, this decedent, who died before she had attained her majority, one Margaret Knittel, now deceased, deposited in the Bowery Savings Bank, in trust for Antoinette’s benefit a certain sum of money. The administratrix of this estate has caused the president of such savings bank to be cited before the surrogate, and now asks that such president be examined in order that she, the petitioner, may be “fully advised as to said moneys and the detention by said bank of the same,” and in order that she may obtain payment of the same.

It is claimed by counsel for the bank that the petition shows on its face that the applicant is not entitled to the relief which she seeks and that such petition should, therefore, be dismissed.

I have no doubt of the purpose which the legislature aimed to accomplish by the enactment of sections 2706-2714 of the Code of Civil Procedure, the provisions of law here invoked by the petitioner. Those sections were designed to afford a simple and summary procedure whereby the executor or administrator of a decedent might obtain an order for the surrender and delivery of such money or other property belonging to such decedent’s estate as should be discovered to be in the hands or under the control of some persson or persons not lawfully entitled to the possession thereof.

The sections of title 4 of chapter 18, which precede section 2712, merely point out the course which must be pursued by the representative of a decedent’s estate in order to effect the result indicated in the last named section, i. e., the delivery of any money or property of such estate found to be withheld or concealed by one having no just title to its possession.

Whenever, therefore, it is apparent at any stage of a proceeding based upon the sections referred to that such a result is in the nature of things unattainable, the proceeding should terminate.

Assuming the truth of the allegations of this petition, it is clear that no disclosures, that might be made upon an examination of the person here cited, would justify such an order as is contemplated by section 2712, for it is true, as counsel for the respondent contends, that the moneys which were deposited in the Bowery Savings Bank by Margaret Knittel became at once the property of the bank, and that by reason of such deposit a liability was created on the part of the bank, to pay thereafter an amount equal to such deposit, together with interest thereon according to the terms of the contract under which such deposit was made. Whitlock v. Bowery Savings Institution, 36 Hun, 460; Lund v. Seaman’s Bank for Savings, 37 Barb., 129; People v. Mechanics and Traders Savings Institution, 92 N. Y., 7.

While it must be assumed, for the purposes of the respondent’s motion to dismiss this proceeding that the bank has never paid over or accounted for its indentedness, it is nevertheless true that it has now in its hands no specific moneys whose delivery to the petitioner this court has authority to direct by virtue of section 2712.

The fact that the deposit in question was made, not to the credit of the depositor herself, but in trust for another person, and that person an infant, is a circumstance which does not, in my judgment, affect the matter here presented for determination.

A decision that this inquiry must proceed could only be justified upon the broad ground that the representative of' an estate is accorded, by sections 2706-2714, the right to examine a debtor of his decedent merely for the sake of ascertaining the nature and amount of such debtor’s liabilities to the estate. This ground is untenable.

Proceedings dismissed, without costs to either party.