text:
    Anna Maria Deen, Plff., v. William Milne, as exr. of the last will and testament of William Wilson, deceased, Deft.

      (Supreme Court, Special Term, New York County,

      Filed February, 5, 1887.)
    1. Discontinuance — Stipulation op counsel — When pasties bound by.
    An oral stipulation deliberately made by counsel in open court, and entered in the minutes, though relating to proceedings in another action and in another court, is just as binding as a written one, and can be enforced by motion or action.
    2. Same — Effect of stipulation to discontinue an action.
    A stipulation to discontinue an action in which judgment has been entered, necessarily includes a stipulation that the judgment may be vacated without express words to that effect. And the party who has received such astipulation is entitled to enteran order which shall not only discontinue the action, but direct the clerk of the court to mark the judgment on his docket book as canceled or vacated.
    An action to establish the existence of a lost stipulation alleged to have been made in an action pending in the supreme courtwhich provided for the discontinuance of two actions in the Marine Court,of the city of New York, in one of which a judgment had been entered in favor of Anna Maria Deen as plaintiff against the said Wilson as defendant, from which an appeal had been taken, and the other of which of the same title was pending in that court undetermined.

      Aaron J. Vanderpoel, for plff; John Clinton and Seward Cr. Perkins, for deft.
   Andrews, J.

Upon the first trial of this action the complaint was dismissed, on the ground that the plaintiff’s remedy, if he had any, was to move in the Marine Court for an order discontinuing the two actions, and directing the cancellation of the judgment which was entered in one of them. On appeal it was held by the general term that this decision was erroneous; that it was doubtful whether the Marine Court had power tó give such relief, upon a motion or otherwise, and that, at any rate, if it had, the remedy by an action in equity was concurrent, and a new trial was ordered.

Upon the second trial the complaint was dismissed upon’ the merits, but on appeal this decision and'the judgment.in favor of defendant, entered thereon, were reversed and a new trial. was again ordered. Reported in 4 N. Y. State Rep., p. 129.

• The opinion of Judge Magombeb, which was concurred in by Judges DANIELS and Bkady, is elaborate and exhaustive, and in it the various questions of law and fact involved in the case are fully considered. The conclusion reached was that the judge at special term erred in dismissing the complaint, and that there must be another trial. ' ■

All the witnesses, except two for the defendant, who have been examined on the third -trial of the case before me, were examined on the second trial, and, with the exception of the testimony of those two witnesses, the evidence before me is substantially the same as that which was before the general term on the second appeal; and the general term, upon that evidence, having decided in effect that the plaintiff was entitled to a judgment in her favor, it necessarily follows that she is entitled to such judgment now, unless the situation has been materially changed by the evidence given by. the two new witnesses examined on behalf of the defendant, I have carefully examined this testimony as well as the whole case, and I am not able to see how this new testimony helps the defendant. Great stress is laid by counsel for defendant upon the testimony given by Mr. Justice Van Brunt, one of such new witnesses. I cannot concur in the counsel’s views. On the other hand, it seems to me that Judge Yan Brunt’s evidence materially strengthens the plaintiff’s case.

On his'direct examination the judge testified that his recollection was that' on the trial before him there was no recess before the commencement of the taking of the testimony; that he did not recollect leaving the bench for any purpose, nor that any stipulations in writing were signed or exchanged, at that'time, before the commencement of the taking of testimony.

In the course of his cross-examination he said:

“ There being an. action in the Marine Court in which there had been a judgment in favor of the defendants, upon the identical issue that they had to try» before me, they wanted me to try it over again. That struck me as being very peculiar. ■* * * . My recollection is that I stated that I would not try that cause with that Marine Court judgment in the condition in which it was, because the result would be that if I came to a different conclusion from that which obtained in the.Marine Court, two -courts, so far- as this question was concerned, of coequal jurisdiction, would have decided the same question in a different way, and I did not propose to he put in that position.
Q. Do you .remember what suggestion it was that was made that relieved the difficulty ?
_A. There was some suggestion in' reference to the discontinuance of the Marine Court action.
Q. And was there such an agreement made in court ?
A. My recollection is that there was some oral stipulation of that kind.
Q. Do you remember that there was more than one Marine Court action ?
A. My recollection is that there was one action which had gone to judgment, and there was an action pending which had not gone to judgment. I was not at all interested in the action which had not gone to judgment.
Q. And the one in which the oral consent was given was which one ?
A. I don’t construe in which action the oral consent was given; I merely state the fact.
Q. What was the oral consent ?
A. I can’t give the language of it. The oral consent, as I now recollect it, was that the action in the Marine Court should be discontinued.

There is nothing in this testimony, or any other given by Judge Van Brunt, which tends in the remotest degree to sustain the claim made by defendant’s counsel that the stipulation given Mr. Chetwood was a stipulation to discontinue the appeal theretofore taken from the judgment entered in the Marine Court. On the contrary, Judge Van Brunt’s testimony, by itself, establishes that the oral stipulation made by Mr. Chetwood was to discontinue the Marine Court action in which such judgment had been entered. No other construction of his testimony is possible.

His recollection is that there was no recess, and he does not recollect leaving the bench, or that there was a written stipulation. But as the judge himself says, after so many years he may be mistaken in his recollections. Even if there was no recess, and if the judge didnot leave the bench, it does not follow that the stipulation was not reduced to writing before the trial proceeded, and the fact that the judge does not remember seeing a written stipulation does not prove there was none; nor does the judge’s testimony that he did not see the written stipulation contradict the testimony of plaintiff’s witnesses who swear positively that such written stipulation was drawn and signed before the trial proceeded, nor does it tend in any material degree to disprove such testimony.

The judge testifies to an oral stipulation to discontinue the action in which judgment had been entered, and the entry in the stenographer’s minutes is, that it was consented that the action in which a verdict had been rendered be discontinued, which entry, of course, must refer to the action in which judgment had been entered, as the other action had not been tried. After the the oral stipulation had been made, and the fact noted in the stenographer’s minutes, there was no reason why Judge Van Brunt should concern himself about a written stipulation. It may well be that such stipulation was drawn and signed without his seeing it, and as he had no occasion to see it and it certainly will not be seriously claimed that that the fact that he does not remember, after the lapse of twelve years, that he saw such stipulation, is testimony which should have much weight in determining whether or not there was such a written stipulation.

The other new witness examined on behalf of the defendants was a Mr. Vandemeyde, who testified that, in his opinion, the words “ and that the judgment entered therein be vacated and canceled” which appear in the stipulation produced by defendant on plaintiff’s call, were not written at the same time as the rest of the stipulation nor in the same ink.

I am not able to accord to the testimony of Mr. Vanderweyde the weight which counsel for the defendant thinks it should-have. In the first place, he does not undertake to say how long a period elapsed between the writing of the body of the stipulation and the words above quoted. His testimony on this point may be true, and yet the words in question may have been added to the stipulation within ten minutes after the rest of it was written. In the second place, to my eyes, the blot and the letter referred to by the learned expert, do not present precisely the same appearance that they do to his. And I .am not able to concur in his conclusion, that the difference in the appearance of the letters which ran into the blot shows that the added words were written after the rest of the stipulation. If he his right about the difference in the inks it does not .follow that the words in question were written out of the court room, for inks of different kinds, qualities and thickness may as well have been found in fhe court room as elsewhere ; and I :am strongly inclined to think that if a piece of blotting paper was placed upon the added words, immediately after they were written, that fact goes a long way towards explaining whatever •difference appears between those words and the rest of the stipulation. Mr. Yanderweyde’s testimony, if uncontradicted, •would not prove that the added words were written outside the •court room, and such testimony certainly cannot overcome the positive testimony of several witnesses, who swear positively that they were written there.

My conclusion is that the evidence of the two new witnesses •examined on behalf of defendant should not materially affect .the conclusions to be drawn from the evidence given on behalf ■ of the plaintiff, and upon which the general term has already .decided that the plaintiff was entitled to judgment, I do not ,see, however, how any different result's could ■ be reached, even .if the case were to be decided upon the assumption that the new •.testimony raises a doubt about the signing and delivery of the written stipulation. It is conceded that a stipulation of some •sort was made. The plaintiff claims it was a-stipulation to discontinue the actions in the Marine Court, and that the judgment be vacated. The defendant claims that it was a stipulation to discontinue the appeal taken from that judgment. Upon .the evidence given on the second trial the general term found that such claim of the plaintiff was sustained. Now Judge Van Brunt has been examined," and he testifies positively that there was an oral stipulation to discontinue the action in which judgment had' been entered. It is useless, therefore, for tlie defendant to claim that the stipulation made was to discontinue tbe appeal. The general term said that the evidence given on the former trial proved that such was not the case ; and now the defendant has proved by his own witness that there was an oral stipulation, and that it was not to discontinue the appeal, but to discontinue the action. It seems to me that the defendant has proved all that is necessary to entitle the plaintiff to judgment in her favor, to say nothing of all the other testimony which, in the opinion of the general term and in my opinion, established beyond question the making of an oral stipulation to discontinue the action in which judgment was entered.

The general term expressly decides that the authority of Mr. Chetwoodto'make the stipulation cannot now be questioned; and an oral stipulation, deliberately made by counsel in open court and entered in the minutes, though relating to proceedings in another action and in another court, is just as binding as a written one and can be enforced by motion or action (Philips v. Wicks, 38 Superior Court Rep., 74). Moreover, a stipulation to discontinue an action in which judgment has been entered necessarily includes or involves a stipulation that the judgment may be vacated, without express words to that effect. “ By the discontinuance of an action the further proceeding in the action are arrested not only, but what has been done therein is also annulled so that the action is as if it never had been. ” (Loeb v. Willis, 100 N. Y., 235.)

Where an action has gone to judgment it is usual and proper, in stipulating for its discontinuance, to provide that the judgment shall be vacated, but it seems to me that such provision is unnecessary, and that a party who has received a stipulation for discontinuance only is entitled to enter an order, which shall not only discontinue the action but direct the clerk of the court to mark the judgment on the docket book as cancelled cr vacated. This must be the law, for after the action is discontinued, a judgment previously entered therein no longer exists as a judgment. The discontinuance wipes the judgment out of existence as effectually as though the action had never been commenced, and the judgment is no longer a lien or an estoppel (Loeb v. Willis, supra). And the discontinuance of the action must have this effect, even though the judgment has not been marked as canceled or vacated upon the docket book.

I am of the opinion that the new testimony introduced on behalf of the defendant has not changed the case which was passed upon by the general term ; and also that, in any view which can be taken of the testimony as it now stands, the plaintiff is entitled to judgment as prayed for in the complaint,.with costs


source: Caselaw Access Project

author: Potter, J.

license: Public Domain

text:
    Isabel Wright, Plff., v. John C. Grant, Deft.

      (Supreme Court, Special Term, Clinton County,

      Filed February 10, 1887.)
    1. ARREST IN CIVIL ACTION — WHEN NOT ENTITLED TO DISCHARGE UNDER Laws 1886, chap 672 and 648 — Code- Oiv. Pro., §§ 111, 575 — Subdivision 3rd.
    Where the defendant was .arrested in a civil action, and upon-such arrest gave the sheriff an undertaking pursuant to Code Civ. Pro., §§ 573, 574 and 675, and was thereby discharged from such arrest, and the undertaking was under the 3rd subdivision of § 575, and to the effect that the defendant would at all times render himself amenable to any mandate which may be issued to enforce final judgmerit in the action, Held, that as he is not imprisoned within the prison walls of a jail nor within jail liberties of any jail, he is not in fact nor in contemplation of law, a prisoner, and the provisions of chapter 672 and 648, Laws 1886, in relation to imprisonment of persons in civil actions, and tlieir discharge therefrom, have no application to his case.
    2. Same — Person who is under bonds to appear can become prisoner CONFINED WITHIN JAIL LIBERTIES.
    That if defendant is dissatisfied with the kind of liberty he has under this undertaking, he can at any time be imprisoned within the jail liberties by a surrender to the sheriff, and then giving the undertaking for ' the jail liberties ; and after submitting to such restrictions for six months will be entitled to be discharged under Code Civ. Pro., § 111.
    3. Same — When not entitled to discharge under Code Civ. Pro., § 572.
    Where the defendant has not been and is not imprisoned in the action though a judgment was rendered against him (under which he could be imprisoned) and from which he has appealed, Held, that defendant is not entitled to be discharged under Code Civ. Pro., § 572. because the plaintiff has forborne to imprison him, awaiting the decision of the appeal.

      Gilbert Sf Kellogg, for tbe motion ; Cantwell Badger Cant-well, opposed.
   Potter, J.

This is a motion made at the Clinton county special term in January, 1887, for the discharge of the defendant from arrest under an order of arrest heretofore issued in this action and from any liability to be arrested upon any execution that may be issued upon the judgment in this action, etc.

The order under which the defendant was arrested was granted by a judge and the defendant was arrested thereunder by the sheriff of the County of Franklin on the 13th day of February 1885, and upon such arrest the defendant on the day following gave the sheriff an undertaking pursuant to sections 573-574 and 575 of the Code of Civil Procedure and was thereby discharged from such arrest.

The undertaking was under the 3rd subdivison of section 575, to the effect that the defendant would at all times render himself amenable to any mandate which may be issued to enforce final judgment in the action.

The affidavits upon the motion also show that the action has been tried and a judgment recovered therein upon the 17th of March, 1886, for $660,22, damages and costs, and that in due time the defendant brought an appeal from said judgment which is still pending but gave no undertaking upon such appeal, and that the plaintiff has neglected to issue execution for more than three months after the entry of judgment. The motion is based upon two grounds, one that more than six months have elapsed since the arrest of defendant under said order and the defendants entitled to be discharged under section 111 of the Code as amended; the other that the plaintiff having neglected to issue execution against the body of defendant within three months after the entry of judgment, the defendant is entitled to be relieved from liability to arrest under any execution that may be issued in said actionpursuant to section 573, of the Code of Civil Procedure as amended in 1886.

My impression upon the argument was that the defendant was not entitled to be discharged under the decisions made by me in Lust v. Grant and Salomon v. Same, and reported in 1 New York State R. 587 and cited upon the argument in support of the motion even if that decision should in all respects be affirmed, but as that decision was undergoing review by the general term in the first department and might be reversed as to the principle which the defendant’s counsel contended was applicable to this case, I thought it best to withhold any decision upon this motion until the decision of the general term in the above mentioned cases.

Recently I have seen that the decision in those cases was affirmed and the question now presented is whether the motion should be granted, upon either of the grounds of defendant’s contention.

The first grounds arises upon the amendment of the several sections of the Code made by chap. 672 and 648, Laws of 1886.

It will be observed upon reference to those amendments that they all relate to the duties of officers and in relation to imprisonment of persons confined in the jail or within the jail liberties by virtue of an undertaking pursuant to section 150, conditioned that the persons so in custody, that is, under an order of arrest, surrender by bail or execution against the person, shall remain a 'prisoner and shall not at any time or in any manner, escape or go without the liberties of the jail until discharged by due course of law.

Section 111, has only reference to that class of defendants and makes provision for their discharge under certain circumstances, viz.: those “ imprisoned within the prison walls of a jail ” and those “ imprisoned within jail liberties of any jail.”

Prisoners of the first class may become prisoners of the second class by giving the undertaking specified in section 150 above referred to, and in no other way.

Prisoners of the second class may again become prisoners of tbe first by their surrender to the sheriff through their bail or sureties.

These two classes only are -mentioned in the various sections of the Code, notably in sections 111, 149,150,152, 153,154,155, 158, 160, 162, 572, as prisoners.

Each of these classes is mentioned as prisoners, whether confined within the walls of the jail or within the jail liberties and in custody of the officers, in these sections of the Code and were regarded as in the custody of the law, before these provisions of the Code were enacted. Peters v. Henly, 6. J. R. 121; Brown v. The People, 75 N. Y., 439, 440; the defendant does not fall within either of these classes. He is neither a prisoner within the walls, nor within the liberties, of the jail. The' undertaking he has given to the sheriff does not obligate him “ not to escape in any manner or at any time, or go without the liberties of the jail.”

He may go when or where he pleases without or within the county with this one limitation, that he will, when required, be somewhere in the county, amenable to a mandate issued upon final judgment in this action.

He is not in fact nor in contemplation of law a prisoner, and these provisions of the law in relation to imprisonment of persons in civil actions, and their discharge therefrom, have no application to his case.

There is no hardship in this case of which the defendant can justly complain. He had his choice of what condition he should be in wheñ arrested under the judge’s order in this action. He could have given an undertaking for the liberties of the jail and suffered in those restricted liberties for six months and then had unrestrained liberty to go where he pleased for all time or give the undertaking, — which he gave, — for the other kind of liberty which is only restricted by his agreement to be in the county in case he shall be required upon final judgment against him in the action.

As a further illustration of the humane character of this law, I see no reason why, if-the defendant made a bad choice when he decided which kind of liberty he would have and is dissatisfied with it, he cannot now obtain the other kind by a surrender to the sheriff and then giving the undertaking for the jail liberties, and after submitting to such restriction for six months, in dull times or unpleasant weather perhaps, obtain that larger liberty more desirable with a larger business and wider range of travel with the change of time and the seasons.

My conclusion is that the first ground on which the motion rests is untenable.

The defendant invokes section 572, as amended by the same chapter 672, above referred to, as entitling him to an order releasing him from liability to arrest upon the final judgment in this action; that section as amended, is rendered somewhat obscure no doubt in the effort to adapt it to the amendments of the other sections and to avoid dividing its substance into' additional sections.

Assuming that the legislature intended to change the law upon this subject as it existed in the Revised‘Statutes and the provisions of the Code and their amendments from time to time, and the decisions of the courts requiring that the defendant when making this motion should be. in custody, see 3. R. S. (5th Ed.) 870; Code Procedure, sec. 288; Bostwick v. Goetzel 57 N. Y. 582. and cases there referred to. And permitting a defendant not in custody to make the motion, it results, that the granting of the motion in this case, is a matter resting in the discretion of the court.

I will not here- undertake to decide that question. If it were necessary I should be inclined to the opinion that the law was changed by the amendment, but as a matter of discretion I am not inclined to grant that part of the motion.

As we have seen, the defendant has not been and is not imprisoned in this action, though a judgment was rendered against him and from which he has appealed. The defendant is not now imprisoned in any other action, nor liable to be, so far as shown by the papers upon this motion.

It is to be presumed that the defendant expects to reverse the judgment against him in this action as illegal or unjust.

If he is not disappointed in his expectations the judgment will be reversed and he will never be imprisoned or arrested upon its mandate.

Should the defendant be heard to complain that the plaintiff has forborne to imprison him upon an unjust and erroneous judgment and if the judgment is reversed finally, will never have the right to imprison him ? That would be a novel and extraordinary use to apply the provisions of that humane legislation to.

A defendant complaining that the plaintiff had been so considerate and humane as not to imprison him on an unjust judgment and because he- had not imprisoned defendant when the defendant claims that plaintiff ought not to, that the plaintiff should not imprison him when the court holds he ought to, if the judgment should be affirmed. Motion denied with ten dollars costs.


author: Andrews, J.

text:
    Mary M. Watson, Plff. v. John D. Phyfe et al., Defts.

      (Supreme Court, New York Chambers,

      Filed March 5, 1887.)
    1. Pp.actxce — New trial — Calendar practice — Code Civ. Pro., § 997.
    Where a judgment has been reversed on appeal, and a new trial granted, either party has the right to have the case advanced and placed on the day calendar for trial.
   Andrews, J.

Plaintiff’s counsel is mistaken in supposing that the court has any discretion in regard to granting or denying this motion. The action has been once tried, and upon such trial the complaint was dismissed. On appeal, the decision of the court below was reversed and a new trial ordered. The defendant desires that a new trial should be speedily had, but the plaintiff wishes the new trial postponed.

It is perfectly well settled that in a case like this either party has a right to have the case placed on the day calendar for trial. It is not a question ofwhether the action shall have a preference which is addressed to the discretion of the court,'but a matter of absolute right.

There lias been some difference of opinion- in regard to the status of an action which has been once tried and where on appeal a new trial has been ordered. Section 977 of the Code provides that in this district an action once noticed for trial shall remain on the calendar until it has been disposed of. Whether an action which has been tried has been disposed of depends upon whether an appeal is taken, and upon the disposition of such appeal which is made by the general term. If a new trial is ordered the case cannot be said to have been disposed of.

In cases of this character it is considered by some of the judges that the action is to be regarded as holding the same position as though it had been marked “ generally reserved,” and that either party has a right to have it put on the day calendar on two days-’ notice. It is thought by others that in cases of this character the action must, in this district as well as in others, be renoticed for trial and a new note of issue filed with the clerk.

. So far as I am aware, however, it has always been held that in eases of this description either party has a right to have the case placed on the day calendar. An order must therefore be entered directing the elerk to place this action on the day calendar. The order will be settled on notice.


author: Rollins, S.

text:
    Matter of the application for revocation of probate of the will of Anna Clausmann, deceased.

      (Surrogate’s Court, New York County,

      Filed August 10, 1886.)
    Will — Testamentaby capacity — Undbb influence — When the pboBATE OF A will WILL BE BEVOKED — CODE ClV. PBO., § 2622 AND 2652.
    Where the decedent at the time she executed her alleged will was more than eighty years old, and lived in a tenement consisting of two rooms, which she rented of one S. Her only household associate was one McC., a woman but ten years younger than herself, who assisted in domestic affairs, and after decedent fell ill acted as her nurse and attendant. The day the alleged will was executed decedent was very ill and weak, and the physician who attended her, just before the instructions for the making of her will are alleged to have been given by her, told S. and his wife that there was no hope of her recovery. While she was in this moribund condition she is alleged by the wife of S. to have asked S. to bring to her sick room a notary who could make a will, and to have said to S. “ I am going to make a will now to you.” Thereupon S. found a notary who returned with him, and the will was then and there drawn and executed, giving all her property, amounting to over $3,500 except $200, to S. who proposed the will for probate, decedent dying within ten hours thereafter. Held, that there was such serious doubt both as regards the testamentary capacity of decedent, and as regards her freedom from undue influence, that the probate of the paper alleged to have been a will must be revoked under Code Civ. Pro., §§ 2622 and 2652.

      Sylvester H. Kneeland and • Bernard Metzzar, for proponent; Henry B. B. Stapler for contestants.
   Rollins, S.

The instrument that has given rise to the controversy now to. be determined was executed by Anna Clausmann, the decedent, on March 28, 1885, eight or ten hours before she died. Two days later it was propounded for probate by John Severs, whom it names as its executor, and to whom it undertakes to bequeath nearly all the property left by its maker at her decease.

In his petition for probate Severs alleged, upon information and belief, that Mrs. Clausmann had left her surviving no child or children, no issue of any deceased child or children, no father, mother, brother or sister, and no issue of any deceased brother or sister. He further alleged that he had no knowledge or information as to the existence of any person or persons who sustained to Mrs. Clausmann the relation of next of kin. For reasons that will hereafter be disclosed, I am compelled to believe that, in making these allegations, the proponent was' disingenuous, if, indeed, he is not fairly open to a graver imputation.

The citation issued pursuant to his petition was personally served upon the Public Administrator and upon him alone. On May 21, 1885, no one opposing, the paper propounded was admitted to probate. In October of that year there was filed with the Surrogate, a petition praying that such probate be re-voted. This proceeding for revocation was instituted by certain of decedent’s next of kin — to wit, two nephews living in the State of Michigan, and two nieces, one living in that State, and the other in the State of New York. All four of these petitioners are children of Mrs. Effie Cox, a deceased sister of Mrs. Clausmann, who died at Lummisville, in Wayne County of this State, in June, 1884.

The decedent, at the time she executed the will which is now sought to be disestablished, was more than eighty years old. She lived in a tenement consisting of two rooms on the street floor of a building in West Thirty-sixth street, in this city. These premises she had occupied for several years, hiring them from the proponent Severs, and paying him rent therefore at the rate of $6 per month. Her only hoxisehold associate was one Ellen McCale, a woman but ten years younger than herself, who seems to have assisted . in domestic affairs, and after the decedent fell ill to have acted as her nurse and attendant. The building which was in part tenanted by Mrs. Clausmann stood upon the rear of a lot of land occupied in front by the residence of John Severs.

On March 28, 1885, the day the alleged will was executed, the decedent was very ill and weak. Dr. Adolph Rupp, the physician who attended her, says that when he saw her in the afternoon of that day, not far from the time when she is claimed to have given instructions for the making of her will, he knew that her death was close at hand, and announced to the proponent and his wife that there was no hope of her recovery.

It was while she was in this moribund condition that, according to the testimony of Mrs. Severs; she asked the proponent to bring to her sick room a notary who could make a will, and said, addressing Severs, “ I am going to make a will now to you.” To this Severs replied: “ I guess you will be all right again.” “ Oh, no,” repeated the decedent. “ I will make my will and I will be sure you must bury me; you must do it; you must promise me.”

Thereupon Severs went in search of a notary public, and at some hour between three and five in the afternoon returned to the decedent’s apartment with Adam Henz, whom he had found at his place of business somewhere in the neighborhood. The story of what then ensued is told by Mrs. Severs as follows: “ He ” (the notary) “ asked if she (the decedent) had a husband and she told him she had had two husbands but both were dead. He asked her if she had any children and she said no; then he asked her what she will do, she said she will leave it to Mr. Severs — $200 for Mrs. McCale, and what was left for him ” (Severs).

Q. “Then the will was drawn out?” A. “Yes, he” (the notary) “ sat down and drew it.” •

The testimony of Henz does not conflict with that of Mrs. Severs, but contains this additional statement, that in response to a question as to the nature of her property, the decedent said that “ all she had was money in bank and a little furniture.” * * ’ .

These accounts of what took place just before the will was written are of grave importance, not simply as showing what was said, but as showing also what was not said between the notary and the decedent at the only time when the latter is claimed to have given instructions for the preparation of her will. She seems to have been asked whether she had a husband, and whether she had children. She was not questioned as to the existence of any other relatives, and for aught that she said or that was known to the notary and the proponent she might have had a dozen brothers and sisters, with nephews, nieces and cousins by the score. She was asked, if Mrs. Severs is to be credited, respecting the nature of her property, but no inquiry or disclosure was made in regard to its value.

These omissions were serious. The proponent should not, in view of the circumstances disclosed by the evidence, have allowed the decedent to make a will under which he would be substantially the sole beneficiary until her attention had been expressly called to the nature, extent and value of her property, and to the question whether or not any persons existed who would naturally be the objects of her bounty. In addition to the “ money in bank ” and the “ little furniture ” which, according to the testimony of Henz, was declared by Mrs. Clausmann to constitute her whole estate, there was found upon her person after her death $55 in money. And hidden in the clothing of her bed, not only the bank books of which she had spoken, showing deposits to her credit of over $3,000, but the sum of $875 in cash.

The only persons who were about her when she is claimed to have made testamentary disposition of this property were the subscribing witnesses, the legatee Ellen McCale and Mr. and Mrs. Severs. One of those subscribing witnesses was the notary Henz, the other was John Schneir, a brother-in-law of Severs. Severs and Mrs. McCale are the only persons named as beneficiaries in the will. Mrs. McCale is given $200, and Severs the entire residue.

As to the relations that existed between the decedent and her kindred, the evidence is meagre and somewhat conflicting.

There are witnesses who tell of sweeping declarations made by Mrs. Clausmann on divers occasions against her relatives generally, and other witnesses who testify as to other occasions when the old lady spoke of her nephews and nieces, and of one nephew in particular in terms of approval and affection, and expressed her intention of giving to them or him a share of her estate.

It appears by tlie testimony of Mrs. Nancy Ciarte that about seven or eight years before the decedent’s death her sister, Mrs. Cox, the mother of these contestants, who was then a widow, visited the decedént and remained with her for about six months ; this sister then returned to her home at Lummisville, N. Y., and died there at the residence of her daughter, Mrs. Townsend, about ten months prior to the date of this will. Mrs. Clark further testifies that she was informed of the death of Mrs. Cox by a letter from Mrs. Townsend, and that she read that letter to Mrs. Clausmann. This testimony is very important when considered in connection with that of Mrs. Harriet Ground. Mrs. Ground took charge of Mrs. Clausmann’s body after her death, and discovered most of the property which is the subject of this controversy. She states that in the course of the search, which resulted in finding .the money and bank books to which I have referred, she saw several letters of which Severs afterwards took possession. She describes these letters as having been “ written to be sent away,” and says that they had decedent’s name at the bottom — “Anna Clausmann.” Severs was notified by the contestant’s counsel to produce the letters about which Mrs. Ground had thus testified. He subsequently did produce one letter, and only one, saying: “There is one letter left; there were a good many of them destroyed ; I kept them for six or seven months ; I thought it was all over.” He was then asked by his counsel: “ Who was that letter from ? ” And his reply was : “ From a sister in the West; she died a jmar before Mrs. Clausmann died.” The letter produced was subsequently proved to be in the handwriting of the decedent, and was put in evidence. It does not answer at all to Severs’ description. It is addressed to her “ dear niece,” meaning, as is revealed at its close, Mrs. Townsend, one of these petitioners ; and if it was written when it bears date (August 21, 1884), it tends to show that at that time, only seven months before her death, Mrs. Clausmann entertained kindly feelings towards her relatives.

In this review of the evidence I have purposely refrained from discussing any portion of it which proponent’s counsel criticises as unworthy of credence.

As I view this case, it is quite unnecessary for me to make up my mind whether Mrs. Ground’s report of the decedent’s mental and physical prostration on the day the alleged will was executed should be believed or disbelieved; or whether her statement that Severs sought to purchase her testimony, or his, that she tried to sell it to him, is the more consonant with truth.

On the undisputed facts the case of the proponents is very suspicious. It does not appear that during the decedent’s residence as a tenant in the house of the proponent, he or his family had conspicuously merited her gratitude or that they expected or bad the slightest reason for expecting that she would or could reward, with such profuse liberality, the slight courtesies and kindnesses she had received at their hands. That Severs was greatly astonished when he learned how considerable a sum had been bequeathed to him by his tenant is shown by the testimony of Mrs. Ground and has not been disputed. There certainly was abundant cause for his astonishmént.

I am greatly inclined to think that when the decedent announced her purpose of leaving him all her property except $200, and subsequently gave directions for the preparation of a will which should effectuate that purpose, she did so chiefly, if not altogether, for the sake of securing for her dead body a decent burial. She seems to have been under a morbid apprehension that her remains might be deposited in Potter’s Field. This appears in what she said on three several occasions to Henry Sehneir and Mrs. Severs, two of the proponent’s witnesses, and to Henry Woodgate, who was called by the petitioners.

Says Sehneir: “ She said, ‘ My landlord is the nearest friend I have got, and he is the man who will bury me,’ otherwise she would be buried in Potter’s Field, and she felt bad about being buried in the Potter’s Field.”

Woodgate testified that not long before her death the decedent intimated a'wish that he (Woodgate) should bury her, and proposed to give him her money.

The contribution which Mrs. Severs makes to this theory has been stated already. She reports the decedent as saying to Severs: “I am going to make a will now to you; I will make my will, and I will be sure you must bury me; you must do it; you must promise me.-”

In this situation I am clear that Severs was called upon to make inquiry into the value of the dying woman’s estate, and to ascertain her relations with her kinsfolk before he busied himself in finding a notary, or consented to the execution of a will in his interest. In view of the facts and circumstances upon which I have commented, I have serious doubts both as regards the testable capacity of this decedent, and as regards her freedom from such influence as the law pronounces undue.

The words of Surrogate Bradford, in Mowry v. Silber (2 Brad., 133), seem to me as applicable to the present case as to the case in which they were uttered: “Nothing but the most clear and satisfactory proof of freedom from control, and self volition, could sustain such a will of such a testator. * * Under the circumstances here disclosed the ordinary presumptions flowing from the act of formal execution do not obtain, but the burden is thrown upon the party seeking to establish the testamentary act to show that all those precautions were taken and those explanations were had that were necessary to secure to the party the full, free and unbiased action of his impaired faculties.”

See also Lee v. Dill (11 Abb. Pr., 214), which holds that in such a situation as the present, the proponent of a will is required' to remove all ground for suspecting that it was procured by improper means and unfair practices, and must make it clear to the court that the testator fully understood the nature and consequences of his testamentary act. And to similar effect see Baker v. Batt (2 Moore P. C., 317); Van Pelt v. Van Pelt (30 Barf., 134).

Sec. 2622 of the Code of Civil Procedure declares that “ before admitting a will to probate the surrogate must be satisfied of its genuineness and of the validity of its execution.”

Sec. 2652 provides that if in a proceeding for revocation of probate the surrogate decides that the will is “ not srtffieiently proved ” he must make a decree accordingly.

As it has not been established to my satisfaction that the paper here in controversy was executed by a free and capable testator, I must direct that the probate thereof be revoked.


text:
    Estate of David M. Peyster, deceased.

      (Surrogate’s Court, New York County,

      Filed August 17, 1886.)
    1. Executors and admt stratoes’ accounts — Objection to — When SHOULD BE MADE.
    Objection to the form of an executor’s account should he made before the submission of the account to a referee in order to charge the executor personally with the expense of reformation subsequently found necessary.
    2. Same — Form op account.
    The account should be explicit and in it the corpus of the estate should be separated from the income.
    3. Same — Commission of executor — Interest.
    An executor is entitled to a single commission only upon the corpus of the estate, and is not entitled to retain such commissions before their allowance by the surrogate, and he is chargeable with interest upon commissions improperly retained.
    4. Same — United States income tax.
    An income tax due the United States Government at the time of testator’s death is properly chargeable to the principal of the estate.
    5. Same — Executor chargeable with tax improperly paid — (u. S. laws, June 30th, 1864.)
    Where an executor in good faith paid the legacy tax to the United States provided for by Laws U. S. (§§ 124 and 125, Act of June 30th, 1864, and the amendments thereto), when the law had been repealed he will be personally charged with the amount so paid.
    6. Same — Counsel fees, when allowed.
    An executor who has employed and paid counsel for legal services in the course of his administration should not be reimbursed for such payment out of the funds of his testator’s estate, unless a proper regard for the interest of the estate seemed to make such services necessary at the time they were invoked.

      Charles Wehle, for executor; Solomon Dulon, for Caroline Brandis ; Townsend, Dyett Brnstein and George A. Black, for others.
   Rollins, S.

I shall pass upon the several exceptions to tbe findings of the referee herein in the order in which the referee discusses in his report the matters to which such exceptions relate.

First. The finding in respect to the form of the executor’s account as it was originally presented is important only as it affects the question of costs and counsel fees to be awarded him in the decree to be entered in this proceeding. The per diem allowance, which under section 2562 of the Code of Civil Procedure the surrogate may in his discretion award an executor or administrator for counsel fees in preparing his account, is not intended, it seems to me, to compensate the accounting party for his personal services in such preparation. For such services he is supposed to be rewarded by his statutory commissions. It is the purpose of section 2562 to enable, him without personal expense or loss to secure legal advice and assistance whenever such advice and assistance is needed for putting his account into proper form.

The referee has found that this executor was justified in presenting his aecount as it was originally filed. If by this finding he means that the executor did not, by pursuing that course, subject himself to a penalty, I agree with him. No one of the contesting parties is now in a position to claim that costs should be charged against the executor because of the incomplete fashion in which he disclosed at the outset his dealings with this estate. It was hi the power of any person, who was dissatisfied with that showing, to apply to the surrogate for relief before the submission of the account to- a referee. No such application was made, and no objector therefore can be sustained in contending that the expense attendant upon the reformation which was subsequently found to be necessary should be borne by the executor personally. It does not follow, however, that the accounting party should now be treated, as regards his claim for costs and counsel fees, as he would have been entitled to be treated if his account as first presented had been sufficiently explicit. He might well, it seems- to me, havfe separated in the beginning the corpus of the estate from the income. It would very likely have happened that the referee or the Surrogate might have directed a transfer of items of the account from one schedule to another, or the striking out of other items altogether, but the executor should in the first instance have rendered, according to his best judgment, some portion at least of the services which have here been practically performed by the referee. The question raised by this exception will be further and more particularly considered upon the settlement of the decree.

Second. I think that the referee has erred in finding that the executor was authorized by the will to manage the entire estate of the testator during the life of his widow. The power of sale which, according to the determination of the supreme court, the executor was authorized to exercise at the widow’s death* extended to the portion of the estate given to her absolutely as well as to the portion given her for life, but prior to her death the executor was not, it seems to me, charged with any duty connected with the real property. It is true that he did in faGt manage such real property while the widow lived, and that he did so by her authority, but in this he acted as her agent, and he is not as executor entitled to be compensated for those services upon this accounting; nor was he called upon in this proceeding to render any account of such management.

Third. I sustain the referee in his findings that the executor is entitled to a single commission only upon the corpus of the estate, and that he was not entitled to retain such commissions before their allowance by the. surrogate. But I - hold in opposition to the referee that 'he must be charged with interest upon commissions improperly retained.

Fourth. I sustain the finding of the referee, which is the subject of the executor’s third exception.

Fifth. No exception has been taken to the referee’s decision, that “ all rents which accrued during the widow’s life belonged to the life estate, and that rents which accrued after her death, for periods partly before her death, should be apportioned.” The apportionment statute (chap. 542, L. 1875) was passed on June 7th, 1875, and took effect twenty days later. The testator’s widow died on October 8th of that year. It is claimed on behalf of her representative that there should be an apportionment of certain taxes which tlr -‘hree has charged against the life estate. One of these tax as paid on November 29th, 1870, before the statute of 1875 s enacted. As to this the referee must be sustained. The other tax was paid on November 29th, 1875. Chapter 542 provides that in making the apportionments which it directs, “ all just allowances and. deductions on account of charges on such rents shall be considered.” I hold that as regards this tax the claim of the widow’s administrator must be upheld.

Sixth. The reference finds that at the time of the testator’s death there was due and owing by him to the United States Government an income tax upon his income for the year 1869 ; that that tax was a personal debt of the testator and is chargeable to the principal estate. The executor paid on account of this tax, out of the moneys of the life estate, the sum of $505.62. It is not claimed by any of the parties hereto that the payment of this tax should be disallowed, but it is contended by the counsel for some of the remainder men that the referee has erred in charging it to principal. *

This exception must be overruled.

Seventh. Certain objections to the probate of this testator’s will were filled upon its presentation for probate, but those objections were subsequently withdrawn and the will was established without controversy. In anticipation of a contest the executor had employed counsel and made preparation for trial. The attendant expense is found by the referee to be a charge upon the principal estate alone. When the executor’s account was first submitted objection was interposed to his claim to be credited with this disbursement upon the ground that it was excessive in amount. That objection was afterwards withdrawn, but the objectors now insist that the life estate should bear a part of this burden.

The evidence discloses that when the sum in question was paid by the executor to his counsel the latter agreed to render legal service in all matters relating to the estate that might subsequently present themselves in the course of its administration, and to claim no compensation therefor except as regarded proceedings in the courts. It also appears that from time to . time thereafter the executor frequently sought and obtained the advice of his counsel in unlitigated matters. No charge seems to have been made for these consultations during the continuance of the life estate. It is not to be presumed that the services of counsel were rendered gratuitously, and as one of the considerable items of his first bill was his charge for a retainer, I cannot avoid the conclusion that some portion of the amounts received by him should be charged against the life estate. I do not find in the testimony the requisite data for making a proper apportionment, and unless some basis for such apportionment can be agreed on, there must be a further investigation of this matter before the referee.

Eighth. At the time of the testator’s death there was in force a law of the United States, (sections 124 and 125, act of June 30, 1864, as amended by act of July 13, 1866, 14 U. S. Stat. at Large, 140,) under which legacies of personal property passing by will to a person who was a stranger to the blood of a testator, were subject to a tax of six per cent, to be paid by his executor. This tax was declared by the statute to be “ due and payable whenever the party interested in such legacy should become entitled to the possession or enjoyment thereof,” and the statute further provided that such tax should be “ deducted from the particular legacy,” on account of which the same should be charged. By the act of July 14, 1870, the tax referred to was repealed from and after the 1st day of October of that year. In September 1870, the Commissioner of Internal Revenue issued instructions to his subordinates to the effect that a legacy passing from a person dying before October 1st, 1870, became or would become subject to tax whenever the legatee had or should become entitled to possession thereof. This interpretation of the statute Avas afterwards sustained by the district and circuit courts of tbe United States for this district, but was subsequently overruled by tbe supreme court of tbe United States. Mason v. Sargent (104 U. S., 689).

Tbe law was thus settled, that where a legatee under a will bad not become entitled in possession before the 1st day of October, 1870, no tax could be collected on account of his legacy. On tbe 8th day of October, 1875, tbe day of tbe death of the testator’s widow, Mrs. Brandis, an adopted daughter of tbe testator, but a stranger in blood, became under bis will entitled in possession to a legacy of $15,000. A collector of internal revenue demanded from tbe executor as a tax upon this legacy tbe sum of $900. After some objection and delay the executor paid it. Tbe referee has found that be is entitled to credit for such payment out of the testator’s principal estate, notwithstanding the positive provision of tbe United States statute that tbe .tax upon a legacy should be deducted from tbe legacy itself. It is urged by tbe executor’s counsel that this charge against tbe principal estate should be sustained because the amount in ■question was paid to prevent, proceedings which the internal revenue officers threatened to take against the executor, the prosecution of which proceedings would, it is claimed, have been ■.seriously detrimental to the estate. The only penalty that the the executor .would have incurred by lawful resistance to the ■claim of the Government was a penalty not exceeding $1,000, which anight have been imposed on him personally. If he had taken the precaution to pay the alleged tax- under protest, and had reasonably presented a claim to the Commissioner of Internal Revenue for its refunding, the United States would, of course, have returned the amount paid after the decision of the supreme •court that its payment had not been lawfully exacted. It is perhaps not too late even now for the executor to take steps which will enable him to recover this $900.

After much hesitation I feel compelled to find that under all the circumstances he was not warranted in making the payment ■without protest, and that having made no proper effort to re- . cover the amount paid, he cannot be allowed credit therefor in .his accounts. It is clear that to take this $900 from the legatee would be unjust. She was not consulted in the premises and gave the executor no instructions; he cannot be treated as her agent, .in making the payment. She was entitled to the entire legacy of $15,000 given her by the testator. That legacy was never subject to a tax, and she should receive it without abatement.

The referee does not state the reasons for his conclusion that -the $900 should be charged to the principal estate.

Counsel for Mr. Brandis suggests- some considerations why that ¡.course should be pursued.' But while I have no reason to ,doubt\that the executor acted in good faith, it would, I think, be more just and equitable to refuse to credit him with this disbursement than to charge it to any of the beneficiaries under the will.

Ninth. It follows from the foregoing that the referee must be sustained in his finding that Mrs. Brandis is entitled to interest upon the full amount of her legacy, and I agree with him as to the rate at which such interest should be computed and as to the time when it began to run.

Tenth. The interests of the estate did not require the accounting party to appeal from the order whereby he was directed to pay John F. Peyser the- sum of $5,000 on account of lfis legacy. An executor who has employed and paid counsel for legal services in the course of his administration should not be reimbursed for such payment out of the funds of Ms testator’s estate unless a proper regard for the interests of the estate seemed to make such services necessary at the time they were invoked. The order in question would have been refused if the surrogate had been in doubt whether its enforcement would jeopard the rights of any person interested in this estate. The executor would have been protected in obeying it, and should not now be allowed credit for his counsel fees on appeal.

Eleventh. With the foregomg modifications the referee’s report is confirmed.


text:
    Estate of Caroline Rosenfield, deceased.

      (Surrogate Court of New York County,

      Filed August 19, 1886.)
    1. Beal property oe a decedent — Sale of — When ordered — Code Civ. Peo., chapter xviii, title 5 and § 2759.
    Where by the terms of the testator’s will, property was expressly charged with the payment of debts and subject to a valid power of sale for that purpose. Held, that proceedings commenced for the disposition of testator’s real property under Code Civ. Pro., chapter XVIII, Title 5, must be dismissed under Code Civ. Pro., § 2759.
    2. Same — Executors — Residuary estate — Judgment against executors — When not a lien — Code Civ. Pro., § 2750.
    Where half of the residuary estate was given by the will to the executors, a judgment obtained against them as executors is not a lien against the decedent’s real estate within Code Civ. Pro., § 2750.
    3. Same — Inquest isa trial upon the merits within Code Civ. Pro., § 2756.
    Where an inquest is taken in a case before judgment is rendered, said judgment is rendered after a trial upon the merits within the meaning of Code Civ. Pro., § 2756.

      H. F. Farnsworth, for petitioner; Femara Metzzar, for respondent.
   Rollins, S.

-The will of Caroline Rosenfield was admitted to probate in August, 1884. On April 2d, 1886, Jacob Wallack, claiming to be a creditor of her estate, commenced proceedings under title 5, of chapter XVIII. of the Code of Civil Procedure for the disposition of her real property.

He alleged in his petition the death of the testatrix, her indebtedness, bis commencement of an action against ber in lifetime on account of that indebtedness, tbe pendency of sucb action at ber decease, its subsequent revival against ber legal representatives, and tbe recovery of a judgment against tbem for about $2,500. He further alleged that tbe amount of personal property of tbe decedent in tbe bands of ber executors was insufficient to satisfy sucb judgment, and prayed for a decree directing tbe disposition of so much of tbe real property of which tbe testatrix died seized as would be-sufficient for tbe payment of ber debts. To this petition answers have been interposed by the executors and by one of the legatees. It is alleged by sucb answers that the petitioner’s judgment against tbe executors was not obtained after a trial upon tbe merits, and it is denied that the personal estate is inadequate to satisfy the just and legal claims of creditors. It is also alleged that there is now pending before a referee an accounting proceeding, in tbe course of which it is expected that tbe last named allegation will be fully demonstrated.

Among the provisions of decedent’s will are the following : “ After all my just debts and funeral expenses are paid out of my estate by my executors hereinafter named, I give and bequeath,” etc. Thén follows a list of certain pecuniary legacies amounting in all to $8,500. Then, “ I give, devise and bequeath unto my daughter, Dora, one-half part of all tbe rest, residue and remainder of'my estate, both real and personal, to have and to bold the same to her own proper use and as her own separate estate and to ber heirs and assigns forever. I give, devise and bequeath unto my said daughter Dora and to ber husband, Simon Moses, the remaining one-half part of my estate, both real and personal, after'the payment, division and bequests as aforesaid, in trust nevertheless * * to pay, the rents, income, etc. * * * unto my son, David, for his own proper use, support and maintenance for his life,” with remainder, etc.

The tenth clause of the will is as follows: 1 hereby authorize and empower my said executors to mortgage or otherwise encumber my said estate, real or personal, if they deem it for its interest so to do, and in their discretion to sell or dispose of the whole or any part of my real and personal estate, and to execute and deliver good and sufficient deeds of conveyance therefor to the purchaser or purchasers thereof, and I order and direct my said executors to invest the moneys arising from the proceeds of such sale, or sell any such securities, as in their judgment and discretion may seem most proper for carrying into effect the provisions of this will and the trusts thereby created.”

It is insisted by counsel for the executors, and by the special guardian of certain infant legatees, that upon the above stated facts the petition should be dismissed for several reasons — •

- 1st. It is claimed tbat as half of tbe residue of tbe estate is given to tbe executors, tbe judgment obtained against tbem as executors, is a ben against tbe decedant’s real estate within tbe meaning of section 2750 of tbe Code. I think otherwise. Tbe lien referred to in that section is such a lien as attached during tbe life of tbe decedent herself. Tbe mere entry and docketing of tbe petitioner’s judgment is not of itself, therefore, a bar to this proceeding.

2d. It is urged tbat tbe judgment in question was not rendered after a trial upon tbe merits within, tbe meaning of section 2756. This contention I think unsound. Tbe papers show tbat an inquest was taken and tbe plaintiff must have been required to prove all tbe material abegations of bis complaint which were denied by tbe answer. This would constitute a trial on tbe merits.

3d. Tbe respondents suggest tbat, under tbe circumstances here disclosed, tbe granting of tbe petition should in any event be delayed until tbe determination of tbe pending accounting proceeding. If I did not feel bound to deny tbe application altogether, I should adopt this suggestion. Section 2759, subdivision 5, provides that a decree directing the disposition of a decedent’s real property shall not be entered until the surrogate shah have been made satisfied tbat all tbe personal property “ which could have been applied to tbe payment of debts has been so applied.” There is no better or more expeditious way of ascertaining tbe facts in this regard than by pushing to a close tbe proceeding for accounting.

4th. But I am convinced, upon full consideration of these matters, tbat by tbe terms of the will tbe property sought to be disposed of is expressly charged with tbe payment of debts, and is subject to a valid power of sale for tbat purpose (White v. Kane, 7 Civ. Pro. Rep., 267; Dennis v. Jones, 1 Dem., 80; Lupton v. Lupton, 2 Johns, Ch., 614: Reynolds v. Reynolds, 16 N. Y., 257, and cases cited).

Under section 2759 of the Code this petition must therefore be dismissed altogether.


text:
    In the estate of William Menck, deceased.

      (Surrogate’s Court of New York County,

      Filed September 2, 1886.)
    1. Executors and Administrators — Accounting voluntary — Code Crv. Pbo., § 2729.
    Where after the expiration of a year from the issuance of letters testamentary to an executor, but before a year had elapsed since the issuance of letters to a co-executor, and before the lapse of a year and a half since the issuance of letters to an executrix, a petition was filed by him for the judicial settlement of the accounts of himself and associates, and a citation issued whereby the co-executors and executrix were required to attend the judicial settlement of his account as one of the executors, the petition was granted so far as it related to the settlement of his own account.

      2. Same — INVoetottart — Code Civ. Pro., §§ 2’724, 2723, subd. 4.
    The petition was refused so far as it related to the account of the co-executor because a year had not elapsed since the issuance of letters to him, and as far as it related to the account of the executrix because a year and a half had not elapsed since the issuance of letters to her, and the circumstances were not'such as in the judgment of the court warranted a compulsory accounting.

      T. 0. Cronin, for executor, Williams; M. M. Budlong, for executrix and the other executor,
   Rollins, S.

By the. will of this testator, his wife, Jane Menck, and his daughter, Julia Budlong, were appointed executrices, and his friends, Mr. McGourkey and Mr. Williams, executors. His entire estate apart from his household furniture, plate, etc., was devised and bequeathed to such executors and executrices upon certain specified trusts. They were empowered in the life-time of his widow, and with her consent, to sell any or all of the real estate, and after her death, in the exercise of their judgment, to sell any portion thereof that might remain in their hands. They were directed to invest the personal estate and the proceeds of the sale of realty, “ in proper and safe securities suitable for a trust estate,” and to pay all rents and net income to the .widow during her life.

They were further directed to divide after her death “ the estate which may be subject to division ” into three parts, one to be transferred to the testator’s daughter Julia, another to be held by the executors and its income applied to the use of his grandson Henry, until he should attain the age of thirty years, th.e third to be so held and its income applied to the use of his grandchildren Henrietta and Robert until they should severally attain the age of thirty.

By the tenth clause of the will the testator provided as follows : “ After the death of my wife they (the executors) shall settle up their accounts as executors, and shall then open new accounts as trustees under this will.”

The testator died on the 28th of December, 1884. Letters testamentary were issued to his widow, and to his daughter, on January 28th, 1885; to executor Williams on February 10th, 1885; and to executor McGourkey, on December 2d, 1885. The widow died in April, 1885. On March 25th, 1886, executor Williams filed a petition for the judicial settlement of the account of himself and his associates, but causecLa citation thereupon to be issued and served, whereby his co-executors and Mrs. Budlong (as executrix of this estate, and also executrix of the estate of the testator’s widow) were simply required “ to attend the judicial settlement of the account of I. Newton Williams, as one of the executors, etc.”

Sections 2729 and 2730 of the Code of Civil Procedure provide that in case of the presentation by an executor of a voluntary petition for an accounting, after the expiration of a year from the issuance of letters, the surrogate must take the account, and hear the allegations and proofs of the parties respecting the same. So far, therefore, as the petition asks for the accounting of Mr. Williams himself it must be granted So far as it asks for the accounting of his co-executors it must be denied, and this for several reasons.

1. For lack of correspondence between its prayer and the terms of the citation in the particular above stated.

2. Because a year has not elapsed since letters were issued to executor McGourkey.

3. Because eighteen months have not elapsed since letters were issued to the executrix, and the circumstances do not in my judgment warrant me in exercising at present the discretion vested in me by the statute to compel an accounting.

The petitioner has filed an affidavit alleging that with Iris knowledge and approval one Meyer has kept certain books of account showing the amounts that have been received and disbursed by the executors in the administration of this estate ; that Meyer has refused to allow him access to such books; and that it is utterly impossible for him to make put or prepare his account herein “ of the receipts and disbursements of deponent and the executors of said estate ” without access to said books. Upon this affidavit the petitioner moves for an order directing Meyer to exhibit such books to him or his attorney. The moving party does not allege, it will be seen, that an examination of these books is needed for the preparation of the account of his own receipts and disbursements.

In an affidavit opposing this motion it is alleged on behalf of the surviving executrix that the petitioner has had no connection as executor with any of the matters of the estate recorded in said books, and that the petitioner has received of the assets of the estate the sum of $100, and no more.

As this allegation is not denied by the petitioner, I must deny his motion.


author: Lott S.

text:
    Matter of Albert H. Motz, Deceased.

      (Surrogate Court, Kings County,

      Filed September 20, 1886.)
    Practice. — Arswer to petitior must be specifc.
    Where a petition asks for tlie delivery to an executor of bonds alleged to belong to the decedent, the answer which claims a lien on them should state specifically the nature of the lien.
    The petition of the executor of Motz asked that Edgar M, Crawford be required to surrender to him certain bonds which the said Crawford is alleged to hold unlawfully and in violation of the right of the petitioner, and that the said bonds belong to the estate of the decedent and that the petitioner is entitled to the possession thereof. The answer of Crawford alleges that Demás Barnes as assignee in bankruptcy of T. H. and B. T. Yetterlein received said bonds and that they were the property of said assignor. “ That the said bonds were delivered to deponent by the said Demás Barnes, assignee, in order to enable such bonds to share in a dividend resulting from the proceeds of the sale of certain lands which came to the hands of deponent and that deponent is liable to the said Demás Barnes for the return of said bonds to him, as well as for the dividends to which they are entitled subject to unsettled matters between deponent and the said assignee.”

      Edward McKinley, for petitioner; Jas. K. EiU, Wing Sf Shoudy, for E. M. Crawford.
   Lott S.

Mr. Crawford denies the title of petitioner’s testator to the bonds in question and asserts ownership by another and a lien, thereon as to unsettled matters between him and the assignee of Yetterlein.

I think the answer should be more specific as to the nature of this lien, and the respondent may have ten days to file amended answer.


author: Rollins, S.-

text:
    In the estate of James Griffith Henry, deceased.

      (Surrogate’s Court of New York,

      Filed October 10, 1886.)
    1. Wilt. — Revocation of peon ate — Costs.
    Upon the denial of a petition for the revocation of the probate of a will the question of charging costs to the defeated contestant addresses itself to the sound discretion of the court.
    2. Same — When costs not chargable against contestant.
    A contestant is not chargable with costs where his resistance is based upon what may seem to him proper and necessary in the interest of justice, and for the due protection of his rights.
   Rollins, S.-

The proceeding brought by Evan J. Henry for revoking the probate of this testator’s will is about to be terminated by a decree denying the petition for revocation and confirming the probate. By that decree certain costs and counsel fees will be awarded the proponent, and provision will be made for compensating the services of the special guardian of James Griffiths Henry, Jr., the infant son of the testator.

Shall these costs and allowances be directed to be paid out of the estate, or shall they be charged in whole or in part to the petitioner ?

Section 2558, of the Code of Civil Procedure provides that, save for certain exceptions with which we are not here concerned, costs shall not be awarded out of a testator’s estate, or otherwise, to one who unsuccessfully opposes the probate of such testator’s will, or strives unsuccessfully to have such probate revoked. The award of costs in probate proceedings to any party not within this inhibition is regulated by the general provisions of section 2557. “ Such costs,” says that section, “ may be made payable by the party personally, or out of the estate or fund as justice requires.” The evident intent of the Legislature in absolutely forbidding the surrogate to reward out of a testator’s estate an unavailing opposition to the establishment of such testator’s will, is very manifest. For ten years prior to the enactment of the present provision of the Code this court had been vested with such large discretionary authority as regarded the allowance of counsel fees in will controversies that however wisely and justly.such authority was sought to be exercised, the fact that it could be exercised at all was provocative of reckless litigation. But the Legislature while recognizing by its adoption of section 2558, the mischief of the system of costs and allowances by that section abrogated, has not seen fit to direct that by the mere'act of fruitlessly resisting the probate or confirmation of probate of a will, a suitor not only forfeits all claim to the discharge of his own costs out of the funds of the estate, but becomes necessarily chargeable also with all other costs attending the controversy. It is apparent therefore that, in the contemplation of the Legislature, cases may arise in which an unsuccessful opponent of a will would be treated unjustly if required to bear the entire burden of costs upon his own shoulders. It has been the practice of the present surrogate to refuse so to condemn a defeated contestant, unless by the disclosures of the trial itself, or by some other means, it has been made to appear that such contestant has acted mala fide or vexatiously, and without grounds of opposition which might reasonably have seemed to him to be fair and just. A defeated contestant should doubtless be charged with costs where his resistance has been wanton or malicious or clearly unfounded, but not with a resistance based upon what, from his standpoint, may have seemed proper and necessary in the interests of justice, and for the due protection of his rights. This is a proposition which seems to me to be supported by Broadbent v. Hughes, 29 L. J. P., 134; Summerrell v. Clement, 3 Sw. & Tr., 35; Robins v. Dolphin, 1 Sw. & Tr., 518; Nichols v. Binns, Id, 239; Seaton v. Sturch, 20 L. J. P., 195; Mitchell v. Gard, 3 Sw. & Tr., 75.

The question of charging costs to a defeated contestant is one which addresses itself to the sound discretion of the court. It is in the very nature of things impossible that the exercise of this discretion can be controlled by any precise and definite rule. “No positive regulation could be established,” said Wilde, J., in the case last cited, “ that would bear the strain put upon it by the justice or hardship of particular instances. * * * But if there be sufficient and reasonable ground, looking to the knowledge, or means of knowledge, of the opposing party, to question either the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent.”

This seems to me to be a sound and sensible doctrine. For, as the learned judge points out, it is in the interests of justice that doubtful wills should not pass unchallenged to probate merely because a contest, in case it should prove unsuccessful, would entail upon the contestant a grievous burden of costs; while on the other hand, it is equally in the interests of justice that persons should not be tempted into unwarrantable will controver, sies by reflection that however such controversies may result-the attendant expense is sure to be defrayed, in whole or in part, out of the funds of the decedent’s estate.

Now, under what circumstances does this question respecting costs arise in the case at bar?

The proponent of this will, who was formerly the wife of one Simmons, obtained a divorce from him in' December, 1881. In January, 1882, she was married to this testator,-who died in 1888, leaving one child the fruit of such marriage. In October, 1888, the testator’s will was admitted to probate in this county. Within the year then next ensuing, the petitioner (father of the testator) commenced this proceeding for revocation of probate, charging, among other things, that the proponent by the exercise of fraud and undue influence had procured the making and execution of the will, and alleging also that James Griffiths Henry, Jr., was not the son of the testator and his next of kin, and that the- proponent was not the testator’s lawful wife, but that at the time of her marriage to the testator, and at the time of his death, she was the lawful wife of one Simmons, and that the degree of the supreme court, by the provisions whereof she had been divorced from Simmons, was fraudulently and collusively procured, and was therefore invalid and of no effect. The petitioner insisted that he was himself his .son’s only next of kin, and that he was entitled as such to dispute the validity and legality of the will. In November, 1885, the surrogate directed that the preliminary issue as to the status of the petitioner, the validity of the proponent’s marriage to the decedent, and the legitimacy of their infant son, should be presented and determined before the petitioner could be permitted to attack the will. This direction was adhered to in December, 1885, when a motion was made in behalf of the petitioner that all the issues “ be heard and passed upon together, and not separately.” At the same time the surrogate denied an application of the petitioner for an order directing the examination by commission of certain witnesses who it was claimed could give material testimony tending to show that the proponent was not the decedent’s widow. These decisions were put upon the ground that the petitioner could not, in the revocation proceeding, be allowed to impeach the validity of the decree by winch the proponent was divorced from Simmons, except by evidence showing that the court in which that decree was entered was without jurisdiction to pronounce it. And it was held further that the petitioner could not be allowed to offer evidence tending to impeach the marriage between the decedent and the proponent upon the ground of any force, duress or fraud employed by the latter in bringing such marriage about. The petitioner appealed from the order denying the application for the issuing of commissions and from the order denying the motion to try the issues simultaneously. It was claimed by his counsel that those appeals operated as a stay of proceedings ; but the surrogate held otherwise, and directed that the trial of the preliminary issue should proceed. The petitioner thereupon entered into a stipulation that in the event of the affirmance of the orders in question or the dismissal of the appeals, a decree denying his petition should straightway be entered.

. Subsequently the appeals were abandoned, and the petitioner now interposes no obstacle to the confirmation of probate. The affidavits submitted by his counsel to support his protest against the proponent’s claim that he should be condemned in costs, satisfy me that the petitioner verily believed and had reasonable ground for believing that his contest of the will might be successful. He was advised by eminent counsel that in the revocation proceeding he could cause an inquiry to be instituted into the validity of the proponent’s divorce from Simmons, and her subsequent marriage with the testator, and that the probable result of that inquiry would be the ascertainment that the testator had never been lawfully married. I have held that the counsel who gave this advice were mistaken in believing that the Simmons divorce could be here brought in question. If I had held otherwise it is possible that the petitioner might have succeeded in establishing his status as contestant, and might also have succeeded in his opposition to the confirmation of probate. It would be treating him harshly to mulct him in costs for following the advice of counsel who were, I doubt not, persuaded that his contention was just, and would be sustained by the courts. He is charged with bad faith in altogether failing to substantiate the allegation of his original petition, that even if the marriage between the proponent and the decedent were concededly valid, James Griffiths Henry, Jr., was not their son. The slender basis for making the allegation was probably the statement in Mr. Keasby’s letter of June 13, 1884, that he (Mr. Keasby) “ thought evident ” from his interview with Mr. Lowell, “ that the child was bogus and the whole matter of issue a part of the infamous conspiracy against your ” (the petitioner’s) “ son.” Tbe petition was verified on tbe 17tb of October, 1884, and it may well be that the petitioner then believed Keasby’s suspicion to be well founded and afterward discovered that it could not be substantiated.

Tbe allegation ought not to have been made ; but tbe petitioner’s offense does not merit the penalty with which I ■ am asked to visit it. My conclusion upon the whole case is that such costs and allowances as may be awarded should be paid out of the funds of the estate.


text:
    In the estate of Sarah L. Powell, deceased.

      (Surrogate’s Court of New York County,

      Filed October 11, 1886.)
    1. Will — Probate of — Costs.
    Where upon proceedings for the probate of a will the trial was not unreasonably delayed by a contestant and no witnesses were examined except the subscribing witnesses to the will, the court declined to charge the contestant with costs.
    2. Letters op administratioN with the will ANNEXED — To whom issued — Code Civ. pro. § 2643.
    Where a will appointed no executor or executrix and there was no residuary legatee under the will, there being principal and specific legatees who were applicants for letters of administration, and tbe testimony showing that the testatrix had declared a preference that a certain one should manage the estate, it was held that, other things being equal the preference might properly be allowed to have weight.

      Win. U. Sage, atty. for proponent; John W. Weed, general guardian.
   Rollins, S.

I. A decree may be entered admitting to probate the paper heretofore propounded as this decedent’s will.

II. I decline to charge the contestant with costs. The trial has not been unreasonably delayed, and no witnesses have been examined except the subscribing witnesses to the will. Within my recent decision in Matter of Henry (ante p. 344) justice does not require that the contestant should be personally charged with the proponent’s costs.

III. The will appoints no executor or executrix.

By the provision of section 2643 of the Code of Civ. Pro., letters of administration o. t. a. must issue in such a case.

First'. To one or more of the residuary legatees qualified to act, and in default, etc.,

Second. To one or more of the principal or specific legatees so qualified.

There is no residuary legatee under this decedant’s will. The principal and specific legatees are Anna M. Smith, Mary C. Case, Iiouise C. Wilson, Sarah L. Smith and Isabella C. Fish. Anna M. Smith and Mary C. Case are rival applicants for letters, Which of the two has the greater interest in the estate is not altogether clear. If there was any considerable disparity in the extent and value of their respective claims as legatees of the effects to be administered, that circumstance might be regarded as controlling (Quintard v. Morgan, 4 Dem., 168).

Counsel for Mrs. Case has presented affidavits made by the two subscribing witnesses, Hattie A. Hatch and Agnes F. Smith. The former who is the manager of Hahnemann Hospital, in this city, drew the will. She declares that the importance of inserting a provision for the appointment of an executor did not occur to her, but that the testatrix expressly stated that she wished nobody except her niece, Mrs. Case, to have anything to do in the management of her estate. The other subscribing witness, Agnes F. Smith, also bears testimony to the fact that the decedent expressed a wish, that to Mrs. Case should be entrusted the enforcement of the provisions of this will.

I am not aware that in any reported case the selection of an administrator c. t. a. from among several persons having equal rights under the statute has been made to depend upon the declared preference of the testator. But I think that, other things being equal, such preference may properly enough be allowed to have some weight, just as in the selection of a guardian for an infant the wishes of the infant’s deceased parents are deemed worthy of consideration by the courts even though such wishes are not expressed in legal form (Underhill v. Dennis, 9 Paige, 202; Cozine v. Horn, 1 Bradf., 143; Foster v. Mott, 3 Bradf., 409). There seem to be good grounds for believing that if the importance of appointing an executrix had occurred to the decedent she would have chosen Mrs. Case for that office, and besides, that lady is a niece of the decedent and resides in this city, while Mrs. Smith resides in the State of New Jersey, and is not of decedent’s blood.

Letters may issue to Mrs. Case.


text:
    Estate of Mary McMulkin, deceased.

      (Surrogate’s Court, New York County,

      Filed October 5, 1886.)
    1. Will — Execution of in foreign State — When entitled to peobate here — Code Civ. Peo., §§ 2611-2994
    If a will or testamentary paper is shown to have been executed in conformity witli tiie laws of this State, it is, so far as regards the formalities of execution, entitled to probate wherever and by whomsoever executed, whatever the nature of the property, the disposition of which it seeks to effect, and wherever such property may be situated.
    2. Same — Provisions of § 2611 and § 2691 not inconsistent.
    There is no inconsistency between § 2611 as thus interpreted, and § 2694 which declares that “ the validity and effect of a testamentary disposition of personal property situated within the State are regulated by the laws of the State or county of which the decedent was a resident at the time of his death.
    3. Same — Peobate of will.
    A will may he entitled to prohate although all its dispositions of property may be discovered to be invalid.

      L. 0. Arnold, Jr., for proponents, Merril L. Rogers, for legatee, Henry Hoyt, for contestant.
   Rollins, S.

A paper purporting to be the will of Mary Mc-Mulkin, deceased, has been propounded in this court for probate. The petition praying for such probate alleges that the decedent died at Glasgow, Scotland, on November T9,1885, and that she was at the time a resident of that city. The petition does not allege that she left any assets in this county, or that there are in this county any assets belonging to her estate that have been brought hither since her death. It is plain, therefore, that, as the proceeding now stands, the surrogate has no jurisdiction to entertain it. It seems to be admitted, however,' that there are in fact, assets of the estate in the County of New York, and it is also admitted that the paper in dispute was executed in Scotland, that the decedent was there resident at the time of its execution, and that its execution is fatally defective under the laws of that country. I am asked by all parties interested to determine whether, upon this state of facts, it must necessarily be denied probate even though it was executed in manner and form as prescribed by our Statute of Wills. Section 2611 of the Code of Civil Procedure provides that “a will of real or personal property-executed as prescribed by the laws of the State, or a will of personal property executed without the State and within the-United States, the Dominion of Canada or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the State or country where it is or was executed, or a will of personal property executed by a person not a resident of the State according to the laws of the testator’s residence, may be proved as prescribed in this article.”

It is argued with much ingenuity that the first clause of tha section above quoted was not intended to cover wills of foreigners or non-residents executed without this State, and that in passing upon the sufficiency of the execution of a will of personalty made without this State by a non-resident, regard should be had solely to the law of his domicile, except that such a will, wherever the decedent’s domicile, should be deemed properly executed, if executed in a sister State, or ,in the Dominion of Canada or in the Kingdom of Great Britain and Ireland according to the law of the place of such execution.

I should be greatly disposed to put this interpretation upon the statute if its language would permit; but it seems to me to assert very squarely that if a testamentary paper is shown to have been executed in conformity with the laws of this State, it is, so far as regards the formalities of execution, entitled to probate wheresoever and by whomsoever executed, whatever the nature of the property whose disposition it seeks to effect and wherever such property may be situated. One of tbe sections added by cbap. 320 of the Laws of 1830 to tbe first title of cbap. 6, part 2, of tbe Re-vised Statutes, (which section appears as section 69 at page 71 of 3 Bank’s Statutes, 6th edition) provided as follows : “ No will of personal estate made out of this State by a person not being a citizen of this State shall be admitted to probate under either of tbe preceding provisions.unless such will shall have been executed according to tbe laws of tbe State or country in which tbe same was made.” This provision was never repealed in terms until the p’assage of the General Repealing Act. (Chap. 245 of the Laws of 1880) Avbich ushered in the Code; but it was provided by cbap. 118 of tbe Laws of 1876 that every will and other testamentary instrument made out of the State of New York, and within the United States of America, the Dominion of Canada, or the Kingdom of Great Britain and Ireland, whatever may be the domicile of the person making the same at the time of making the same, or at the time of his or her death, shall as regards personal estate, be held to be well executed for the purpose of being admitted to probate in tbe State of New York, if the same be made according to the forms required either by the law of the place where the same was made or by the law of the place where such person was domiciled when the will was made or by the Laws of the State of New York.

I can discover no indication that the provisions of the statute just quoted were intended by the codifiers or the legislature to be altered, so far as they relate to th$ matter here under discussion, by the substituted provisions of the Code.

There is no inconsistency between section 2611, as thus interpreted, and section 2694, which declares that “ the validity and effect of testamentary disposition of personal property situated within the State are regulated by the laws of the State or country of which the decedent was a resident at the time of his death.

A will may be entitled to probate although all its dispositions of property may be discovered to be invalid.