text:
    In the Matter of the Will of David Russell, dec’d.

      (Surrogate’s Court, New York County,

      Filed April 5, 1887.)

    1. Perpetuities—Statute against—Will—Construction op.
    By the provisions of 3 R S., 8256, § 1, the absolute ownership of personal property shall not be suspended by any limitation or condition, whatever, for a Lnger period than during the continuance and until the-termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or, if suca instrument be a, will, for not more' than two lives in being at the death of the testator. Meld, that a will, the provisions of which were under consideration, should be construed without having regard to the statute, so as to ascertain its proper meaning, and that the question of its harmony with or viotion of the statute provisions should be postponed till afterwards.
    2. Same—Violation op.
    If there is a possibility that the event upon which a limitation is made to depend may exceed in point of time the period authorized by law, that is a circumstance fatal to its validity. A limitation is effectual only when it must of necessity take effect within the compass of two lives in. being at the testator’s death.
   Rollins, S.

By the second clause of the instrument, the validity of whose provisions is here in issue, this testator gives his entire residuary estate to his executor in trust, with power to sell and to invest the proceeds of sale and to collect and receive the income, interest, rents, etc., of such property or proceeds, and with the following directions as, to distribution:

“I do direct that from the net income, interest money, rents and dividends collected and received as aforesaid, my said trustee do pay to my sister, Jane R. McAllister, the annual sum of $125 during her life; and that my said trustee do pay to my brother, Wilham Russell, the annual sum of $125 during his natural life; and that my said trustee do pay all the rest, residue and remainder of said income, interest money, rents and dividends, as the same are collected and received, to my daughter, Mrs. Isabella Home, for and during the full end and term of her natural life.

It being my will and I do direct that upon the decease respectively of my said sister Jane, and my brother William, the amounts of money directed to be paid to each of them respectively as aforesaid be paid as part of the income of my residuary estate, to my aforesaid daughter Isabella, the same as the income of • the other parts of said residuary estate are hereinbefore directed to he paid to her.

It is my further will, and I direct that upon the decease of my said daughter, the principal of my estate, as the same is relieved from the payment of the life interests, as herein provided, by the deaths respectively of the persons for whose benefit the same are respectively created, be divided equally, share and share alike, by and between certain specified persons.

It is claimed on behalf of the testator’s daughter, Mrs. Home, that these dispositions, which admittedly concern personal property alone, are in contravention of the provisions of section 1, tit. 4, chap 6, part 2, Rev. Stat. (3 Banks, 7th Ed., 2,256), and are therefore ineffectual and void.

The language of that section is as follows :

“The absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition ; or, if such instrument be a will, for not more than two lives in being at the death of the testator.”

In determining whether the provisions in dispute are valid or invalid it is essential to inquire in the first place what it is that they seek to accomplish, whether they are in harmony with the Statute, or at odds with it, is a question whose consideration should be postponed until we have discovered precisely what they mean. Van Nostrand v. Moore, 52 N. Y., 12; Colton v. Fox, 67 N. Y., 348.

“We must first ascertain the intention of the testator, or more properly the meaning of his words, in the clause under consideration and then endeavor to give effect to them, so far as the rules of law will permit Our first duty is to construe the will; and this we must do, exactly' in the same way as if the rule against perpetuities had never been established, or were repealed when the will was made ; not varying the construction in order to avoid the effect of that ■rule, but interpreting the words of the testator wholly without reference to it.” Lord Dungannon v. Smith, 12 Cl. & Fin., 599.

Now it is obvious that the testator intended that his residuary estaté should be kept as one undivided fund so long as his daughter should five. Whether either or both of the annuitants should die in her fife-time, or whether, on the other hand, both should survive her, it was manifestly his purpose that the entire property should be held by the executor until her death.

Not until the arrival of that period is any distribution of the corpus to be effected, and not until then is any portion of the residue tó be relieved from the charge of contributing from its income to the various beneficiaries.

In the event that one of the annuitants shall die before the testator’s daughter, the entire estate must be retained by the executor for yielding income for the daughter and the surviving annuitant. In the event that such surviving annuitant shall thereafter die, while the daughter is yet living, the whole estate must be retained until the daughter’s death.

If the daughter shall die after the death of one of the annuitants and in the life-time of the other, it is certainly true as regards a part of the estate, and is perhaps true as regards all, that no distribution can be effected until the termination of the third life.

A similar situation will arise in case the daughter shall predecease both annuities, which seems to be the contingency that the testator specially had in mind.

He declares that upon his daughter’s decease the principal of his estate, “as the same is relieved from the payment of the life interests by the deaths respectively of the persons for' whose benefit the same are respectively created,” shall be distributed,” etc. But the will gives no intimation as to what portion of the principal shall be “relieved” upon the death of the daughter and one oí the annuitants, and what portion shall be thereafter retained for the benefit of the surviving beneficiary.

To hold that one-half of the estate will then become distributable would be to hazard a guess as to the testator’s meaning rather than8to put a fair interpretation upon his language. Even these vague directions as to a separation of the estate into shares and the exoneration of some portion of it from the charge of producing income for the several beneficiaries, were not intended to be effectual, as has been already intimated, until after the death of the daughter, even though that event should not occur until after the death of both annuitants. This case does not, therefore, fall under the protection of Moore v. Hegeman (72 N. Y., 376), or of Monarque v. Monarque (80 N. Y., 320.)

If there is a possibility that the event upon which a limitation is made to depend may exceed in point of time the period authorized by law, that is a fatal circumstance. A limitation is effectual only when it must of necessity take effect within the compass of two lives in being at the testator’s death. Hawley v. James, 16 Wend., 61; Schettler v. Smith, 41 N. Y., 328; Knox v. Jones, 47 id., 389; Shipman v. Rollins, 98 id., 311.

Such is not the character of the limitation here under discussion.

The provision creating it and creating the trust respecting the income must, therefore, be pronounced void.


source: Caselaw Access Project

author: Rollins, S.

license: Public Domain

text:
    In the Estate of John F. Delaplaine, Deceased.

      (Surrogate’s Court, New York County,

      Filed April 24, 1887.)

    1. Will—Probate of—Jurisdiction of surrogate over a will not produced BEFORE HIM.
    The surrogate’s court has jurisdiction over probate of a will not produced before him, and not shown to be lost or destroyed, when it is shown that it is detained in another state or country under such circumstances that its production is impossible.
    2 Same—Unattested by subscribing witnesses—Jurisdiction of surrogate TO ADMIT TO PROBATE.
    The surrogate’s court has jurisdiction to admit to probate a will unattested by subscribing witnesses, in case attestation by subscribing witnesses is not required by the law of its maker’s domicil.

      Henry W. Toft, for petitioners; Billings & Cardozo, for James Cruickshank, ex’r; J. A. Welsh, for Talbot Chambers, ex’r; J. B. Chase, for Julia Chase, resp’t; G. R. Schieffelin, for J. M. Schieffelin and James Beekman, resp’t.
   Rollins, S.

Amelia A. Stolzel and Arthur F. Stolzel, as devisees and legatees under an instrument claimed to have been executed by this decedent on July 17, 1883, as a second codicil to a paper heretofore admitted to probate as his last will and testament, commenced in June last a proceeding in this court for the probate of such second codicil.

It is alleged in their petition that the decedent died in February, 1885, in the city of New York; that he left in the said city personal assets of great value; that the paper under which the petitioners claims came into being in the city of Vienna, in the empire of Austria; that it is holographic, and bears the signature of decedent as its maker; that though it does not purport to have been executed in the presence of any person as a subscribing witness, it is nevertheless valid and effectual, because it was executed in accordance with the laws of the said empire of Austria, in which decedent then had his residence and permanent domicil; that it is not produced before the surrogate, for the reason that it is in the possession of a certain Austrian court in the petition specified, which court will not suffer it to be removed from its files.

Answers have been interposed on behalf of certain persons interested under the will as proved.

It is insisted by the respondents that this court is without jurisdiction in the premises:

First. Because of the non-production of the instrument whose probate is sought, and

Second. Because of the conceded fact that such instrument is without subscribing witnesses.

1. Is the actual production of a testamentary paper before the surrogate essential to the exercise of his jurisdiction to grant or to refuse probate ? Certainly not in all cases. Section 2621 of the Code of Civil Procedure expressly, declares that “a lost or destroyed will” can be proved in a surrogate’s court. But the respondents claim that only such cases as are covered by section 2621 are excepted from ¡.what they insist is the general rule, that without the physical presence of the paper sought to be established as a will the surrogate is powerless to adjudicate upon its title to probate.

If there had been no change in the statutes touching the • jurisdiction of this court since the arising of the situation upon which the court of appeals comments in Russell v. Hartt (87 N. Y., 19), the question here presented would be susceptible of an easy solution. That situation was as follows:

The surrogate of Ulster county had admitted to probate an instrument that had never been produced before him, and that could not be produced for the reason that it was in the custody of a court in Scotland which refused to give it up. That instrument disposed of real and personal property in Scotland and of other real and personal property in the state of New York. It had been executed in accordance with the formalities both of the Scotch law and of the law of this state. The subscribing witnesses were examined in Scotland under a commission issued by the surrogate, and their depositions were admitted at the trial and constituted the evidence by which the decree appealed from was supported.

In the course of an opinion in which all his associate judges concurred, Finch, J., pronounced, chapter 460 of the act of May 16, 1837, broad enough in its terms to authorize the surrogate to take proofs of an existent will without requiring its production.

The provisions to which the learned judge referred were manifestly those contained in the 1st 7lst‘ and 77th sections of the act.

Section 1st gave to the surrogate of each county authority “to take the proof of last wills and testaments of all deceased persons in the following cases ”—(naming them).

Section 7lst expressly abrogated the limitation imposed upon the surrogate’s authority by section 1, title 1, chapter 2, part 3 of the Revised Statutes, to the effect that “no surrogate shall, under pretext of incidental power or constructive authority, exercise any jurisdiction whatever not expressly given by some statute of this state.”

Section 77th provided that, “ on any proceeding or matter in controversy before a surrogate, when the testimony of a witness in any other state or territory of the United States, or in any foreign place, is required by any party to such proceeding or controversy, the surrogate may issue a commission to take such testimony.”

The act of 1837 was repealed in terms by the general repealing act of May 10, 1880 (Laws 1880, chap. 245), but the provisions upon which rests the decision in Russell v. Hartt, were substantially re-enacted in the Code of Civil Procedure:

First. Section 1 of the old law reappears as section 2476 of the Code. To the surrogate’s court of each county the latter statute gives “jurisdiction, exclusive of every other surrogate to take the proof of a will in either of the following cases ”—(specifying them).

A comparison of the language just quoted with the language of section 1 of the act of 1837, supra, does not even faintly suggest the notion that by the later statute the legislature intended to restrain the surrogate’s probate jurisdiction within narrower limits than had been fixed by the earlier. Unqualified authority “to take the proof of a will ” would surely be no no less comprehensive than unqualified authority “to take the proofs of last wills and and testaments of all deceased persons;” and while the authority conferred by neither of the statutes under consideration is unqualified, but in both of them is limited to certain specified “following cases,” it will appear, when the two sets of “following cases” are juxtaposited, that while the field of the surrogate’s jurisdiction has been in no respect narrowed, it has been in some respects enlarged by the later enactment.

Second. It cannot be claimed that any change has been wrought in the character and the extent of the authority of this court, by the repeal of section 71 of the act of 1837, which itself repealed the inhibition of the Revised Statutes against the exercise by the surrogate of “incidental powers;” for, by subdivision 11 of section 2481 of the Code, the surrogate is authorized “to proceed in all matters subject to the cognizance of his court,” where it is not otherwise prescribed by statute, “according to the course and practice of a court having by the common law jurisdiction of such matters, and to exercise such incidental powers as are necessary to carry into effect the powers expressly conferred.” It is true that section 2472 of the Code, which is now the source of the surrogate’s general jurisdiction, and -which in its first subdivision empowers him “to take the proofs of wills” and “to admit wills to probate,” declares in its concluding sentence that the jurisdiction thus conferred “must be exercised in the cases and in the manner prescribed by statute.” But a like restriction, in words almost identical, was imposed by sec. 1, tit. 1, chap. 2, part 3 of the Revised Statutes (3 Banks, 6th ed., 326), and remained unaltered upon the statute book until it was displaced by the corresponding provision of the Code.

Third. Section 17 of the act of 1837 gave the surrogate authority to issue commissions for the examination of witnesses in other states or countries. It will, of course, be conceded that powers no less ample are now conferred by the Code.

[See section 2538, making applicable to surrogates’ courts, article 2 of title 3 of chapter 9, which relates to “ depositions taken without the state for use within the state.”]

I have thus demonstrated that if the decision in Russell v. Hartt is not to be taken as controlling my disposition of the principal matter here in- controversy, it is -for some reason quite apart from any supposed variations between those-sections of the act of 1837 upon which the decision rests,, and cognate provisions in the law as it stands to-day.

But the parties opposing the probate of the alleged codicil insist that lack of jurisdiction in the surrogate’s court to prove a testamentary paper not produced, and not sought, to be established as lost or destroyed, is made apparent by reference to section 1861 of the Code.

■This section forms a part of article 3, title 3, chapter 15.. The chapter is wholly concerned with certain special provisions regulating “Actions;” the title is styled “Actions relating to the estate of a decedent;” the article is entitled “Actions to establish or impeach a will; ” the section provides that in certain specified classes of cases one may maintain an action to procure a judgment establishing a. will.

The first and second of these classes are described as follows: “Where a will of real or personal property, or both,, has been executed in such a manner and under such circumstances that it might, under the laws of this state, be admitted to probate in a surrogate’s court, but the original will ” either (a) “ is in another state or country, under such circumstances that it cannot be obtained for that purpose; or (6) “ has been lost or destroyed by accident or design.”

The third class is thus defined: “Where a will of personal property, made by a person who resided without the-state at the time of the execution thereof or at the time of his death, has been duly executed according to the laws of the state or country in which it was executed, or in which the testator resided at the time of his death, and the case is not one where the will can be admitted to probate in a-surrogate’s court under the laws of the state.”

The language of the first part of the first and the last part' of the last subdivision certainly seems to involve the notion , that inability to produce a will because of its detention in 'another state or country, operates to prevent its admission to probate in a surrogate’s court, even though that court would else have undoubted jurisdiction in the premises.

If, however, the statutes which confer upon the surrogate his authority in matters of probate, contain no such restrictions and limitations as regards wills not produced in his court, but on the contrary, are couched in terms sufficiently hroad and general to justify him in taking the proofs of such instruments, it is plain, I think, that he is not to be busted of his jurisdiction by mere inference and implication from words used by the legislature in conferring jurisdiction upon other tribunals.

Suppose that among the cases specified in section 1861 as warranting the maintenance of an action to establish a will, was the case following: “Where a will has been executed under such circumstances that it might, under the laws of the state, be admitted to probate in a surrogate’s court, but ” such will is worded in the German language, or is written on blue paper; it could scarcely be claimed that such a provision would, of itself, deprive the surrogate of authority to take proof of wills written on blue paper, or of wills expressed in the German tongue. There is no such virtue in a but. And that ‘ ‘ but ” has no such virtue, as it is employed in this section, becomes manifest upon consideration of the last clause of its first subdivision—the clause relating to lost wills and wills that have been destroyed. The punctuation of the section is so faulty that upon a casual reading one may fail to note that that clause, like the one preceding, is connected with clause first by the word “but.” [I have made that fact conspicuous by the insertion of the word “either” before the words “is in another state or country ” in the foregoing quotation from the statute.]

The implication that procedure by action is the only procedure whereby lost and destroyed wills can be proved, and that surrogate’s courts are, therefore, powerless in the premises, is no less definite and positive than the implication that an action is the only proceeding for establishing wills detained in a foreign state or country and for that, cause not producible. But there is not the slightest ground for supposing that the legislature or the codifiers intended that the provisions which thus empowers courts of general jurisdiction to establish a lost or destroyed will should be taken as involving a denial of like authority to the surrogate. On the contrary, section 2621 of the Code, which went into operation simultaneously with section 1861, expressly provides that “a lost or destroyed will can be admitted to probate in a surrogate’s court.” And it would appear from Mr. Throop’s note to section 1861, that the latter section -does not embody an afterthought of the codifiers, but that, when 'the phraseology of the earlier was under the consideration, the commissioners had in mind the extension to all surrogate’s courts of "that power of proving lost and destroyed wills which had been exercised by the surrogate of this county since 1870.

That section 1861 should not receive the interpretation claimed for it by these contestants, is apparent from another consideration. An examination of the statutes for which it has been substituted will show, that those statutes furnished the appellant in Russell v. Hartt, with arguments against the authority there exercised by the surrogate, no less forcible than the arguments based in the case at bar upon the supposed restrictive language of the Code.

Section 1861 is in the main a re-enactment, with modifications, of sections 63a, 68a, and 635, title 1, chapter 6, part 2, Revised Statutes (3 Banks, 6th ed., 70 and 71).

Section 63a provided that: “Awill duly executed according to the laws of this state, where the witnesses to the same reside without the jurisdiction of this state, or a duly exemplified or authenticated copy thereof, where the original will is in the possession of a court or tribunal of justice in another country or state whence the same cannot be obtained, may be proved in the court of chancery, upon a commission to be issued for that purpose on application to the chancellor.”

Section 68a provided that “wills of personal estate duly executed by persons residing out of this state, according to the laws of the state or country in which the same were made, may be proved under a commission to be issued by the chancellor.”

Neither of these sections contains any express reference to the circumstance td which they both owe their origin— the lack of power in the surrogate’s court of that time to issue a commission for the examination of witnesses without the state.

Sections 63a-68a did not form a part of the Eevised Statutes as originally enacted, but were inserted afterwards. Section 16, chapter 320, Laws of 1830. In commenting upon their object and effect the revisers say: “There was no provision in the old statutes, nor is any contained in the new, relative to the proof of foreign wills. The above sections will remedy the omission in a manner which, it is believed, will be entirely safe.” 5 Edm. Stat., 631.

The sections here referred to continued in force uninterruptedly until their repeal in 1880, and that too without any modification except such as was occasioned by the abolition of the court of chancery, and the transference of its powers and jurisdiction to the supreme court. Section 16, chap. 280, Laws of 1847.

That these sections lodged, first in the chancery court and thereafter in its successor, exclusive jurisdiction of wills not producible because of their detention in a foreign tribunal, and of wills whose probate involved the examination of witnesses without the state, was strenuously urged before the court of appeals in Russell v. Hartt.

But Finch, J., pronouncing the court’s opinion, expressly sanctions the contention of the respondents in that proceeding, that before the enactment of chapter 320 (supra), the surrogate's court had had jurisdiction to take proof of foreign wills, and continued to have it thereafter, but that this jurisdiction was so “hampered and rendered ineffectual, in cases where the witnesses could not be produced, by the inability of the court to issue a commission, as to make necessary and occasion,” the grant of authority to the chancellor. This view of the matter was very clearly and forcibly enunciated by Surrogate Bradford in Isham v. Gibbons (1 Brad., 69), cited with approval in Russell v. Hartt.

I am satisfied that there are no such differences between sections 63a—69a, as thus construed, and section 1861 of the Code, as to warrant the notion that, by the latter enactment, the legislature intended to hedge about the probate jurisdiction of the surrogate with restrictions such as had never theretofore been imposed.

Counsel for the contestants lay some stress upon the direction contained in section 2635 of the Code, to the effect that except where special provision is otherwise made by law, a written will, after it has been proved, “must be retained by the surrogate until the expiration of one year after it has been recorded * * and must then be returned upon demand to the person who delivered it,” etc.

This provision has taken the place of section 54, title 1, chapter 6, part 2 of the Revised Statutes (2 Revised Stat., 66), which declared that “all wills, whenever proved according to law, except such as are required to be deposited, shall, after being recorded, be returned upon demand to the person who delivered the same,” etc.

The language of 2635 involves no stronger implication that the production of a will must precede its admission to probate than is involved in the provisions above quoted from the Revised Statutes, and the latter provisions were in force when the will which occasioned the controversy in Russell v. Hart was admitted to probate.

It would be profitless to make detailed comment upon the results of comparing, section by section, the terminology of the Code with that of the various statutes which it has supplanted. To any person who will undertake that comparison it will clearly appear that, both in spirit and in letter, the later enactments contemplate an expansion rather than a contraction of the authority of this court. If there be any difference at all, therefore, between the present situation and that which existed at the entry of the decree in Bussell v. Hart, it is a difference which makes the decision in that case all the more controlling in this.

Second. The claim that this proceeding should be dismissed because the codicil, for whose probate it asks, is unattested, rests upon a very slender foundation. I have already referred to the provisions of sections 2472 and 2476 of the Code of Civil Procedure, one of which gives to the surrogates of the state general authority to “take the proof of wills” and “to admit wills to probate,” and the other of which specifies the cases in which that authority may be exercised in any particular county by the surrogate of such county.

One of the cases thus specified is described as follows: “Where the decedent, not being a resident of the state, died within that county, leaving personal property within the state.” The case at bar, assuming, as it must of course be assumed for present purposes, that the allegations of the petition are true, indisputably falls within that description.

Now, there is in the Code another section (section 2611) whose last five words are claimed to deprive surrogates of the power of proving any wills whatever except such as are attested by at least two subscribing witnesses.

It is certainly the chief, if not the exclusive, purpose of the section referred to, to prescribe by what law, foreign or domestic, the validity of the execution of a will shall be -tested. It substantially declares that a will of personal .property shall be deemed sufficiently executed in any of the following cases:

First. Where it has been executed in conformity with the laws of this state.

Second. Where it has been executed without the limits of this state but in some other state of this country, or in the Dominion of Canada, or in the kingdom of Great Britain and Ireland, and according to the laws of the place, of its execution.

Third. Where it has been executed, not in conformity with the laws of this state, but in conformity with the law of its maker’s residence.

Section 2611 is, in the main, a mere recasting of chapter 118 of the Laws of 1876, a statute which was in force from the time of its enactment until the adoption of the Code. It must certainly be admitted on all hands that, during this interval, the personal property will of a decedent who resided at the time of its execution in any state or territory of this country, would have been admissible in a surrogate’s court, despite the non-observance by the testator of the formalities of execution prescribed by our own laws, if he had duly observed the formalities of execution prescribed by the law of his domicil.

Now, there were, during that interval, at least ten of the states and two of the territories of the United States in which holographic wills, that bore the name of no subscribing witness, were entitled to probate. And such is the case to-day. Those states and territories are Arkansas, California, Dakota, Kentucky, Louisiana/"'Mississippi, Montana, North Carolina, Pennsylvania, Tennessee, Texas and Virginia.

If these contestants put a correct interpretation upon section 2611, an unattested holographic will, executed by a resident of any of those localities, must necessarily fail of probate in this court, for the reason that the only provision for probate in that section is a provision that a will may be proved “as prescribed in this article” (article 1 of title 3 of chapter 18), and that in such article, as they claim, no procedure is established for proving testamentary papers unattested by witnesses.

If the latter of these two contentions were strictly correct, it would not, in my judgment, follow that such wills must needs be rejected, unless in article 1 {supra), or elsewhere upon the statute book, there appears some provision which prohibits their probate in surrogates courts. If general jurisdiction in the premises is lodged in these courts, and the legislatures have neglected to point out the precise way in which that jurisdiction can be exercised, the surrogate is at liberty to adopt such modes of procedure as the exigencies of the case demand. This would merely require a resort to the incidental powers with which he is vested .by section 2481 of the Code. Isham v. Gibbons, supra; Pew v. Hastings, 1 Barb. Ch., 452; Brick’s Estate, 15 Abb. Pr., 12; Tompkins v. Moseman, 5 Red., 402; Kohler v. Knapp, 1 Brad., 241; Sipperly v. Baucus, 24 N. Y., 46.

In Seaman v. Duryea (10 Barb., 523), affirmed in the court of appeals (11 N. Y., 324); it was held that, although surrogates courts were courts whose jurisdiction was derived altogether from the statutes, nevertheless “the authority to do certain acts, or to exert a certain degree of power, need not be given in express words. If the authority may be fairly and reasonably inferred from the general language of the statutes, or if it be necessary to accomplish its objects, and to the just and useful exercise of. the •powers expressly given, it may be taken as granted.”

In Campbell v. Logan (2 Brad., 90), Surrogate Bradford said: “ The Revised Statutes define the jurisdiction of the surrogate and direct its exercise ‘ in the cases and in the manner prescribed by the statutes of the state,’ but the power to take the proof of wills being given generally, the mode of its exercise in a case not provided for by statute must be regulated by the court in the exercise of a sound discretion, according to the peculiar circumstances of each particular case.”

But not only is it true that no statute forbids the surrogate to admit to probate an unattested will of personal property executed in accordance with the law of the testator’s domicil; but it issftlso true that the procedure established by article 1, supra, does not pretend to relate exclusively to wills that have subscribing witnesses. Some of the provisions of that article, for example, sections 2618, 2619 and 2620, especially concern wills of that description, and prescribe under what circumstances subscribing witnesses must be examined, and under what circumstances their examination may be dispensed with. But other provisions of the article are broad enough to include every species of will covered by the terms of section 2611.

Section 2614 declares the requirements of the petition for probate. It contains no intimation of a limitation to-attested wills.

Section 2622 establishes as the only prerequisite for the admission of any will described in section 2611 that the surrorogate shall " inquire particularly into all the facts and circumstances and be satisfied with the genuineness of the will and the validity of its execution.”

Section 2623 provides that “if it appears to the surrogate that the will was duly executed, and that the testator was in all respects competent to make it, and was not under restraint, it must be admitted to probate.”

I am of the opinion that neither of the objections of these respondents is well taken. They must, therefore, be overruled.


author: Teller, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Thomas Dunn, et al., as Administrators of Thomas Dunn, Deceased.

      (Surrogate’s Court Cayuga County,

      Filed May, 1887.)

    1. Gift inter twos of policy of life insurance—Proof of.
    The mother and father of decedent executed a mortgage on a certain farm which they held as tenants in common. This mortgage was given as-security for a bond on which $3,000 was raised and given 1o the decedent to help him start in business. Within a few days decedent had his life insured for $3,000. There was evidence tending to show that when he obtained the insurance he said he was going to give it to his mother and asked to have a blank for assigning- it obtained. That he gave it to his mother saying it was a gift, and it was in her possession at his death. Held, there was sufficient evidence to hold that it was a gift inter vinos.

    2. Surrogate—Power to investigate disputed claim, etc.
    Surrogates have not the power to investigate the merits of disputed claims against estates. They have, however, the right to determine-whether administrators have been guilty of negligence in getting together the property belonging to an estate, and whether they have failed, to collect debts which they ought to have collected and whether they have acted prudently.
    3. Same—When administrator not compelled to litigate a claim.
    . Where it appears that the administrators have acted in good faith upon the advice of able counsel and are of the opinion that a claim is not recoverable, the administrators will not be charged with the amount of' the claim or compelled to prosecute it.
    4. Administrators’ right to money in bank—When bank can retain it.
    The intestate, prior to his death, directed the bank where he had deposits to apply the amount he then had on deposit toward the payment of certain notes held by the bank, but not then due. Held, that the-amount not being sufficient to pay the said notes the bank could not be compelled to pay the money over to the administrators nor could they be sur-charged with the amount.
    5. Same—When bank cannot retain it.
    There was a deposit made subsequent to said conversation and direction and not drawn out. Held, that the administrators were entitled to recover-the amount of said la^-t deposit from the bank. That the bank could not retain it to pay the said notes when they became due.
    6. Auctioneer’s fees—How much administrator can pay—Rev. Stat.,. (7th ed.) 1275, § 23.
    An administrator should not pay an auctioneer more than two and a half per cent of amount of the sales as commissions for selling, see Rev. Stat. (7th ed.) 1275, § 23.
    7. Attorneys—Rule as to employment by administrator.
    The administrator should adopt the same business rules in dealing with his attorney that individuals do in their private affairs.

      D. L. Hurlbut, for adm’rs; Fred E. Storke, special guardian; Charles M. Baker, for certain creditors; James Lyon, for Catherine Dunn.
   Teller, S.

The principal questions raised by the objections or answers to the account in this proceeding is whether the account should be surcharged with the amount of an insurance upon the life of the decedent, paid by the insurer upon a policy issued to the decedent a short time before his death, upon which but one- payment of premium had been made. The money was paid by the insurance company upon the joint receipt of these administrators and Mrs. Catherine Dunn, who claims to own the money by virtue of a gift inter vivos of the insurance policy to her from the deceased, made on the 20th day of July, 1885. There was no assignment in writing of the policy. A short time before the policy was issued, the deceased had received $3,000, to be used in his business, which money was raised in the following manner: A bond was made by the deceased and his father, Thomas Dunn, one of the present administrators, and delivered to the party who loaned the money; to secure the payment of the bond a mortgage was executed and delivered by said Thomas Dunn and his said wife Catherine Dunn (the mother of the deceased), which mortgage was for the amount of the loan, and was- upon a farm owned by said Thomas and Catherine (husband and wife), as tenants in common. It is claimed by the contestants that the effect of the transfer to Catherine Dunn by the decedent of the insurance policy, was to furnish security against the obligation or liability which she had incurred for his benefit. The amounts are the same; the transactions are concurrent in time. There is evidence of declarations of Mrs. Dunn to that effect, and at the time of the receipting for the money .the parties characterized the transfer from the decedent as one “for value.”

It is further contended that if the delivery by the decedent was for the purpose of giving security merely, it became satisfied and of no further force. Then a statement was afterward made by Thomas Dunn, Sr., to certain creditors that the $3,000 was given to Thomas “to be used at the risk of the business.” In answer to the claim that the insurance policy was given by the decedent to his mother; it is also claimed by the contestants that the decedent was at the time owing more than the amount of his assets, and as to the creditors, the alleged gift was fraudulent within the statute.

The administrators concede the claim of Mrs. Dunn; but as one is her husband and the other the chosen friend of the family, who, before his appointment, was in this very matter confessedly acting for and in the interest of the claimant, it is incumbent upon the court to scrutinize the evidence carefully, to ascertain the exact agreement between the parties, independently of the views taken by the accounting parties. The fact that the administrators signed the receipt to the insurance company with Mrs. Dunn, is quite satisfactorily explained in the necessities of the case. The company would not make payment without a receipt from the administrators, or the judgment of a court. The receipt was given under advice of counsel. The moneys were deposited in the bank to await the decree of a court of competent jurisdiction; all was done, and properly, for the protection of the respective parties. The evidence to support a gift of the insurance policy to Mrs. Dunn is found in the testimony of Thomas Dunn, Henry S. Munson, and Nelson Beardsley, and in the fact that the policy, at the time of her son’s death, was found in the possession of the claimant.

The signing of the mortgage by Mrs. Dunn, was required to raise the money. Thomas Dunn testifies he gave his son the $3,000, the proceeds of the bond and mortgage. He says the boy then said to his mother, “You’ve made me a nice present; I have my life insured and I’ll make you a present of the policy in a few days.” Afterwards he and his wife met the boy at the hotel where he boarded. His son then took the policy from his coat pocket and handed it to his mother and said: “ Mother, here is that policy that I promised you.” She took it and brought it home. The policy was dated July 10, 1885.

Henry S. Munson who acted for the company in taking Dunn’s application for insurance says; He said at the time I, took the insurance, he desired to give it to his mother. This was July 9th. I told him to make an assignment of it. He said he wanted me to get some blanks for assignment. I sent some to our agent at Auburn. Dunn did not say anything about assigning the policy to his parents for a loan, to my recollection. Nelson Beardsley testifies that he heard a conversation the day the bond and mortgage were given in regard to the insurance policy. His impression is the decedent told his mother to keep the policy for her security. He remembers he gave it to her for her benefit. He thinks the son handed the policy at that time to his mother. They were talking some little time. He would not undertake to say whether he said as security or I’ll give you that. The parents did it to help him start in business. The evidence given by these v itnesses all supports the theory that the decedent intended to and did deliver the policy of insurance to his mother for her benefit. That it was a voluntary act on his part and not made by either of the parents a condition of the payment to him of the proceeds of the bond and mortgage. The mother was not a party to the bond, but by executing the mortgage assumed a liability which might be wholly collected out of her sole property.

The youth of her son, and improbability that he would die before she did, may be considered in estimating the influence upon her mind of the benefit to her of the insurance as a motive to her of executing the mortgage. He was her only child. If we assume she was not induced by .the promise of an assignment .of the policy to sign the mortgage it cannot be of much consequence whether the son considered that he had received value for the transfer of his property in the insurance. A statement that it was for value received or given to secure against possible loss would not alter the nature of the transaction or take away the character of the gift, if the transfer was voluntary and absolute. Van Deusen v. Rowley, 8 N. Y., 358. There is other evidence given to support the claim of a gift to which it is perhaps proper to advert, but which cannot in the condition of the evidence have much weight.

A page from the diary of the deceased, under oate of July 20, 1885, was given in evidence. One witness testifies that the diary is in the handwriting of the deceased. The following words are fqund upon the page in evidence. “Father, mother at the hotel after dinner, and i gave her life insurance paper, $3,000.” The words “mother” and “her” are written upon erasures and the pronoun “i” is-evidently inserted with a different pencil and in a different hand from the other writing. The witness who testifies-to the handwriting says: I should think those two words-“mother” and “her” are in Thomas Dunn’s handwriting. An examination of the writing and comparison with, the rest of the page leaves much doubt as to those words-being written by the same person who wrote the balance of the page. The terminal “r” in “her” is unlike that in any other word. The pronoun I in every other case is-properly written as a capital letter. Aside from this evi-' dence, I think all the testimony goes to prove the delivery of the insurance policy to Mrs. Dunn was in pursuance of a. gift, and it must be so held. It is contended that a gift cannot be upheld for the reason that its effect would be to-. hinder and delay his creditors, and therefore void or voidable for fraud. If this court were at liberty to consider the question, it does not seem that the facts would warrant the inference of fraud. The evidence does not show that the-lease taken by the intestate was worth less at the time of the gift than he had contracted to pay. It certainly does not appear tf t he so considered it. He is shown to have been indebted upon other demands in amount not exceeding $1,100. He had the $3,000 given him by his parents which was applicable to his indebtedness, and if any fraudulent purpose existed it must have related to obligations.

The gift was made with the knowledge and tacit consent of Mr. Beardsley, who made the $3,000 loan, and of Thomas Dunn, who had made himself responsible for its repayment. But can this court at this time determine the question of fraud? This is an accounting by an administrator as to the application of the personal property of an intestate. It does not appear in this proceeding that the decedent left no real estate to which hi: creditors may resort for satisfaction of their claims. A court of equity would not entertain an action to set aside the transfer upon the ground of fraud when no judgment has been obtained upon the demand. Adee v. Bigler, 81 N. Y., 349; 87 id., 585. Only after exhausting all legal remedies will a court of equity lend its aid to discover and apply the debtor’s property. The mere fact that a transfer of property was voluntary and without consideration is not sufficient evidence that it was fraudulent against creditors. Genesee River National Bank v. Mead, 92 N. Y., 637. In this case it was sought to set aside an assignment of a policy of insurance upon the life of' decedent, which assignment had been made to the person named as executor in decedent’s will. The court of appeals affirmed the decision of the lower court upon the ground that the evidence was not sufficient to constrain the court to find that the testator was insolvent at the time of the-assignment, or that it was made with intent to hinder, delay or defraud creditors. . The court below, fourth.department (13 Weekly Digest, 356), placed its decision upon the ground that a simple contract creditor, or one who has not exhausted his remedy at law, cannot maintain an action to set aside a transfer alleged to be fraudulent and void as against creditors. It is submitted by the contestants that the agreement in writing in evidence between the administrators Catherine Dunn, William H. Seward & Co. with regard to the possession of the moneys received upon the insurance, gives this court jurisdiction to determine the question of fraud in the transfer of the policy from the intestate to his mother. The language of the agreement in this behalf is, “but it is expressly agreed that in the event of the making of a decree or order by any court of competent jurisdiction ordering, adjudging or decreeing that the amount of said policy or the avails thereof constitute a part of the assets of said estate, then and in that case, the said money so deposited in trust as aforesaid, and the accumulations thereof, shall be paid to the said Hiram W. Babcock, as administrator, etc.” As to what was meant by the parties by a court of competent jurisdiction, or whether that was intended to be left a mooted question, does not satisfactorily appear; and so far as the authority of this court to pass upon the question of fraud is concerned, I hardly see how the agreement alters the case. Surrogates have not the power to investigate the merits of disputed claims against estates.

They have, however, the right to determine whether administrators have been guilty of negligence in getting together the property belonging to an estate, and whether they have failed to collect debts which they ought to have collected, and to decide whether they have acted prudently upon the information given in deciding whether certain demands or claims are collectible by legal proceedings. It appearing that the administrators have acted in good faith, upon the advise of able counsel, and are of the opinion that a claim is not recoverable, the evidence showing, as in this case, that an action in another court would probably result adversely, the court ought not to charge the administrators with the amount of the claim, or compel them to pursue a course which might, without benefit to the parties in interest, further deplete the estate by costs and expenses of litigation. The account, for these reasons, cannot be surcharged with the amount paid upon insurance. Secondly. It is claimed that the account should be surcharged with the sum of $307.43, which the deceased had on deposit at the First National Bank of Auburn, at the time of his death. The administrators submit that the bank cannot be compelled to pay this amount, or any part of it, for the reason that they held notes signed by the decedent, exceeding in amount the balance of his deposit, and that a short time before his death he had directed the cashier of the bank to apply this amount upon the notes.

The notes were not due at the time of Thomas Dunn’o death, and without express direction to make such application, the bank would have had no right to do so. There was no equitable right of set-off which the court would enforce in an action brought against the bank for the amount of deposit. The evidence of Mr. O’Brien, however, is positive in regard to the direction given by the deceased as to the application of the money on deposit. He says: “We talked about the balance and in regard to closing up the account.” “ He said he was about closing out his business; he wanted the Rubier note paid, and the balance endorsed upon the $500 note.” “I told him that it would be done.” This conversation was a day or two before Dunn died; but it is not proven to have been prior to the last deposit of $190, which was made September twenty-fifth, the day before he died. It cannot be held to have been included in the agreement, and there being no authority in the bank officers to apply this deposit upon the notes not due, the administrators must be charged with that amount ($190). The witness, upon cross-examination, testifies that an action was brought upon the note since Thomas Dunn’s death, and it is agreed that this is evidence to show that the bank, at that time, did not consider the bank deposit as applied upon the note. It does not appear whether it whs so treated in the action, and nothing positive appears to vary the evidence of the agreement, and it must be held that the administrators, acting upon the same evidence here presented, are justified in taking no further action with regard to balance of the bank account.

The reason the courts have refused to allow set-offs of demands not due is, that it would have the effect to alter the agreement of the parties. Here the agreement of the parties is carried out. The contestants claim the administrators have been extravagant in their allowance of compensation to attorneys and others who assisted in the sale of property. While it is the desire of the court to compel reasonable economy in the administration of estates, it must be remembered that this case has been exceptional in the difficulties involved in disposing of the property of the intestate. It consisted of a stock of goods in a store lately opened, and involved the disposal of a lease for five years in which the decedent had obligated himself to pay. It was held in the case of Bradley v. Angel, executor, etc. (3 N. Y., 475) that a court of equity would not enforce a debt not due as a set-off against a demand of an insolvent party, although the circumstances being reversed the court would grant the relief. Herein was a bill filed by certain parties holding notes not due against a person who had died insolvent.

It was alleged that there was an agreement between the plaintiff and the decedent that the goods they should purchase of him should be applied as payment upon the notes. This allegation was denied; but it was alleged by the defendant that at the close of every six months the plaintiffs should execute drafts for balance due from them to decedent. The court says: When a debt is due from an insolvent debtor the right of a creditor to payment is absolute. If the latter holds a demand against his creditor not due, he has no right to retain it as an investment. * * By allowing a set-off in this case the executor would be deprived of a legal right secured to the testator by contract and the complainants would obtain payment of their debt before it became due, and to the prejudice of other creditors of the. decedent.

In the case of Myers v. Davis (22 N. Y., 489) it was held that until a demand becomes mature, a set-off may be defeated by the assignment of the claim of the opposite party, though the latter be insolvent and his demand has not become payable when assigned.

In the case of Newcomb, as receiver, v. Almy (96 N. Y., 308) it was held that the plaintiff, as receiver of an insurance company, was entitled to recover upon notes of defendant and that defendant could not off-set the reserve value of policies not due. A court of equity will not interfere to set off an equitable claim against a legal debt without some further equitable grounds.

A charge is made of $467.05, paid Fred M. Smith, for services connected with the sale of the stock of goods, one item of which is “ for making sale of stock and fixtures, $5,741.22, at five per cent., $287.05.” The balance of the charges in their bill, under the circumstances proven, would not seem to be unreasonable in amount, as the item specified relates to services as auctioneer. I think the administrators ought to have limited the charge to the compensation allowed by the statute. (R S., [7th ed.], 1275, § 23), two and a half per cent, on the amount of the sales. There must therefore be deducted from this bill the sum of $143.52. I see no good reason for charging the estate with two separate attorney’s, bills in the suit of Galland against them, accounting parties, and the charge of sixty-five dollars therefore will be disallowed.

The expense of making an inventory seems large, but it does not appear to have been unnecessarily so, except the one item of a copy of inventory. This appears to be charged for at ten cents a folio, counting figures as words. As it is nearly all figures, I think five dollars an ample amount to allow, and as the attorney to whom the amount was paid was present, assisting in the taking of the inventory at an additional expense to the estate, ten dollars may be deducted from this charge. Ho objection is made to the attorney’s bill for services rendered for the administrators, and no positive evidence has been given to show that it is unreasonable. It is difficult for the court to know, merely from the items of such a bill, whether the services have been necessarily employed, and in such cases opposing attorneys rarely assist the court by contesting the claim. Items of charges in connection with the taking of the inventory and upon the sale, as well as the employment of two attornies to defend the Galland suit, quite forcibly suggests that the administrators have been somewhat more extravagant in this regard than they would have been if the compensation were to come from their private resources instead of the moneys belonging to the creditors. Suffice it to say, if executors and administrators would adopt the same business rules in dealing with their attornies that individuals do in their private affairs, much ground of criticism might be avoided; more retainers would probably be the result, and the court would often be relieved of much embarrassment due to Lhe attempt of parties to transact their own law business through the agency of surrogates and judges.

As agreed by the administrators, upon the hearing, the claim of Lefevre N. Rosa against the estate, will be reduced one-half. In all other respects the account is allowed, and a decree may be prepared accordingly, costs to be taxed upon notice to the parties who have appeared


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    In the Estate of Nathaniel C. Cowdrey, Dec’d.

      (Surrogates Court, New York County,

      Filed May 18, 1887.)

    1. Decedent’s estate—Petition by creditor for payment of debt AGAINST.
    A petitioner alleged herself to he a creditor of the testator and asked for an order directing his executrix to render an account and pay her claim against the estate. In the petition she averred that she had caused the claim to he presented for payment and that the executrix had admitted it. The executrix by a verified answer denied that she had admitted it and insisted that the claim was illegal and invalid and made certain statements putting those matters in doubt. Held, that the dispute as to whether or not the claim had been admitted, was a dispute as to its validity and legality and that the petition for its payment must therefore be dismissed-.
    2. Same—Accounting by executrix—When wild be ordered.

      Held, that eighteen months having elapsed since the executrix had obtained letters testamentary she must be directed to account.

      Held, that the fact that the petitioner’s claim was in dispute was no ground for denying her application for an accounting.

      Seward, Da Costa and Guthrie, for petitioner; Arthur C. Butts, for app’lt.
   Rollins, S.

The petitioner alleges herself to be a creditor of this testator, and asks for an order directing his executrix to render an account and to pay her claim against this estate, amounting, with interest, to over $10,000. She avers in her petition that she caused this claim to be presented to the executrix for payment on December 2, 1885, and that the executrix did not dispute the same, but, on the contrary, admitted it.

The respondent protests, by a duly verified answer, thaf" she made no such admission, insists that the claim is invalid. and illegal, and makes certain statements under oath which show that its validity and legality are doubtful.

Does the interposition of this answer necessitate the dismissal of the petition so far as the petition asks for the payment of money ?

If it were conceded that the respondent had heretofore ■formally admitted the claim which she now assails, or if such an admission were established by uncontroverted evidence, I should be justified in holding that such claim is no longer open to dispute. Lambert v. Craft, 98 N. Y., 342. It was held in that case that where an executor or administrator admits a claim, or fails to reject it after its presentation and after reasonable opportunity for examination as to its validity and fairness, it acquires the character of a liquidated and undisputed indebtednes against his decedent’s estate. This decision strictly relates to such claims only as are presented pending the publication of notice to creditors or after such publication has ceased; and the court, referring to the burden imposed by the short Statute of Limitations upon a decedent’s creditors, declares that the scheme for the speedy settlement of estates of deceased persons would be imperfect if it did not secure to the creditor some corresponding advantage.

But while the case at bar differs from that of Lambert v. Craft, in the fact that the occasion of the presentation of the claim here in controversy and the various occasions when it is alleged to have been admitted by this respondent, were all prior to the entry of the order for publication of notice to creditors, I do not regard this difference as important, for section 1822 of the Code, which declares the circumstances under which the “short statute” may be put in operation was amended in 1882 (Laws 1882, chap. 399), and in all cases where a publication is had, that statute now runs against claims presented before such publication as well as against claims presented subsequently, go far therefore as the decision in Lambert v. Craft is based upon the reciprocal rights and duties of a decedent’s creditors and the representative of his estate, it is fully applicable to the present situation.

But it is not decisive of this case, for the reason that the respondent herein has, confronted the petitioner’s claim with a verified answer which serves to oust the surrogate of jurisdiction. A dispute as to whether that claim has or has not been admitted is a dispute about its legality, and the petition for its payment must therefore be dismissed. Hurlburt v. Durant, 88 N. Y., 121.

Eighteen months have now elapsed since the respondent obtained letters testamentary, ghe must be directed to account.

The fact that the petitioner’s claim is in dispute is no ground for denying her application for an accounting. Schmidt v. Heusner, 4 Dem., 273.


text:
    In the Estate of John F. Delaplaine, Dec’d.

      (Surrogate’s Court, New York County,

      Filed April 30, 1887.)

    1. Executors retain power of—Joint deposit in case of disagreement—Code Civ. Pro., § 2602.
    It is provided by Code Civil Procedure, § 2602 that in case of disagreement between two or more executors of an estate respecting the custody of. its money or its property, the surrogate upon the application of one of such executors may in his discretion, make an order directing that any property of the estate be deposited in a safe place, in the joint custody of the executors or subject to their joint order, and that the money of the estate be deposited in a specified bank or trust company to their joint credit, and to be; drawn out upon their joint order. Held, That the fact that one executor qualified for office at an earlier date than his associate and came into possession of certain funds of the estate gave him no superior right to the custody of the same.
    2. Same—Right to earn commissions—Code Civ. Pro. § 2736.

      Held, That it was the right of one duly appointed executor to render services to the estate in order to entitle himself to commissions under Code' Civil Procedure, § 2736.
    3. Same—When joint deposit will be ordered.

      Held, That in case of the disagreement of executors with regard to the management of the estate under their charge, there being no circumstances justifying distrust of either, a deposit of the property should be ordered, subject to their joint control.
    4. Same—Payment for legal services made subject to risk of dis-allowance.

      Held, That payments made by any executor to counsel for services were made subject to the risk of disallowance of any claim he might make for credit in that regard upon his accounting.

      Billings & Cardozo, for James Cruikshank, executor; J. A. Walsh, for Talbot Chambers, executor.
   Rollins, S.

Section 2602 of the Code of Civil Procedure provides, among other things, that where there is a disagreement between two or more executors of an estate, respecting the custody of its money or of its property, the surrogate, upon the application of one of such executors, “may, in his discretion, make an order directing that any property of the estate be deposited in a safe place, in the joint custody of the executors, or subject to their joint order, and that the money of the estate be deposited in a specified bank or trust company to their joint credit, and to be drawn out upon their joint order.”

The money and property of the estate of this testator are now under the exclusive control of one of its two executors, Mr. James Cruikshank. His co-executor, Mr. Talbot W. Chambers, seeks, by the present proceeding, to obtain an order directing that such money be deposited to the joint credit of himself and his associate, and that such property, other than money, be placed in the joint custody of the two, or subject to their joint order

The testator’s will was admitted to probate in 1885. In. March, 1886, letters testamentary were issued to the respondent. The petitione..- did not qualify as executor until September, 1886.

Meanwhile the respondent had taken possession of the personal property of the estate, amounting in value to over $125,000, and he had commenced an action for the construction of the testator’s will, in which action the counsel who represent him in the present proceeding had appeared in his behalf.

At some time prior to November 29th, 1886, the petitioner called upon the respondent for conference in the affairs of the estate, and communicated to him the fact that he, the petitioner, had retained counsel to aid in its administration. The respondent then protested that the counsel, whose services he had.himself secured prior to the petitioner’s qualification as executor, were equal to the satisfactory performance of such legal services as the best interests of the estate would probably require. Subsequent to this interview, and on November 29th, the petitioner wrote the respondent, saying that, in view of the importance of the trusts committed to their joint care, and the extent of the property concerned, he “should feel safer” if his own attorney, in in whom he had full confidence, should be employed as one of the counsel of the estate.

On November 30th this attorney addressed a letter to the-respondent, asking in the petitioner’s behalf the payment of a retaining fee of $1,000. A few days later the respondent replied to this letter as follows: “I respectflly decline to pay to you the sum named, or any part thereof, for the simple reason that .your appointment was made without my knowledge or assent, or that of the counsel of the estate appointed be me at the time I was the sole qualified, and acting executor.”

On December 9th the petitioner again wrote nis co-executor, requesting payment of the sum of $1,200 “to defray expenses of administration.” The respondent, replying to this letter on December 14th, said : “As the sum for which you ask would be chargeable against me as executor, I beg to inquire the nature of the expenses for which the payment is to be made. Upon receiving this information I will confer with the counsel for the estate, and promptly act upon his advice in the matter.”

On December seventeen the petitioner answered to the effect that the sum for which he asked was to be expended in payment of his counsel; that his course in retaining such counsel was “ an act of prudence,” and that he was em-with the to at the ■charge of the estate, such legal services as its interest might seem to demand.

In a letter dated December twenty-two, the respondent declined to accede to the petitioner’s request. On January 10, 1887, the petitioner proposed in writing to the respondent that the assets in the latter’s hands be placed under their joint control. By letter of January seventeen this proposition was rejected. On January twenty the petitioner commenced the present proceeding.

Whatever doubts might have existed before the adoption of the Code of Civil Procedure respecting the authority of the surrogate to make such an order as is here applied for, such authority is now expressly conferred by the above-quoted provisions of section 2602. That section was evidently suggested to the Code commissioners by decisions theretofore rendered in Wood v. Brown (34 N. Y., 337), and in Burt v. Burt (41 N. Y., 46).

In Wood v. Brown the court of appeals had affirmed a judgment of the supreme court, by which it had been ordered, in an action between co-executors who had disagreed respecting the custody of estate funds, that such funds should be placed in a specified depository subject to the joint order of the plaintiff and the defendant.

In Burt v. Burt, on the other hand, the court of appeals, upon a different state of facts, had sustained the supreme court in its reversal of a judgment, directing, in an action brought by one of two executors against his associate, a joint deposit and joint custody of the assets of their testator’s estate.

Woodruff, J., who pronounced the opinion of the court in the latter of these cases, declared that the decision in the .former rested solely upon the ground that the conduct of the defendant executor was such as to jeopard the interests of the beneficiaries under the will.

• In Burt v. Burt the special relief sought by the plaintiff was the appointment of a receiver who should take possession of all the assets of a testator’s estate, and practically expel from office the persons whom the testator had selected as his executors. The referee, before whom the cause had been tried, had pronounced against the plaintiff’s demand for a receiver, but under a claim for general relief, had found that the assets concerned in the litigation should be deposited in a specified bank, subject to the plaintiff’s and the defendant’s joint control.

The case was like the case at bar, and unlike that of Wood v. Brown, in the circumstance that no question was made respecting the safety of the fund involved or the responsibility of its custodian It differed from the case at bar in the circumstance that the defendant executor had taken possession of such fund after his complaining associate had obtained letters testamentary and with such associate’s knowledge and acquiescence.

In commenting upon these circumstances Judge Wood-ruff said: “Both of the executors could not have the actual manual keeping of this box of securities, each in his-own possession. The defendant had the actual possession in the first instance without objection. He had as much right to retain that possession as the plaintiff had to demand it. The claim that the plaintiff was entitled to take it because he was co-executor, ex vi termini admits that the defendant would have been immediately entitled to take it again.

It is a well known doctrine of the law that where there are two or more executors of an estate “they are regarded but as one person representing the testator, and, therefore, the acts done by any one of them, which relate either to the delivery, gift, sale, payment, possession or release of the testator’s goods, are deemed the acts of all; for they have a joint and entire authority.” One of them is as much entitled as any of the others, in the absence of specific directions to the contrary, either in the will of their testator, or ■in the lawful order, judgment or decree of a competent court, to collect the personal estate and to hold it in his own possession, apart from the control of his associates. Murray v. Blatchford, 1 Wend., 583, 616; Hertell v. Bogert, 9 Paige, 52; Douglass v. Satterlee, 11 Johns., 16; Sutherland v. Brush, 7 Johns. Ch., 17; Brennan v. Lane, 4 Dem., 322; Hall v. Carter, 8 Ga., 388; Wheeler v. Wheeler, 9 Cow., 34.

But it seems to me that in the enactment of the provision upon which the present application is based, it was the express purpose of the legislature to modify the rule cf law, which, but for that provision, might make such an application, either to the supreme court or to the surrogate, ineffectual.

In Burt v. Burt the court said that, as the relations of the plaintiff executor and the defendant executor had ceased to be amicable, “ it would have been altogether wise and suitable ” if they had of their own motion made joint deposit of the funds which the testator had confided to their charge.

This suggests what seems to me the most satisfactory test by which to determine, in any given case, whether the discretionary authority, now expressly conferred upon the surrogate by section 2602 of the Code, should or should not be exercised. The occasion for enforcing a joint custody is found to have arisen, whenever the circumstances are such that joint custody, pursuant to an agreement of the executors themselves, would commend itself to the surrogats as suitable and wise.

Now, there is nothing in the will of this testator indicating that he reposed greater trust and confidence in one of the parties to this proceeding than in the other; there is-, nothing in the papers before me tending to show that it would impair the security of the property of the estate to-, take it from the sole custody of the respondent and place it in the joint custody of himself and his associate. For aught that appears they can meet together without inconvenience whenever conference or combined action shall be-necessary or desirable. It is not shown that the interests of the estate would be prejudiced by requiring a joint, custody of its assets. And there are certain considerations, which seem to make such joint custody desirable.

By section 2136 of the Code of Civil Procedure, the ex-ecutorial service that may be rendered in the administration of this estate, if its value above debts shall exceed $100,000, will be compensated by two full commissions. These commissions must be apportioned between the executors “according to the services rendered by them respectively.” If this petitioner is willing and competent to perform his full share of the duty confided to him by the will, it is hardly just, unless it is unavoidable, to sustain the respondent, in a contention which will practically secure to him, besides, the compensation that he would have been entitled to claim if the testator had named him as sole executor, a like compensation for excluding his co-executor from sharing in the administration.

The affidavits and the brief submitted on behalf of the respondent, disclose that he has what seems to me to be a mistaken notion as to the respective rights of the petitioner and himself in the employment of counsel. The counsel whom; he has retained are. repeatedly called “counsel for the estate,” as distinguished from counsel employed by the petioning executor. It is doubtless true that where one of several executors, who has alone qualified, has employed, lawyers of learning and ability to represent the estate of his testator in the courts, the claim of another executor,, subsequently qualifying, to be reimbursed out of such estate for moneys expended in securing additional counsel, should not be allowed upon an accounting without strong-evidence in its support; but in such a case counsel retained by the executor first qualifying are no more to be regarded as “ counsel for the estate ” than are counsel retained by such executor’s associate.

Whether in the present case the petitioning executor has acted prudently and properly in calling additional counsel, to his aid, need not now be considered. If the order to be entered on this decision shall enable him to compensate such counsel out of estate funds, he will, of course, do so at the risk of a disallowance of any claim he may make for credit in that regard upon his accounting. His application, except as respects the rents of the testator’s real property, is granted; as to such rents it is denied.


author: Lott, S.

text:
    Matter of Estate of Hannah Enston, Deceased.

      (Surrogate's Court, Kings County,

      Filed May 22, 1887.)

    1. Collateral inheritance tax—What property subject to.
    It was intended by chapter 483, Laws of 1885. to subject to taxation all property within this st te passing by will (to other than certain excepted persons) without regard to the residence of the ancestor.
    2. Same.
    Hannah Enston died a resident of the city of Philadelphia, leaving assets in the county of Kings. The original will was admitted to probate in the surrogate’s court of Kings county. Held,, that both real and personal property within this state, passing by the will of the testatrix, is subject to the tax.

      J. Mareau, for ex’rs; James W. Ridgway, district attorney, for the county treasurer.
   Lott, S.

The tax sought to be recovered in this matter is upon property within this state, passing by will, and, therefore> is within the terms of the act, chapter 483, Laws of 1885.

While the grammer of section 1 of that act is questionable, yet I think the meaning of the law is not doubtful. If it was, then in view of the policy of encouraging the migration of foreign capital into this state (Williams v. The Board of Supervisors, 78 N. Y., 565), and because taxation may be imposed here and in Pennsylvania upon the same property, the acts in question might, by construction, be limited to embrace only the property of residents of this state passing by will or the intestate laws of this state, but where acts of this character have been restricted by construction the courts have proceeded upon the ground that the legislature had not sufficiently expressed its intention to depart from theretofore well settled rules as to taxation. Thompson v. The Advocate General, 12 Clark & Fennelly, 1; Wallace v. The Attorney General, 1 L. R., Ch. App. 1 U. S. v. Hunnewell, 13 Fed. Rep., 617.

I think it was intended to subject to taxation all property within this state passing by will (to other than certain excepted person) without regard to the residence of the ancestor, ana the provisions of sections 11 and 15 of the act in question support this construction.

It is conceded for the executors that property passing by grant, to take effect at the grantor’s death, is subject to the tax without reference to the residence of the grantor, and that the tax on property so transferred was designed to prevent an evasion of the tax by resort to such conveyances. It would follow if the construction contended for by the executors was allowed, property of a non-resident passing by will would be free of 'tax, while property passing by grant from a non-resident to take effect in possession at the death of the grantor would be liable to taxation.

I am of the opinion that both real and personal property within this state passing by the will of the testatrix are subject to the tax. _


author: Rolhns, S.

text:
    In the Estate of Philip McGovern, Deceased.

      (Surrogate’s Court New York County,

      Filed May 4, 1887).

    1. Will—Probate of—Contest of—Examination of witnesses under Code Civ. Pro., § 2618—Transfer of proceedings to common pleas Code Civ. Pro., § 2547.
    A proceeding for the probate of an instrument purporting to be a will having been transferred into the court of common pleas, under Code Civil Procedure, section 2547, an application was made in the surrogate’s court by the counsel for the contestants for an order requiring the proponents to produce and examine at the time in the court of common pleas certain witnesses, whose testimony was claimed to be material within, the meaning of section 2618, which provides that any party who contests the probate of a will may, by a notice filed with the surrogate at any time before the proofs are closed, require the examination of all the subscribing witnesses to a written will, or of any other witness whose testimony the surrogate may be satisfied is material; in which case all such witnesses who are within the state and competent and able to testify must be so examined. Held, that as regards subscribing witnesses, no order was necessary for their production. That by the act of filing the notice prescribed in Code Civil Procedure, section 2618, a contestant in a probate controversy before the surrogate could prevent the establishment of a will until after the examination of all its subscribing witnesses, if within the state and competent to testify.
    2. Same—Examination of witnesses under Code Crv. Pro., § 2618—Or-der FOR UNNECESSARY.

      Held, that the examination of any person or persons, other than the subscribing witnesses, was prerequisite to probate in the surrogate’s court only when the surrogate might be satisfied as to the materiality of their testimony. That no order was necessary for their production; but that the burden of producing them must fall upon the proponents, because that duty not being imposed by the statute upon the contestants, the will cannot be admitted to probate until their production and examination.
    3. Same—Transfer of probate proceedings to the court of common pleas—Examination of witnesses.

      Held, that the proceeding having been transferred to the court of common pleas, the question as to the materiality of the testimony of the persons whose production as witnesses was sought, must be determined, if at all, by that court.
   Rolhns, S.

A proceeding for the probate of an instrument purporting to be this decedent’s will was lately transferred to the court of common pleas, in accordance with the provisions of section 2547 of the Code of Civil Procedure. Counsel for the contestants now make application in the court for an order requiring the proponents to produce and examine, at the trial in the court of common pleas, certain. witnesses, whose testimony is claimed to be material’* within the meaning of section 2618 of the Code.

That section provides that “any party who contests the-probate of a will may, by a notice filed with the surrogate at any time before the proofs are closed, require the examination of all the subscribing witnesses to a written will or of any other witness whose testimony the surrogate is satisfied may be material; in which case all such witnesses, who are within the state and competent and able to testify, must be so examined.” Here, it will be observed, is a specification of two classes of witnesses; the first class consisting-of subscribing witnesses to the will in controversy, and the second class consisting of persons, not subscribing witnesses, whose testimony may be deemed material by the surrogate.

Now it is plain that as regards subscribing witnesses, no order can ever be necessary for their production. By the very act of filing the notice prescribed in section 2618, a contestant in a probate controversy before the surrogate may effectually prevent the establishment of a will until all its subscribing witness (if within the state and competent to testify) shall have been examined.

The examination of any particular person or persons other than subscribing witnesses, is an essential prerequisite to probate in this court, only when the surrogate is satisfied that the testimony of such witnesses may be materiál. When he has declared himself so satisfied, the witnesses who can give such material testimony must be brought before him and examined, unless they are absent from the-state or incompetent or unable to testify. No order is necessary for the production of such witnesses. The practical burden of producing them must fall, as I held in Hoyt v. Jackson, (2 Dem., 450), upon parties proponent, “not because the statute so declares, for it does not, but because as it fails to impose the duty upon parties contestant, they can rest securely upon the fact that until such witnesses have been produced and examined the will cannot be admitted to probate.”

It follows that the application of the contestants in the case at bar must be denied.

If the probate proceeding were pending to-aay in this court, I could be asked, under section 2618 to determine this question and this only: whether the testimony of the persons whose production as witnesses is here sought may be material; and that question if it is now to be passed upon at all, must be passed upon in the court of common pleas.

As to the applicability or non-applicability of the provisions of section 2618 to the trial in that tribunal of probate controversies transferred -from this, I intimate no opinion.


text:
    In the Estate of Margaret LeComte, Deceased.

      (Surrogate’s Court of New York County,

      Filed May 11, 1887,)

    1. Trustee—Cannot without leave of court purchase trust property.
    A trustee cannot without special leave of the court, purchase the property of his trust, and unless the beneficiary chooses to affirm such a purchase it will be disregarded upon his demand.
    3. Same—What circumstances necessitate the setting aside of such PURCHASE.
    A testatrix left her surviving as her next of kin, residuary legatees and devisees, four daughters, and the children of another daughter, deceased. By the will, two sons-in-law of the testatrix were made her executors, and two unmarried daughters her executrices. All qualified and joined in an account which set forth among other things, that pursuant to a power in the will, they had sold certain real property, and were chargeable with certain specified sums, the proceeds of said sale. This account was judicially settled, the infants being represented by a special guardian. Subsequently, a motion was by him made that the decree settling the account be set aside and vacated, alleging as grounds for such motion that within .a brief period after the accounting parties had conveyed the above mentioned real property, the grantee had conveyed to the four daughters of the testatrix, two of whom were her executrices. Held, That conceding the transactions by the representatives of the deceased to have been in good faith, the formalities of the sale correctly observed, and the purchase price given to have been commensurate with the value of the property, yet if the transfer made by the grantee were made in pursuance of an agreement or understanding between himself and his grantees, the application should be granted
    3. Same—Reference to ascertain circumstances of purchase.
    This latter circumstance being in doubt. Held, That a reference should be ordered to ascertain whether such agreement or understanding actually existed.
   Rollins, S.

This testatrix died in 1879, leaving as her surviving next of kin and as her residuary legatees and devisees, four daughters, and the children of another daughter deceased. Two of her daughters, Matilda and Josephine, were unmarried; of the two others, Jane and Henrietta, the first was the wife of Jules G. Glaentzer, the other the wife of Richard A. Banter.

The testatrix appointed her two sons-in-law executors, and her two unmarried daughters executrices of her estate. All four qualified and joined in an account which was filed in September, 1883. That account set forth, among other things, that the accounting parties, pursuant to the authority given them by the will, had sold to one Joseph Le Comte certain real property of this estate, situated at No. 73 Eighth avenue, and at No. 266 West Thirty-eighth street, in the city of New York, and that they were chargeable with certain specified sums received by them as proceeds of the sale of such property.

. This account was judicially settled and determined by a decree entered on September 11, 1883.

In behalf of two of the three grandchildren of the testatrix interested in the estate, both of whom are infants, I am now asked to vacate and set aside "said decree and to permit the said infants to interpose objections to the accounts as filed, and to investigate the same as if said decree had never been entered.

These infants were represented in the accounting proceeding by a special guardian, but it appears from his affidavit that he was not advised until long after his services had ended, of the fact which lies at the foundation of this motion, viz., that within a brief period after the accounting parties had conveyed the above-named property to Joseph Le Comte, the latter executed a conveyance thereof to the four daughters of the testatrix, two of whom, as had been heretofore stated, were her executrices.

There is much reason to believe that this transfer by Joseph Le Comte was made in pursuance of an agreement of understanding between himself and his grantees.

If I were entirely satisfied that such is the fact, I should feel bound to grant this application, even though it were conceded that the respondents performed their whole duty in giving publicity to the auction sale of the property in question, that the purchase price of such property was commensurate with its value, and that the executors and executrices, in all that they did, acted honestly and in good faith.

The infants, for whom relief is here asked, are, under all the circumstances, in as good a situation to assail the transaction upon which their claim for relief is founded as they were before the entry of the 1883 decree. I cannot doubt that if they had then been able to show that Joseph Le Comte’s purchase was for the personal advantage of the executrices and the wives of the two executors, an objection to the account such as is now sought to be interposed would have been sustained.

The doctrine that a trustee cannot, without special leave of the court, purchase the property of his trust and that unless the beneficiary chooses to affirm such a purchase it will be disregarded upon his demand, is thoroughly well settled. Davoue v. Fanning, 2 John. Ch., 252; Cumberland Coal Co. v. Sherman, 30 Barb., 553; Iddings v. Bruen, 4 Sand., 223; De Caters v. De Chaumont, 3 Paige, 178; Van Epps v. Van Epps, 9 Paige, 237; Ames v. Downing, 1 Brad., 321; Jewett v. Miller, 10 N. Y., 402; Gardner v. Ogden, 22 id , 327; Forbes v. Halsey, 26 id., 53; Conkey v. Bond, 36 id., 427; Terwilliger v. Brown, 44 id., 237; Fulton v. Whitney, 66 id., 548; People v. Building Co., 92 id., 98; Scholle v. Scholle, 101 id., 167; Munson v. Syracuse G. and C. R. R. Co., 103 id., 58.

■ The papers before me leave my mind in doubt as to-whether Joseph Le Qpmte’s purchase was in substance and effect a purchase by decedent’s daughters, and upon this question, therefore, I order a reference before the present motion can be decided.