author: Woods, S.

text:
    Matter of the accounting by Charles J. Buchanan, George M. Wright and Charles McLaren, as executors of the last will of Henry Smith, deceased.

      (Surrogate’s Court of Albany County,

      Filed October 30, 1886.)
    1. Execütoes —Real estate — Equitable conversion.
    _ Where by a will executors are vested with the legal title in real estate and directed to sell and turn the same into money and directions given as to the management and payment of the receipts, it was held, that under the will the real estate was converted into personalty, to be distributed as such.
    2. Same — Sale op real estate by.
    Where real estate of a testator is left in trust to the executors to sell, the sale and conveyance of it to a legatee, together with the acceptance hy the executors of the purchase price and receipting therefor as a portion of the legatee’s share of the estate of the testator, is in legal effect and substance a sale and conveyance of the real estate and the same as if the purchase money had been paid to the executors, and immediately repaid as so much on the portion of the purchaser.
    3. Same — Commission's.
    Heal estate coming into the hands of executors as trustees, and being treated as personalty, and accepted by legatees as such, should be so considered for all purposes, including the estimation of commissions.
    4. Same — Commissions — Where personal estate equals oe exceeds ONE HUNDRED THOUSAND DOLLARS — EACH OP THESE EXECUTORS ENTITLED to pull commissions — Code Civ. Pro., § 2736.
    Where the value of the personal estate of the decedent amounts to one hundred thousand dollars or more over all his debts, each executor or administrator is entitled to the full compensation allowed by law to a sole executor or administrator, unless there are more than three. See Code Civ. Pro., § 2736.
    HeNey Smith died December 1st, 1884. By the first clause of bis will, executed June 19tb, 1882, be gave to bis wife iu lieu of dower, bis homestead, at Cobleskill, during ber widowhood, and thereafter to bis son Henry, and also gave in the same way the library, furniture and property therein, with right to the wife to use up all household stores. By the second clause he gave to his mother during life the use of the. house and lot in Cobleskill, where she resided. The 3rd and the 6th clauses of the will are as follows :—

      Third Clause. To Charles McLaren, George M. Wright and Charles J. Buchanan, all the rest of my property in trust for the following uses, and with the following regulations: — •

      First. They shall not be required to give bail or make an inventory. They shall manage and improve the property and let or sell it as they think best, so as to turn the same into money. They may compromise any matters as they think best, so as to convert all into money as soon as can he to advantage and pay over the proceeds, keeping it well invested in the mean time, as fast as they can do it in view of the payments to be made. They must fay my mother,-dollars a week during her life, and my wife,-dollars a week during her widowhood, and from time to time, as the state of their funds on hand will allow it, to pay the balance to my children in equal parts.

      Sixth Clause. When my wife and mother are dead, the fund required to be kept invested, shall be turned into money or in kind be divided equally amongst all my children, and before that time any income that may hot be needed to pay the sums I have mentioned, or to be invested to bring an income to pay such sums, shall from time to time, as the same may accumulate to warrant it to be paid in equal parts . to such children, but not more than ten dollars a week shall be paid to such children each until my son shall have attained the age of twenty-one years.

      The son, Henry, was twenty-one years of age at his father’s death.
    At the time of his death, testator had, as appears by the executor’s account, $71,942.25 of personal property. Besides the “ homestead,” in Cobleskill, he also owned thirteen parcels of real estate, three in the city of Albany, nine in Schoharie county, and one, the formal title to which he held subject to a defeasance which probably rendered the deed a mortgage. From this last parcel, there was realized on a sale thereof, by consent of the grantor, $6,200.00.
    The other parcels of real estate had, when the executors filed their account, with the exception of the house and lot, No. 7 High-street, in the city of Albany, been sold and conveyed by the executors for $49,087.94.
    Most of these parcels were sold and conveyed after consiclerable negotiations to the three children of Mr. Smith, the executors talcing from the purchasers receipts for the purchase price to apply upon his or her share in the estate of the father. The proceeds of the real and personal estate, at the time the account was filed, amounted to $127,230.19, making over one hundred thousand dollars over all his debts. The real estate, No. 7 High-street, has been sold, and with other property on hand, at the filing of the account, the executors have realized in addition to the sum above stated, $14,935.99.
    Not an item of the account, either of receipts or disbursements, was, in the accounting, challenged by any one; only fifteen dollars ($15) had been paid for counsel fees or expenses, and that to local counsel in a collection case in the country. The elaborate and very voluminous account being thus settled, there remains for consideration only the .question of commissions to the executors and the costs and expenses of the accounting.
    The widow and the mother of Mr. Smith had died before the filing of the executors’ account.

      Nathaniel C. MoaTe, of counsel for executors, and Greorge M. Wright and Charles J. Buchanan, executors in person; J. Shepard Smith, for himself as devisee and legatee of Fanny S. Rich; Norton Chase, for Henry Smith; Kate S. Pierson, a daughter, and Be Witt C. Bow, as executor of Fanny S. Rich, a deceased daughter, in person.
   Woods, S.

The executors claim that under section 2736 of the Code of Procedure they are entitled to three full commissions, to be apportioned among them according to the services rendered by them respectively, and, under section 2562, for their counsel fees and other expenses for settlement of the estate. Their right to three full commissions is challenged by J. Shepard Smith, a devisee and legatee of Fanny S. Rich, a daughter of Mr. Smith, who died subsequently to her father.

Tbe right to the three full commissions claimed depends upon whether the proceeds of the real estate, accounted for with the proceeds of the personalty, are to be considered and treated, on this accounting, as personal estate.

The sales and conveyances of real estate to the children, the acceptance of the purchase price and receipting therefor as a portion of their share of the estate of the father was in legal effect and in substance a sale and conveyance of such real estate and the same as if the purchaser had paid to the executors the purchase money, and the executors had immediately repaid it as so much on the portion of the purchaser. (Pratt v. Foote, 9 N. Y., 463, 468, 10 N. Y., 601; Beach v. Smith, 30 N. Y., 131-2; Wright v. Nostrand, 24 N. Y., Weekly Digest, 418.)

I am of opinion that under the will of the testator the real estate was to be converted into personalty and distributed to his ■children as such. The executors were vested with the legal ■title thereto, they were directed to sell it and “ turn the same into money.” They were to compromise claims, etc., “ so as to ■convert all into money as soon as can be to advantage, and pay •over the proceeds, keeping it well invested in the meantime, as •fast as they can do it, in view of the payments to be made.” After payments to the widow and mother, they are “ to pay the balance to my children in equal parts.” By the sixth clause what is not needed for investment to pay the annuities to the widow and mother is “ from time to time as the same may accumulate to warrant it to be paid in equal parts to such chil-dren,”

Under these provisions, and the authorities as I understand them, this was a conversion of the realty into personalty. Such conversion was in fact and in law, made by the executors and the proceeds of the sales divided as personalty. (Lent v. Howard, 89 N. Y., 172-7; Martin v. Sherman, 2 Sandf. Ch., 341; Power v. Cassidy, 79 N. Y., 602; Matter of Mahan, 32 Hun, 73, affirmed, 98 N. Y., 372; Flanagan v. Flanagan, 8 Abb., N. C., 413; Hatch v. Bassett, 52 N. Y., 369; Phelps v. Pond, 23 N. Y., 69, 71; Fisher v. Banta, 66 N. Y., 468; Hood v. Hood, 85 N. Y., 561; Bogert v. Hertell, 4 Hill, 492,) and is to be considered as personalty from the time of the testator’s death. (Lent v. Howard, supra; Roberts v. Corning, 89 N. Y., 226; Fisher v. Banta, 66 N. Y., 468; Stagg v. Jackson, 1 N. Y., 206; Fish v. Coster, 15 N. Y., Weekly Digest, 482; Kane v. Gott, 24 Wend., 659.) The legal title was in fact vested in the executors and trustees. (Morse v. Morse, 85 N. Y., 53; Tobias v. Ketchum, 32 N. Y., 319; Leggett v. Perkins, 2 N. Y., 297; Vernon v. Vernon, 53 N. Y., 358; Brewster v. Striker, 2 N. Y., 19.) The power of sale conferred on the trustees was absolute and •imperative without discretion, except as to the time and manner ,o£ performing the duty imposed. It was therefore a valid express trust. (Cook v. Platt, 98 N. Y., 38), and tbe power to lease carried with it, and included the power to receive the rents accruing from its execution. (Morse v. Morse, 85 N. Y., 59.)

Even if the real estate were sold under a naked power the executors and trustees were still bound to consider the real estate as personalty and account for the personalty as such. In Lent v. Howard (89 N. Y., 177, supra;) there was no devise to the executors (see Will, page 172), and the executors acted under a simple power of sale. The rents and proceeds of real estate were held to be personal property in their hands, and they were held accountable therefor, (see also Marsh v. Wheeler, 2 Edw. Ch., 157; Bunce v. Vandergrift, 8 Paige, 37; Stagg v. Jackson, 1 N. Y., 206; Hood v. Hood, 85 N. Y., 561; Code Civil Procedure, § 2724, subd. 4.)

The real estate having come into the hands of the trustees, having been treated in all respects as personalty and accepted by the parties in interest as such, it seems clear to me it should be so considered for all purposes including the estimation of the commissions of the trustees.

In Cox v. Schemerhorn (18 Hun, 16), the supreme court in the second department held that where an executor sold real estate subject to mortgages he was entitled to commissions on the whole purchase price including the amount secured to be paid by the mortgages and is not limited to commissions on what remains after deducting the amount of the mortgages therefrom. It is not necessary here to consider whether so much of this case as holds the executor entitled to commissions on sums which the purchaser never pays, and he never receives or disburses, and as to which he never as any authority or liability, is sound or not. The case is clearly an authority that he is entitled to commissions on. what the purchaser pays, the executor receives and disburses. In Baucus v. Stover (24 Hun, 109), it was held in this department, more in accordance with my views of the law where an executor sells subject to a mortgage and neither receives nor pays anything by reason thereof, that where an executor, under a power in the will authorizing a sale for the division of the proceeds, sells real estate subject to mortgages existing thereon, at the time of the testator’s death, or sells the real estate free from the incumbrance, paying off such incum-brance from the proceeds of sale, he is only entitled to commissions upon the amounts actually received for the equity of redemption and cannot charge them also upon the amount of the property sold, (see opinion Bockes, J., page 114; Learned, J. page 115).

It is true this case was'reversed by the court of appeals (89 N. Y., 1), but on an entirely different point, leaving this point under consideration untouched as an adjudication.

In the Matter of Leggett (4 Redfield, 148), Calvin, Surrogate, said (pp. 150-1) : “ It seems to me to be a too narrow construction to hold that section 71, aboye cited, confínes the allowance o£ full commissions to three executors and trustees to such estates as reach $100,000.00 oyer and above debts in. personalty. If commissions are to be allowed as a compensation for services rendered an estate by executors or trustees, whether for the receipt and disbursement of personal assets or the collection of rents and sale of lands, there seems to be no good reason why less should be paid for the latter than the former, as it may very often occur that the performance of the latter is much more laborious and troublesome. Obviously, the statute enlarging the commissions of executors in certain cases was based upon the idea that commissions on an estate of $100,000.00 under the former statute, was too small for the labor and responsibility of its administration, and that such an estate could afford to suitably reward a faithful trustee for its administration.

The provision that it shall amount to that sum, over and above all debts, points directly to this latter reason. That such a statute should not be strictly and literally construed, so as to unreasonably circumscribe its effect, is declared to be the rule in Mann v. Lawrence (3 Bradf. 425). Wagstaff v. Lowerie (23 Barb. 209), Matter of De Peyster (4 Sandf. Ch., 511).

“ These cases hold that trustees are entitled to commissions upon real estate held in trust. I am of opinion that a reasonable construction of the statute in question entitles the executors and trustees to three full commissions.”

In Savage v. Sherman (24 Hun, 307), it was held that “ trustees appointed prior to the passage of chapter 362 of the Laws of 1863, giving not to exceed three commissions to executors when the personal estate amounts to not less than $100,000.00, are Avithin the equity of that statute, and are entitled upon an accounting, had. subsequent to the passage thereof, to the commissions given by it Avhen the value of the estate vested in them, Avhether it consists of real or personal estate, or both, amounts to the sum therein named.” The decision of this case on appeal (87 N. Y., 277,287) did not question this portion of the decision of the supreme court, but on the contrary affirmed it.

In Phœnix v. Livingston (101 N. Y., 451), the fee of the lands vested in the beneficiaries, but the executors under a power of sale sold considerable real estate.

Rapallo, J. said (page 457) : “ Upon all sums of money thus realized and passing through their hands they Avere entitled to commissions; but the unsold lands, at the close of the trust, passed to the possession of the remainder men not through any title derived from the trustees but by force of the original devise.” See also Ward v. Ford, 4 Redfield, 47; Matter of Moffat, 24 Hun, 325.

The testator himself had it in his poAver to determine whether his lands should be personal estate, whether the entire burthen of their care and management should be thrown upon his executors, whether they should be compelled to account for the proceeds, and whether these should be distributed as money among his beneficiaries. If he so chose it was legally personal estate from the time of his death, certainly in fact from the sale and conversion into money.

Having reached a conclusion ‘that the executors and trustees should be allowed three full commissions, it only remains to consider how they should be “ apportioned among them according to the services rendered by them respectively.” Under this provision each should be awarded the proportion thereof which the evidence shows he fairly earned. (Matter of Harris, 4 Dem., 468, 466; Hill v. Nelson, 1 Dem., 357, 862.

This cannot of course be ascertained to a mathematical certainty. The evidence shows that Mr. Buchanan was a lawyer residing at Albany, Mr. Wright a lawyer residing in New-York, and Mr. McLaren a merchant residing in Brooklyn doing business in New-York ; that Mr. Buchanan prepared all the papers and vouchers relative to the estate including the deeds of the real estate ; that he conducted the negotiations for the sale thereof and had the principal charge of such sales ; that he prepared the inventories and in several important matters conducted the negotiations for settlement. That Mr. Wright was frequently at Albany and Schoharie relative to the business of the estate and Mr. McLaren but a few times. It is evident from the situation of the estate and of Mr. Buchanan’s proximity of residence thereto, that the burthen of the labors fell upon him. Upon the whole, I think that three-twelfths of the commissions should be awarded to Mr. McLaren, four-twelfths to Mr. Wright and five-twelfths to Mr. Buchanan. The latter may not thus get a mathematical proportion, according to his services and responsibility, but it approximates justice as near as I can.


source: Caselaw Access Project

author: Coffin S.

license: Public Domain

text:
    Matter of the estate of Sarah M. Davids, deceased.

      (Surrogate’s Court, of Westchester County,

      Filed November, 1886.)
    1. Sale of lands of decedent — Petition foe, undeb Code Civ. Peo. , § 2752.
    Where executors presented a petition with a view to mortgaging, leasing or selling the lands of the testatrix for the payment of her debts, the petition containing all the matters required by Code Civ. Pro., § 2752, and it was ascertained from the will that although the debts and funeral expenses were not charged upon the real estate, yet the will authorizing the sale of the real estate, with the consent of the husband, it was held, that the executor being clothed with the power to sell, and it not appearing affirmatively upon the face of the petition that the consent of the husband was withheld, under the existing circumstances it would be an injustice to the estate to ■grant the petition.

      2. Same — Under power conferred by wile — Disposition of proceeds —Laws op 1837, chap. 460, § 75.
    Under the Laws of-1837, chap. 460, § 75, which appears to he still in force and unrepealed, the proceeds of a sale under the power bestowed by the will, could be brought into court and distributed in the same way as if derived from a sale according to the petition.
    Peter Davids, wbo was tbe husband of the deceased and a legatee under her will, recently hiedan application for a citation requiring Peter T. Davids and Charles W. Johnston, the executors of said will, to show cause why they should not render an account of their proceedings. The citation was duly issued and served, and during the pendency of that matter, the executors have presented a petition with a view to the mortgaging, leasing or selling the real estate of the testatrix for the payment of her debts, by which it appears that the debts and funeral expenses are about $236, and the assets $>25. The will clothed the executors with a power to sell the real estate during the life-time of the husband, on his consenting thereto in writing.

      Edgar K. Brown, for petitioners.
   Coffin S.

All the matters required by section 2752 of the Code, to be set forth in the petition, appear to be properly stated. Section 2754 provides that “where the surrogate is satisfied that all the facts, specified in the last section but one, have been ascertained, as far as they can be upon diligent inquiry, and it appears to him that the debts and funeral expenses, or either, cannot be paid, without resorting (“ doubtless, under the provisions of that Title) “ to the real property, he must issue a citation according to the prayer of the petition.” By looking into the will, it is ascertained that, while the testatrix directs the payment of her debts and funeral expenses, in the usual form, the real estate devised by her is not expressly charged with their payment, and hence, it is claimed, that it may be disposed of in order to pay them, as prescribed by section 2749.

The petition is not required to state the provisions of the will, in this respect, so that it would seem the fact mast be ascertained by the surrogate from other sources. In consulting the will, therefore, the fact is ascertained that the debts and funeral expenses are not so charged, as is above stated. But it is also found that the will contains these provisions:

Fourth. I give devise and bequeath all the rest, residue and remainder of my estate, both real and personal, of what kind and nature soever, to my executors hereinafter named, in trust, to collect the rents, interest and income arising therefrom, and apply the same to the support of my husband, Peter Davids, for and during the term of his natural life, and should the interest, rents and income from my estate, be insufficient for the comfortable support and maintenance of my said husband, then and in such, case I direct my said executors to apply any or all of my estate, if necessary, to his support and maintenance.

Fifth. I hereby authorize and empower my said executors, hereinafter named, if in their judgement it is best, to sell and dispose of any part, or all of my real estate, and give good and sufficient deeds of conveyance therefor, providing, however, such real estate shall not be sold during the life-time of my said husband, without his consent in writing.”

Omitting from present consideration the restriction to the power, as contained in the fifth clause, the question would arise whether the court should order a sale under the fifth Title of the eighteenth chapter of the Code, on the application of the executors, where the debts and funeral expenses were not expressly charged upon the real estate devised and where the executors themselves were clothed with authority to sell. It would seem to be unjust, unreasonable and improper for the court to permit such a proceeding, as it could benefit no one, and would be burthening the estate with expenses-, to the injury of those interested. Why should it confer a power with which the executors have already been clothed by the will ? If they were to sell under that power, they could bring the proceeds into court, under the provisions of chap. 460, § 75, of the Laws of 1837, which appears to be unrepealed and in force; and they would be distributed as if they were derived from such a sale as the petitioners here seek. These considerations warrant the interpretation of the 2754th section tobe that, e converso, if it appear to the surrogate that the debts and funeral expenses can be paid without resorting to the provisions of that title, he shall not issue a triation according to the prayer of the petition.

As to the restriction on the power to sell contained in the will, it does not appear that the husband has refused, or is unwilling, to give his written consent to such sale. That fact should appear affirmatively before any citation can be issued. But, from what has occurred before me, I understand he is not only willing, but anxious, that the real estate in question, should be sold.

In the case of Russell v. Russell, 36 N. Y., 581, to which I am referred by the counsel for the petitioner, the action was ejectment. The executrix was, by the will, clothed with power to sell. Under that power she conveyed some real estate to a creditor of the testator in satisfaction of his claim, when the assets were sufficient to pay all claims. It was held, by a divided court (Davies, Ch. J. and Gbover, J., dissenting) that the power was not well executed, and that the conveyance was void. It was also held that the debts should have been discharged by means of the personal estate, and that the real estate could only be applied to that purpose, upon an order of the surrogate to sell, after the personal estate had been exhausted. Some of the dicta of the learned judge, who delivered the prevailing opinion in that case, would induce a belief that he had overlooked the provisions of the 75th section, above referred to. However that may be, the case was unlike' this, in that there, the assets were sufficient to pay all claims, while here, they are very insufficient. There the transaction was not deemed a sale, as contemplated by the testator, but rather the extinguishing of a debt, while here an actual sale would be in strict accordance with the power conferred. The proceeds could then be brought into court, and, under the provisions of the last named section, the debts and funeral expenses be paid, and the surplus be handed over to the executors, who are the devisees in trust, to enable them to fulfil the duties imposed upon them by the will.

As the power to sell does not carry with it a power to mortgage, and as the petitioners might, in this proceeding, ask for authority to mortgage, it would seem that even such authority should not be given in this case. The petition shows that there are now two mortgages upon the premises devised, given by the testatrix amounting together to six hundred dollars, on which some interest is now due. If a new one should be authorized so far as can be seen, some of the funds realized would be required to be kept in hand to pay the interest to accrue thereon. The rents do not appear to have been sufficient to pay taxes, repairs, insurance and the interest on the subsisting mortgages. Hence, it would not be wise to put a further burthen upon it, when the resources of the estate, outside of the realty, amount to nothing. The estate might thus be made bankrupt, or the interest of all concerned be seriously jeopardized.

It strikes me, under all the circumstances, that the most prudent course for the executors to pursue, is to exercise the power to sell conferred by the will and thus save something for the beneficiaries. They will then be in a position to- comply, with the provision of the will which directs them, in case the rents, etc., are insufficient for the comfortable support and maintenance of the husband, to apply any or all of her estate to that purpose. The loving intention of the testatrix is thus clearly manifested; and the advanced age, feeble health and destitute condition of the surviving husband, are appeals for speedy action, which should not be disregarded.

Application denied.


author: Rollins, S.

text:
    In the estate of David Walker Williams, deceased.

      (Surrogate’s Court, New York County,

      Filed November 3, 1886.)
    1. Executors and Administrators — Ancillary letters — To whom granted — Code of Civil Procedure, §§ 2696, 2697.
    A decedent residing in the State of Tennessee left assets in the county and State of ÍTew York. The administrator of the domicile having applied here for ancillary letters of administration. Held, that the surrogate might, in his discretion, refuse to grant such letters, in view of the fact that certain relatives of the decedent had previously applied to him for letters of administration, and that such applications were pending and undetermined.
    2. Same — When application must be denied — 2 R. S., title 2, chap. 6, §27.
    Where a resident of New York, being a relative of decedent, applies for letters of administration upon such decedent’s estate, the application must he denied if it is opposed by a non-resident relative who resides in the United States and is entitled to priority under § 27, title 2, chap. 6, part 2, Revised Statutes, and is otherwise competent to administer.
   Rollins, S.

This decedent died in June last, at Clarksville, in the State of Tennessee, leaving him surviving no widow, child or father. There are assets of his estate in this county, and applications for authority to administer upon these assets have been made in behalf of three persons, the decedent’s mother, Lucy E. Williams, his half brother, Fielding L. Williams (now temporary administrator), and one Polk G. Johnson of Tennessee, who in July last was appointed principal administrator in that State, and who here seeks to obtain letters ancillary.

I do not agree with the counsel of Mr. Johnson that the Surrogate is bound by the requirements of section 2697 of the Code of Civil Procedure to grant the application of his client. That section simply indicates the person or persons to whom ancillary letters must be issued, if they are issued at all. But upon reference to section 2696, it clearly appears that the Surrogate may decline to grant letters ancillary in case of the pendency of an application made by a relative of the decedent for letters of administration. Two such applications are now pending. The petition of Polk G. Johnson is denied,

Lucy E. Williams, the mother of this decedent, has a claim to principal letters of administration superior to that of any other person. Section 27, tit. 2, chap. 6, part. 2, Rev. Stat. (3 Banks, 7th Ed., 2290), declares that administration in case of intestacy shall be granted to the relatives of the decedent who would be entitled to succeed to his personal estate, if they or any of them will accept the same, in the following order: 1st, to his widow; 2d, to his children; 3d, to his father; 4th, to the mother; 5th, to the brothers. It has been repeatedly held that the withholding of letters of administration from one who, if not for some cause incapacitated, would be entitled in priority under the statute, is never justifiable except in cases where his disqualification is declared by the statute itself (O'Brien v. Neubert, 3 Dem., 156; Coope v. Lowerre, 1 Barb. Ch., 45; Emerson v. Bowers, 14 N.Y., 449).

It is claimed by counsel for Fielding L. Williams that this claim of priority cannot be successfully maintained in behalf of a non-resident. He relies upon section 2662 of the Code of Civil Procedure, which gives the surrogate discretionary authority to appoint an administrator upon the application of a relative of the decedent, even without citation to. nearer relatives who reside without the State.

It is doubtless true that, if in the case at bar the Surrogate had heretofore granted letters to Fielding L. Williams, without notice to Lucy E. Williams, and without opposition on her part, she could not now procure the revocation of such letters upon the ground of her superior title (Matter of Christopher Starr Brewster, Daily Reg., August 25, 1886). But that is not the present situation. The mother and brother of the decedent are simultaneously before the court as rival applicants. The former asserts her prior right to letters. As I cannot find upon the papers before me that she is incompetent, her petition must be granted. Letters may issue accordingly; and pursuant to her request and written consent, Polk Gr. Johnson may be joined with her in the administration.


author: Rollins S.

text:
    Estate of Antonio J. Moderno, deceased.

      (Surrogate's Court, New York County,

      Filed November 3, 1886.)
    Wills — Cohsteuctioe — Charitable bequests — Laws 1860, chapter 360.
    The testator devised all his estate “ with the exception of my real estate in the Island of Madeira, (of which I have made testamentary disposition in accordance with the laws prevailing there,”) to his executors in trust, to pay the income to his wife, and after her death to divide the principal sum equally among certain charitable societies in New York. Held, that before the court could determine whether the bequest to the societies in question is to any extent invalid under Laws of 1860, chapter 360, the value of the whole estate owned by the testator at his death, must be ascertained, and the nature of this testamentary disposition of the real property in Madeira. Tlie court must also be advised as to the value of the trust provision for the widow’s benefit.

      B. J. Newland, for petitioner; Bunniny Fowler, W. A. W. Stewart, B. F. Bunniny and F. L. Faneher, for legatees.
   Rollins S.

The surrogate is asked to determine, in accordance with section 2634 of the Code of Civil Procedure, the validity and effect of certain dispositions contained in this testator’s will.

The sole dispositive provision of that instrument is as follows : “ All my estate of every name and kind and wheresoever situate, with tbe exception of my real estate in tbe Island of Madeira, (of wbicb I have made testamentary disposition in accordance with tbe laws prevailing there,) I give, devise and bequeath unto my executor in trust to invest and keep the same invested, and to collect the interest and income thereof and to apply the said interest and income to the use and benefit of my wife for and during her natural life, and at the death of my said wife I give and bequeath the said principal sum to my executor in trust to divide the same in equal portions among the following named institutions.” Then follow the names of four charitable and benevolent societies in the city of New York.

Chap. 360 of the Laws of 1860, entitled “ An act relating to wills” (3 Banks, 7th Ed., 2288), declares that “ no person having a husband, wife, child or parent shall by his or her last will and testament devise or bequeath to any benevolent or charitable society more than one-half of his or her estate after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half and no more.”

It is claimed in behalf of this testator’s widow that, for the purpose of this section, his “ estate ” should be treated as co-extensive with the property of which this will undertakes to make disposition, and that the real estate in Madeira should be thrown out of consideration.

This contention seems to be unsound. Before the court can determine whether the bequest to the societies in question is to any extent invalid, the value of the whole estate owned by the testator at his death must be ascertained and the nature of the testamentary disposition of the real property in Madeira. The court must also be advised as to the value of the trust provision for the widow’s benefit.

I can give no direction respecting the cost of making the suggested presentation of facts. I doubt my authority to direct the executor to expend moneys in this regard; and, even if the authority were beyond dispute, it would nofbe proper under the circumstances disclosed by the papers before me to require the representative of the estate, at the petitioner’s instance, to incur expenses which events may possibly proved to be justly charge able to the petitioner herself.


author: Rollins, J.

text:
    Estate of Emilie Weil, deceased.

      (Surrogate's Court, New York County,

      Filed November, 1886.)
    1. Will — Testamentary capacity, proof of — Undue influence.
    If decedent was a free and capable testatrix lier will must stand, even though her sole aim in bringing it into existence was to cut off her relatives from receiving the property, which, in the absence of a will, they would take by virtue of the Statute of Distributions.
    2. Same — what influence proper.
    A testamentary paper will not be vitiated because the testatrix evidently allowed herself to be controlled by the influences arising from gratitude and affection.

      Albert Steohler, for proponents; Aaron J. Vanderjpoel, for contestant.
   Rollins, J.

The decedent died at her residence in this city on the 20th of June, 1885, leaving as her surviving next of kin two brothers, Meyer Oppenheimer and Baer Oppenheimer, the former residing in New York and the latter in Hamburgh, Germany. These brothers join in opposing the probate of an instrument that was lately propounded as Mrs. Weil’s last will and testament, and regarding the authenticity, validity and legality of which, certain evidence has been taken before the surrogate on behalf of the contending parties. — That the disputed instrument was duly executed has been established to my entire satisfaction. Indeed, as regards the regularity of its execution, counsel for the objectors makes no claim that it should be refused probate.

He rests his opposition upon two grounds: 1st, the decedent’s alleged testamentary incapacity; and 2nd, her alleged subjection to undue influence and control.

The will, which bears date April 12, 1885, two months before Mrs. Weil’s death, undertakes to dispose of her entire estate, which is admitted to consist wholly of personalty and to be of the value of about $ 5,000. It bequeathes nothing to her relatives except the sum of $5 to her brother Meyer : a legacy that was manifestly given, merely as an affirmative declaration of her purpose that Meyer should have no substantial portion of her estate.

Certain wearing apparel and $ 50 in money are bequeathed to Rosa Straus, who in the last illness of the decedent acted as her nurse: her washerwoman, Kate Minister, is bequeathed 120: her executor is directed to expend $ 50 in procuring prayers to be read for the repose of her soul, and not more than $ 150 for the erection of a headstone at her grave and the construction of a fence around her burial plot.

The most important dispositive provision is the following:

“ All the rest, residue and remainder of my estate, consisting of household furniture, bed linen, etc., one red shawl, my gold watch and chain, all the money in banks or in my possession at the time of my decease, I give to Mrs. Hannah Hoffman of 358 East 10th St.”

The disputed paper appoints Joseph Waldeck' as its executor. Mr. Waldeck, who is engaged in the insurance busness in this city, made decedent’s acquaintance about six or seven jmars before she died and when she was about sixty years of age. Thenceforth down to the time of her death he was accustomed to transact for her from time to time small matters of business.

Early in the year of 1885 Mrs. Weil advised Waldeck of her purpose to make a will and asked him to secure the services of some person competent to prepare such an instrument.

Mr. Waldeck selected for that task Mr. Ansbacher, a lawyer, whom he had employed as counsel in some affairs of his own. Ansbacher soon afterwards waited upon the decedent at her rooms, but went away without drawing a will or receiving any instructions regarding its preparation, the decedent giving him to understand that she had decided to postpone the matter. She again brought it to Waldeck’s attention in the following April. On the 10th of that month, Waldeck having secured anew the services of Ansbacher, repaired with him and with one Louis Frank to Mrs. Weil’s apartments in East 10th Street, near Avenue C. There Ansbacher received from the decedent oral instructions for the will which he proceeded to incorporate into the paper now before me. When that paper had been fully prepared it was executed under Ansbacher’s supervision in the presence of Frank, Waldeck and himself. The three were examined at the trial and each of them gave his version of the transaction.

Their statements are in some respects variant, but the discrepancies are not of great importance and are quite consistent with a purpose on the part of all to reveal the truth.

The decedent seems to have distinctly declared her wishes as to the gravestone and the fence about the cemetery lot, and to have made it clear to her hearers that she was unwilling that the expense should exceed $150.

She was asked who were nearest kinsfolk and what were her purposes regarding them. She said that she had a brother living up town, but protested by various forms of expression that will presently be specified that he had neglected her and that accordingly she did not wish to leave him anything.

To an inquiry whether she had any relatives in Germany she replied, “Well about them I don’t want to know any thing; don’t mention them.”

It is very apparent from the testimony as a whole tnat the decedent’s resolve to make a will sprung from a. disposition to prevent the consequences that would flow from her dying intestate, more than from a disposition to benefit those whom she has selected as the objects of her bounty. But in this respect the paper before me does not greatly differ from many other and more important testamentary instruments that have fallen under my observation.

If this decedent was a free and capable testatrix her will must stand, even though her sole aim in bringing it into existence was to cut off her relatives from receiving the property which in the absence of a will they would take by virtue of the Statute of Distributions.

It was, as I believe from the evidence, a wish to prevent these contestants from enjoying her posthumous estate that prompted the decedent to announce to Waldeck early in 18S5, her wish that he should himself be the object of her testamentary bounty.

This proposal to which Waldeck refused to accede, she renewed while Ansbacher was engaged in preparing a draft of the will. Waldeck again declined and offered a suggestion that if she were determined to ignore her relatives in disposing of her estate she might very properly give it to some charitable institution. This suggestion meeting with no favor, Waldeck asked her if she did not have some friend who had been kind to her during her long illness. The' decedent at once replied, “ Yes, the butcher woman across the street ” (referring to the legatee, Hannah Hoffman, whose husband was a butcher) “ has been very kind.” Waldeck said, “Well, give it to her then,” and, as regards the bulk of her estate, this is what Mrs. Weil decided to do, and has undertaken to do by the paper before me.

Now what inference must be drawn from the fact, if it be a fact, that when she summoned the lawyer to draft that paper, she had not fully decided whom to make her principal legatee ? I intimate a doubt as to whether she had reached a decision, or not, because it is possible that in spite of Waldeck’s protestations she may have believed that he would at last consent to become the recipient of her bounty. But assuming that she had discharged that notion, what must be inferred from her want of decision as thus evinced, and as evinced also by the readiness with which she assented to Waldeck’s suggestion?

Is it anything more than this: that she was a woman without much mental activity or much strength of purpose ?

But she must nevertheless be declared competent to direct the disposition of her estate, if, within the meaning of our Statute of Wills, she was possessed of “sound mind and memory”; mere weakness of mind does not amount to incapacity. (Horn v. Pullman,, 72 N. Y., 269; Cornwell v. Riker, 2 Dem., 364). “If a man be of mean understanding,” says Swinburne (Swim. Wills, Part 2, § 4), “ though he rather incline to the foolish sort, so that for his dull capacity he might worthily be termed grossum caput, such a one is not prohibited to make a testament.” I certainly cannot find the decedent intestable because of anything that was done or omitted by her in connection with the making and executing of her alleged will.

Nor does the testimony of the witnesses called in behalf of the contestants who told of certain eccentricities of conduct on the part of Mrs. Weil, long prior to the day with which we are here especially concerned, throw much doubt upon her competency, in view of other testimony tending strongly to show that on that day and at periods not far removed from it, she was in full possession of her mental faculties. There is really nothing in the evidence bearing upon the question of testamentary capacity •which lends much support to the claim of the contestants except the inaccuracy of a statement incorporated into one of the provisions of the will. “To my brother Meyer Oppenheimer,” that paper says “ who has neve.r visited me during my sickness,” “ I give and bequeath the sum of five dollars in cash.” Now it is not true that Meyer made no visit to his sister while she was ill. It is impossible to ascertain from the testimony the number of his visits : there may have been as many as five or six, in the five or six months next prior to April, 1886. It is not clear that there were any more. The contestants insist that the decedent’s use of the language just quoted shows that her memory was so greatly impaired as to indicate a condition little short of imbecility, or that she was the victim of an insane delusion in respect to the conduct and character of her brother Meyer.

A careful review of the various interpretations of the language used by the decedent in her references to Meyer, (for it must be borne in mind that she spoke in German and had little understanding of English) and a consideration of the circumstances under which that language was uttered, have satisfied me that she did not intend it to be literally exact and accurate. It was the language of indignation and resentment occasioned by the infrequency of Meyer’s visits and by what she evidently regarded as his indifference and neglect. She was old and sick and infirm, living in cheap apartments in a tenement house, with no relative at hand and with nobody to minister to her wants from day to day except sympathizing neighbors and a hired nurse. If her brother Meyer exhibited any special interest in her or displayed towards her any special fraternal affection, it certainly is not disclosed by the evidence. It was not, therefore, as it seems to me, at all extraordinary that she should have characterized his seeming lack of attention in somewhat extravagant terms.

At page 3 of the stenographer’s minutes appears the following testimony of Ansbacher :

“ She said that she had a brother here in this city; that he never came near her during her sickness. She had been sick for two years, I' believe she stated, and he had never been near her.” — The same witness says at page 7, “ He ” (her brother) “ had not been near her during her sickness: I think about two years that he had forgotten her entirely, but to show that she had not forgotten him she would leave him five dollars.”

The subscribing witness Frank testifies at page 11: “ Mr. Waldeelt said, “ Have you not got any relations?” So she says, “ My relatives never come to . see me by life and they cannot see me when I have died.” Mr. Waldeelt asked particularly whether she had any relations here or in Europe, and she said those relations she had' got in Europe they can get nothing, and Mr. Oppenlieimer gets five dollars. Mrs. Weil says, “ This lady (referring to the legatee Mrs. Hoffman) “ shall get the rest of her money because she treated her like a mother. She comes here every day, morning and afternoon, and brings breakfast and dinner.”

At page 13, Frank says : “Mr. waldeck asked Mrs. Weil, “ Have you any relatives here ? ” She said she had a brother here but didn’t - mention his name, and she said he will not get but five dollars because he did not come to see her — -in her sickness.”

Waldeck testifies at page 18: “I asked her if she had got any relations here. Yes, she had got a brother here, but she did not care about him because he did not come to look after her and he should have nothing.” Again at page 21: “ I asked her if she did not want to give her relations, her brother, anything,”. . . she said, ‘No, he can’t have nothing because he don’t care anything about me when I am sick.” Yet again at page 28 : “ She said she had a brother here, that he never cared for her and never visited her while she was sick and so she did not want to have anything to do with him and don’t want to leave him anything.”

Is it not far more reasonable to suppose, taking all this testimony together, that the decedent if she made use of any German word or phrase for 'which “ never ” is the English equivalent, was guilty of what upon inquiry she would have admitted to be an exaggeration, than to suppose that she had altogether forgotten the visits of her brother or was under such a delusion regarding him that she did not know that those visits- had ever taken place ?

Apart from the testimony of Mr. Waldeck and of the subscribing witnesses Frank and Ansbacher, Dr. Lilienthal, the physician who saw Mrs. Weil on the day before her death and “ pretty much every day ” for the two months preceding, says that “ her mind was perfectly clear.”

I have already declared that the account given by some of the witnesses of certain absurdities of speech and conduct on the part of the decedent were not calculated to create any serious doubt of her competency.

I cannot believe that her brother Meyer, if he was at all worthy of her affection, regard and testamentary recognition, (and he-claims that he was)would have suffered her, had there been any substantial grounds for believing her insane, to live for so many months alone, suffering from illness, and to all appearances suffering also from poverty. He would not have failed to procure for her the medical treatment, and the care, attention and nursing demanded by her unfortunate condition.

The testamentary capacity of the decedent has all in all been proved to my satisfaction.

There is no evidence in this case which would justify a finding that in making the paper here in dispute the decedent was subject to undue influence. It does not appear that any of the persons whom it names as beneficiaries were directly or indirectly instrumental in procuring it to be made and executed. Nor does it appear that any of the persons concerned in its making and execution have the slightest interest in its dispositions. The decedent was subjected to no restraint and to no importu-nities. She evidently allowed herself to be controlled by the influences arising from gratitude and affection. Such influences do not vitiate a testamentary paper (Gardiner v. Gardiner, 34, N. Y. 155).

Counsel for the contestants claim that the failure of their adversaries to call Mrs. Hoffman to the stand is a circumstance that makes against the will. Had she been produced in her own behalf, she could not, within the limitations of § 829 of the Code of Civ. Proc. have testified to any personal transactions or communications between herself and the decedent; and it does not appear that aside from such transactions and communications there were any competent and material facts within her knowledge. The contestants saw fit to resort to their rights under § 2,618 by calling for the examination of the decedent’s nurse and washerwoman, to each of whom the will gives a small legacy. They could have similarly compelled the production of Mrs. Hoffman, but did not see fit to avail themselves of that privilege.

The contestants’ objections must be overruled and the will admitted to probate. Let a decree be entered accordingly.


author: Adlington, S.

text:
    Matter of the final accounting of A. Francis Southerland as sole trustee of the estate of John McConvill, deceased.

      (Surrogate’s Court of Monroe County,

      Filed November 18, 1886.)
    Wills — Legacies — Intention of testator the guide in interpretatioN —What words will create ah estate — Contingent estates.
    Tlie will of a testator contained a clause providing as .follows : “ I give, devise and bequeath all my estate both real and personal to J. C. 0. of R. to hold the same in trust during the minority of my son A. S. McC., and after he shall arrive at the age of twenty-one years, I give, devise, and bequeath the same to said A. S. McC., his heirs and assigns forever.” “ In case said A S. McC. shall die before arriving at the age of twenty-one years, then I give and bequeath to A. Y. S., of the city of N. Y., the sum of five thousand dollars, and all the rest and residue of my estate, both real and personal, I give, devise, and bequeath to J. L., and J. C. C., H. L. B., J. W. R., and J. A. C., to be divided among them, share and share alike.” The will was executed and the testator died, leaving an only son, A. S. McC., an infant. Subsequent to the death of the testator, the legatee A. V. S., died, and the residuary legatees J. W. K., and J. C. C., the son A. S. McC. died also before reaching the age of twenty-one years. After the death of J. C. C., Mr. J. was duly appointed sole trustee under the will. Upon his accounting as such it became necessary to determine whether these legacies lapsed by the death of the legatees. It was held, that the intention of the testator, as disclosed by his will, must be the guide to the solution of the inquiry, and that intention is not controlled by punctuation, or strict grammatical rules. Held, also-, that there was no intention to postpone the right to the gift, but only the time at which, if ever, it should take place in possession; in other words, it was intended to make the rights of the legatees contingent only upon A. S. McC.’s death under age, without annexing to the gift the further condition of survivorship. The interests of the several legatees vested in right upon the decease of the testator, to become absolute upon the death of the son during his minority, and liable to be wholly divested by his attaining the age of twenty-one years. The interests of the deceased legatees, therefore, having vested in right, passed to their legal representatives upon their respective deaths, notwithstanding the fact that A. still living, their right to possession had not yet accrued.
    PROCEEDING for settlement of the accounts of trustees and distribution of estate.

      E. E. Hyde, for trustee, and for executors of Andrew V. Stout, and administrator of Andrew Stout McConvill; H. H. Woodward and Edward E. Wellington, for executors of deceased residuary legatees ; Satterlee Yeoman, and Hiram L. Barker, .for surviving residuary legatees.
   Adlington, S.

In this proceeding brought to obtain a final ■settlement of the accounts of the trustee above named, and a decree for the distribution of the trust estate, it becomes necessary to construe the will of John McConvill, deceased, under which the trust arose.

The material portions of that will are as follows, viz.: “ I give devise and bequeath ah my estate both real and personal to .James C. Cochrane, Esq., of Rochester, to hold the same in trust during the minority of my son, Andrew Stout McConvill, and after he shall arrive at the age of twenty-one years I give devise and bequeath the same to said Andrew Stout McConvill, his heirs and assigns forever.”.“In case said Andrew Stout McConvill shall die before arriving at the age of twenty-one years, then I give and bequeath to Andrew Y. Stout of the city of New York the sum of five thour ;sand dollars, and all the rest and residue of my estate, both real .and personal, I give, devise and bequeath to John Lutes, James C. Cochrane, Hiram L. Barker, John W. Kelly and John A. Colwell, to be divided among them share and share alike.” .James C. Cochrane was made sole executor of the will, and after its probate on October 4th, 1873, duly entered upon the discharge of his duty, both as executor and trustee.

The will was executed on the 4th day of September, 1878, and on September 8, 1873, the testator died, leaving an only .son, Andrew Stout McConvill, then about four years of age, ,and also several brothers and sisters. His estate consisted wholly of personal property, and ivas valued, at about $27,000. .Four of the persons, named in the decedent’s will as beneficiaries thereunder upon certain contingencies, have departed this life Isince the probate of said will and before the beginning of this proceeding: John W. Kelly died January 28, 1875, James C. Cochrane on January 25, 1881, and Andrew V. Stout on September 5, 1883. Each left a will duly admitted to probate, disposing of his .entire estate.

The executors of each appear in tins proceeding. The testator’s only son, Andrew Stout McConvill, died April 20, 1885, at the age of sixteen years.

After the death of Mr. Cochrane this petitioner, Mr. Southerland, was duly appointed sole trustee under the will. By reason of the death of Kelly, Cochrane and Stout before the happening of the event which would have entitled them to receive their respective interests under the will, viz: The decease of the testator’s son during minority, the following questions arise :

First: — Did the legacy to Stout or the residuary interests of Kelly and Cochrane lapse ?

Second: — In case of such lapse what disposition should be made of the lapsed portion of the fund in the distribution of the estate ?

The counsel for the decedent’s next of ldn insists that the rights of all the persons last mentioned to take, under the will, depended upon their surviving the death of the son, Andrew, before attaining his majority; and that the decedent died intestate as to the sums which said beneficiaries would have received in the event of such survival.

On behalf of the residuary legatees it is maintained that only the legacy to Stout lapsed, and that the surviving residuary legatees and the legal representatives of those deceased, take the entire estate.

The executors of Stout claim the right to the latter’s legacy under his will.

The second of the questions above stated is answered by rules of law, well settled and easily applied, and can only become important in case the first question shall be answered in the affirmative.

Whether or not the interests of Stout, Kelly and Cochrane, or either of them, lapsed through the death of the legatee during the lifetime of Andrew Stout McConvill, becomes, therefore, the primary and principal subject for consideration. The intention of the testator, as disclosed by his will, must be our guide to the solution of this inquiry; and that intention is not controlled by punctuation, or strict grammatical rules. Arcularius v. Geisenhainer, 3 Bradf., 65; Pond v. Bergh, 10 Paige, 141.

It seems to be unnecessary to discuss separately the legacy to Stout and the residuary interests of Kelly and Cochrane. One is as much a future interest in personal property within the meaning of the Revised Statutes hereinafter referred to, as is the other.

They each depend upon the same contingency, to wit, the death of the son during minority. The words upon which the gift in each case depends, are these: “ In case said Andrew Stout McConvill shall die before arriving at the age of twenty-one years.” The word Then only emphasizes the event upon which the gift becomes absolute, and refers back to the words relating to the death of Andrew which precede. It is as though the testator had said: In case of the death of my son Andrew, in that event, or, in such case, I give.” The fair grammatical construction of the paragraph, with a view of ascertaining the intent of the testator, would require the same effect to be given to then in the residuary clause as in the one relating to Stout. It cannot well be said to belong to the one more than the other. I do not think there was any intention to postpone the right to the gift, but only the time at which, if ever, it should take effect in possession; in other words, it was intended to make the' rights of the legatees contingent only upon Andrew’s death under age, without annexing to the gift the further condition of survivorship. Then sometimes indicates an order or succession of events. Cresson’s Appeal, 76 Penn., St. 21.

For cases in which Then has been similarly used and construed, see Bedell v. Guyon, 12 Hun, 396-398; Hennessy v. Patterson, 85 N. Y., 91; Matter of Mahan, 98 N. Y., 376. Before proceeding to consider the main question, it will be of advantage to ascertain the nature of the estates which passed upon the death of the testator to the trustee, Mr. Cochrane, and to the son, Andrew.

The trustee took a vested estate in possession to continue until the son’s majority, or death before that time arrived. This trust relating only to personalty was not effected by tbe provisions of the Revised Statutes in respect to the validity of trust estates. Savage v. Burnham, 17 N. Y., 571; Gilman v. Reddington, 24 N. Y., 12, 13; Graff v. Bonnett, 31 N. Y., 19; Power v. Cassidy, 79 N. Y., 613.

No estate could vest 'in the son, Andrew, unless he should live to the age of twenty-one years. The language of the will seems to be plain upon this point, “ After he shall arrive at the age of twenty-one years,. I give, devise and bequeath the estate to him., his heirs and assigns forever.” That this is the case is also clear upon authority. 2 Williams on Executors, (6th Am. Ed.) 1326, 1327, (1224-1225); 1 Roper on Legacies, (2 Am. Ed.) 565; Leake v. Robinson, 2 Merivale, 363; Kenyon v. See, 94 N. Y., 563; Wylie v. Lockwood, 86 N. Y., 291-297; Bushnell v. Carpenter, 92 N. Y., 270-274; Patterson v. Ellis, 11 Wend., 268.

Andrew’s estate was contingent upon his arriving at the age of twenty-one years, and his right to have it vest, either in interest or possession, was dependent upon the same event. Nothing could pass, therefore, to his administrator upon his death during his minority.

Under the provisions of the Revised Statutes, (part 2, chap. 4, title 4, sec. 2,) “ limitations of future or contingent interests in personal property ” are made “ subject to the rules prescribed .... in relation to future estates in lands.” The interests of tbe deceased legatees and the rights of tlieir legal representatives therein must, therefore, be determined upon the same principles as would be applied if the decedent’s estate consisted wholly of land.

Sec. 10, art. 1, title 2, chap. 1, part 2, of the Rev. Stat. defines a future estate in land as “ an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate, created at the same time. Sec. 18 declares that “ future estates are either vested or contingent.

They are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate.

They are contingent whilst the person to whom, or the event upon which, they are limited to take effect, remains uncertain.”

Section 25 is as follows:

“ Two or more future estates may also be created to take effect in the alternative, so that if the first in order fail to vest, the next in succession shall be substituted for it, and take effect accordingly.”

Under section 35.

Future estates whether vested or contingent are descendible devisable and alienable.

It seems plain, under the foregoing definitions as well as for the reasons before stated that Andrew Stout McConvill took a contingent future estate, to which was annexed the condition precedent that he should live to be twenty-one years of age before such estate could vest either in right or possession.

It has been plausibly argued that each of the legatees named in the will took on the death of the testator, a vested estate, as the same is defined in sec. 13 above quoted. It is said that they were persons in being who would have an immediate right to the possession of the property upon the ceasing of the intermediate or precedent estate, and that the estate vested in the trustee was such precedent estate. On the other hand it is maintained that the estate of each legatee was contingent while the event upon which they were limited, to wit, the death of Andrew under age, remained uncertain.

I am of the opinion that the latter is the correct view of the matter and that the estate of the son, as well as that of each legatee was a contingent one, created to take effect in the alternative, according to the provisions of sec. 25, of the Rev. Stat. above quoted.

The interests of the several legatees vested in right upon the decease of the testator, to become absolute upon the death of Andrew during his minority ; and liable to be wholly divested by his attaining the age of twenty-one years. Smith v. Scholtz, 68 N. Y., 61; Hennessy v. Patterson, 85 N. Y., 99; Kenyon v. See, 94 N. Y., 568.

The interests of the deceased legatees, therefore, having vested in right passed to their legal representatives upon their respective deaths, notwithstanding the fact that, Andrew still living, their rights of possession had not yet accrued. Rev. Stat. (supra) sec. 35 and cases last cited.

Such interests would have passed by will even at common law. Winslow v. Goodwin, 7 Met. 363, 377. Pond v. Bergh, 10 Paige 140, 153. Hennessy v. Patterson, 85 N. Y., 99. 2 Wash on real property, 582 (223).

The case of Hennessy v. Patterson, 85 N. Y., 91, seems to be similar in its facts to the present one, and decisive of it in principle. In that case the testator devised certain premises to his wife for life, for her own and her daughter’s benefit. He then provided that if the daughter, Margaret, should marry and die, leaving children, the property should go to such children, but in case of her death without issue then the property should be left to a nephew, John Foley. The widow died after the testator. Margaret married but died childless, Foley died after the widow and before Margaret. It was held that Foley took a contingent remainder which vested in him as a right, according to its character, on the death of the testator ; and that Foley’s interest descended to his heirs and vested absolutely in them upon the death of Margaret without children. Vincent v. Newhouse, 83 N. Y., 505, Delaney v. McCormack, 88 N. Y. 174, and Shipman v. Rollins, 98 N. Y., 311, cited as establishing the proposition that the interests of Stout, Kelly and Cochrane were dependent upon their surviving the death of Andrew are clearly distinguishable from the one under consideration. In those cases the fund to be ultimately distributed was not in existence at the death of the testator, but was to be created at a subsequent period by the sale of real estate, and until the creation of the fund no estate therein could vest either in interest or possession.

In Kelso v. Lorillard, 85 N. Y. 177, and Magill v. McMillan, 23 Hun, 193, the further condition of survivorship was annexed to the gift, by the express language of the will.

The case of Williams v. Seaman, 3 Redf. 148, so much relied on by counsel, seems to me to have no bearing upon the question under consideration here.

Although the statement of facts in that case is very defective and leaves it wholly uncertain whether Julia, the residuary legatee, died before the testator or after her, yet the fact that Julia’s death preceded her testator’s is made apparent from the opinion of the learned surrogate. On page 150 that statement is made in express terms in connection with the discussion of the case of Burtis v. Doughty.

The paragraph quoted from 1 Roper on Legacies, 465, near the beginning of the opinion (p. 149) bears directly upon the effect of the legatee’s death during the lifetime of the testator. The other authorities cited and discussed relate wholly to the effect of the word “ heirs ” in a bequest, and there is nothing in the case which can throw light upon the question of lapse as it comes up in the present case.

My conclusion is, therefore, that the right to legacy of Stout, and to the residuary interests of Kelly and Cochrane passed upon their respective deaths to their legal representatives, and that after payment of such legacy to Stout’s executor, the residue of the estate should be paid over in equal one-fifth parts to Hiram L. Barker, John Lutes, John A. Colwell, and the executors of John W. Kelly and the executors of James C. Cochrane.

A decree in accordance with the foregoing opinion may be entered on five days notice to the parties who have appeared herein.


author: Rollins. S.

text:
    In the estate of Freeman J. Fithian, deceased; two matters.

      (Surrogate’s Court of New York County,

      Filed November 30, 1886.)
    1. ACCOUNTING, BY REPRESENTATIVE OP DECEASED EXECUTOR — CODE Civ. Pro., § 2606.
    Where an executor died before accounting upon a proceeding taken by a beneficiary under the will of the testator for an order requiring the executrix of the executor to render and settle his account, it was held, that by virtue of Code Civ. Pro., § 2606, the executrix was compelled to account, not only for such assets of the testator as came to her hands, but for the entire administration by the executor.
    2. Same — Jurisdiction op surrogate's court to order delivery op TRUST PROPERTY.

      Held, also, that by this section the authority of the surrogate to compel the executrix of the deceased executor to deliver over trust property was confined to such as had come to her possession or under her control, and that it contemplated a delivery into court or to a newly appointed representative, but not to a legatee, next of kin, or creditor.
    No. 1. Accounting proceeding.
   Rollins. S.

The will of this decedent, who died on August 4th, 1884, named Lemuel B. Clark as its executor. Mr. Clark was granted letters testamentary on October 15th, 1884. He died on June 9th, 1886, having rendered no account of his administration. He left a will of which his widow Mary J. Clark is executrix. She qualified as such on July 7, 1886. On the succeeding day a proceeding was instituted in this court by Mrs. Harriet J. Fithian, widow of the testator and beneficiary under his will, for an order requiring Mrs. Clark, as executrix of her late husband’s estate to render and settle his account as Mr. Fithian’s executor.

On October 14, 1886, the respondent filed an account, the scope and character whereof are indicated by its opening sentence, which is as follows: “ I, Mary J. Clark, executrix of Lemuel B. Clark, deceased, who was himself executor of Freeman J. Fithian, deceased, do hereby account for all money and other property received by me as such executrix belonging to the estate of the said Freeman J. Fithian, deceased.”

It is insisted on behalf of the petitioner that by virtue of section 2606 of the Code of Civil Procedure (and it is upon that section that the present proceeding is founded), she is entitled to an accounting from this respondent, not only as regards all money and property of the testator’s estate which have come to the respondent’s hands, but also as regards all such money and property as came at any time to the hands of the respondent’s late husband.

I had occasion in several reported cases which arose before the enactment of Chap. 899 of the Laws of 1884, to consider the extent of the surrogate’s authority to require the executor or administrator of a decedent, A, who had acted in his lifetime as the executor or administrator of a decedent, R, to account for A’s dealing’s with B.’s estate. (Le Count v. Le Count, 1 Dem., 29: Maze v. Brown, 2 Dem., 217; Murray v. Vanderpoel, Ibid, 311: Bunnell v. Ranney, Ibid, 327).

In the eases just cited it was held that such accounting could be insisted upon, only to the extent that the representative of the deceased executor or administrator had come into possession of assets belonging to the estate of such deceased executor’s or administrator’s decedent.

These limitations were removed by the act of 1884 above referred to, and section 26Q6 was so amended as to provide, that “ where an executor or administrator dies, the surrogate’s court has the same jurisdiction to compel the executor or administrator of the decedent ” (that is such of deceased executor or administrator) “ to account which it would have against the decedent ” (such deceased executor or administrator meaning) if his letters had been revoked by a surrogate’s decree.”

Now in the present case if this respondent’s testator were alive he could be required, even though his letters testamentary had been revoked, to account for his entire administration of this estate. And such an account is precisely what may be required of his executrix, i, e an account of her husband’s administration from the day of his appointment until his death. The only important practical change effected by the act of 1884, is one that relates purely to methods of procedure. But for that act the course which any person interested as legatee in the estate of this testator would be obliged to pursue, in bringing about an adjustment of the claims of such estate upon the estate of the testator’s deceased executor Clark, is that which, is pointed out in the cases above cited. The new statute has. provided a shorter and simpler method of adjustment, I must, therefore, .sustain the petitioner’s objection that the account of the respondent is on its face incomplete. It may be amended and after ■amendment the petitioner will be allowed to file new objections,

No. 2. Petition under section 2606 Code Civ, Pro,, for delivery of trust property:

In tbe foregoing memorandum I have held that tins respondent as executrix of her late husband must account not only for such assets of Mr. Fithian’s estate as have come to her hands, but for all assets of that estate that at any time came to the hands of her deceased husband. But the authority of the surrogate under section 2606 of the Code of Civ. Pro. to compel an executor or administrator of a deceased executor or administrator of a decedent, “ to deliver over trust property ” of such decedent, is limited to such property as has come to the possession of or is under the control of the representatives of such decedent’s deceased executor or administrator. Even as regards such property the surrogate cannot direct a delivery to any person claiming as legatee, next of kin or creditor of such decedent. The statute contemplates a delivery into court or to a newly appointed representative of the decedent’s estate. By no other course could the rights of all persons interested in such estate be properly protected (Spencer v. Popham, 5 Redf., 425). This application must be denied.


text:
    In the estate of Sigmund Sinzheimer, deceased.

      (Surrogate’s Court of New York County,

      Filed December 8, 1886.)
    1. Will — Coxstkuctiox of — Natubal heies.
    m. testator died leaving a wife but no ancestors, descendants, brothers, sisters, nephews or nieces, his only next of kin at the date of his will and on the day of his death was his aunt. The third article of his will provided, “ all the rest residue and remainder of my property both real and personal, I give, devise and bequeath to the following parties, viz. and the balance to my natural heirs.” Held, that there was nothing in the context of the will from which it can be inferred that by the use of the word “natural” it was designed to enlarge or restrict the meaning which would have been accorded the word “heirs.” That the word “heirs” when used by the testator to indicate the beneficiaries of a bequest of personal property must be interpreted as equivalent to the term “next of kin,” in the absence of anything pointing to some other interpretation as more consonant to the testator’s intention, and that a man’s widow is neither his heir nor next of kin, it was held, therefore that the aunt, as the testator’s only next of kin, was entitled to his entire residuary estate.

      2. Same.
    At the date of testator’s will, T., who afterwards became his wife, owned a dwelling-house on which were two mortgages. In the lifetime of testator, and before his marriage with T. one of the mortgages was paid off by her, and satisfied of record. The moneys thus applied were borrowed by T. and pot repaid until after testator’s death. The second clause of testator’s will provided “ I hereby order and direct my executors in case my said friend T. retains at the time of my decease, the ownership of the house and lot now occupied by her, to pay and fully discharge the two mortgages one of- and the other of —, now liens upon the said house and lot, or any balance of either or both, and to fully free, release and discharge said property therefrom, and to satisfy such mortgage. Held, immaterial in what way T. acquired the money for the payment of the mortgage which was discharged, and so far as concerns that mortgage, the situation for which he made contingent testamentary provision had ceased to exist.

      Frazer $ Minor, Attys. for Admx.; John F. Brodsh/, Special Guardian for Maria Betty, Sophie Masiges; Samuel Gr. Sheyer, Atty.for Laura Levinger; Wm. 3. Neuschafer-, Atty. for Csecilia Odenheimer ei al.

   This decedent died in May, 1885, leaving as Ms last will an instrument wMcb was executed in July, 1882. In Nov., 1884, be bad married one Christina Terns to whom by the first article ■ of the will be has bequeathed a legacy of $5,000. Mrs. Sinzbeimer survived her busbaud and as administratrix c. t. a. of bis estate is now .accounting before the surrogate. Upon this accounting two questions have arisen for determination.

First. "Wliat is the true construction of the third article of the will ? Its language is as follows :

“ All the rest, residue and remainder of my property both real and personal I give, devise and bequeath to the following parties, viz : Five thousand dollars to Katie Terns and the balance to my natural heirs.” Now who are the testator’s natural heirs ? No children were born of his marriage. He left him surviving no ancestors, descendants, brothers, sisters, nephews or nieces. So far as appears, Ms only next of Mn at the date of his will and on the day of his death, was Ms aunt Laura Levinger.

There can be no doubt that if he had given his residuary estate (which consists wholly of personalty) to his heirs ” instead of to Ms“ natural heirs ” this aunt would have been entitled thereto to the exclusion of all other persons. The recent- decision of the court of appeals in Tillman v. Davis, 95 N. Y., 17, has conclusively established that the word “ heirs,” when used by a testator to Mdicate the beneficiaries of a bequest of personal property must be interpreted as equivalent to the term “next of Mn ” in the absence of anytMng pointing to some other Mter-pretation as more consonant to the testator’s intention; and that a man’s widow is neither his heir nor his next of Mn, has been repeatedly declared by the courts of tins State. (Drake v. Pell, 3 Edw. Ch., 251; Slosson v. Lynch, 43 Barb., 147; Murdock v. Ward, 67 N. Y., 387; Keteltas v. Keteltas, 72 N. Y., 313; Tillman v. Davis, supra.) Unless, therefore, this testator’s use of the word “ natural ” in connection with the word “ heirs ” somehow affects the signification wMch the latter word by itself would have, I must regard the case last cited as decisive of the matter under discussion. Counsel have referred me to two reported testamentary causes in which the expression “natural heirs” has been the subject of judicial interpretation. These are Miller v. Churchill, 78 N. C., 372 and Ludlum v. Otis, 15 Hun, 410. In the former the bequest was in these words. I bequeath to my sisters Nancy and Martha each one thousand dollars, and, in the event of the death of either without leavmg natural heirs, the amount I have bequeathed shall go to the survivor.” It was held that the testator must have used the term “ natural heirs ” as an equivalent for the term “ children” - or “ issue.”

For very palpable reasons that conclusion was unavoidable.

The testator whose will was before the supreme court of this department in Ludlum v. Otis, sufra, left him surviving a sister, his mother and several cousins. He left neither wife nor child. It was held that a bequest given by his will to his “ natural heirs ” belonged to his mother and sister, they being the persons who, because of proximity of blood, would have succeeded to his personal property in the event that he had died intestate.

The case just cited differs from the case at bar in this particular. In the former it was of no practical consequence whether the term “ natural heirs ” was construed as meaning “heirs,” or was held to have no meaning at all. Upon the one theory the mother and daughter were entitled as next of kin to take under the will; upon the other they were similarly entitled to take under the Statute of Distributions. But in, the present case) if the disposition of the residuary estate is to stand, the testator’s aunt will receive the benefit, while if it is to be held void because of uncertainty in the description of the legatee the property thus ineffectually bequeathed must fall to his widow. I do not find sufficient ground for holding the bequest of the residue invalid, in the mere fact that the testator has somewhat obscured his intentions regarding it by tacking the adjective “ natural ” to the noun “heirs.”

There is nothing in the context of the will, nothing, so far as appears, in the circumstances of the testator or the state of his family, from which it can be inferred or suspected that by his use of the word, “ natural ” he designed either to enlarge or restrict the meaning which would have been accorded to the word “ heirs ” standing by itself. •

I hold, therefore, that Laura Levinger is entitled as the testator’s only next of kin to his entire residuary estate.

Second. At the date of this testator’s will Miss Terns, who afterwards became his wife, was the owner of a certain dwelling house in this city on which there were then subsisting two mortgages, one of $8,000, the other of $2,000.

In the life-time of the testator and before his marriage to Miss Terns the $2,000 mortgage was paid off by her and was satisfied of record.

It is admitted that the moneys thus applied were borrowed by Miss Terns, and that the lender was not repaid until after the testator’s death.

It is now claimed in her behalf that under the second article of the will, she is entitled to be reimbursed for this payment. Such second article is in these words:

“ I hereby order and direct my executors,- in case my said friend, Christina Martha Terns, retains at the time of my decease the ownership of the house and lot now owned and occupied by her, to pay and fully discharge the two mortgages, one of $8,000, and. the other of $2,000, now liens upon the said house and lot, or any balance of either or both, and to fully free, release and discharge said property therefrom and to satisfy such mortgages.”

‘ The portion of the foregoing provision which I have italicized is inconsistent with any other interpretation than this : that to the extent that the mortgages in question were a lien upon the house and lot at the time of the testator’s death, and to that extent only are his executors authorized to apply all or part of the sum of $10,000 for discharging the incumbrances upon such property.

Whether Miss Terns borrowed the $2,000, or found it, or received it as a gift of the testator, or otherwise obtained it, is therefore immaterial.

The smaller of the two mortgages was in fact discharged before the testator’s death, and so far as concerns that mortgage the situation for which he made contingent testamentary provision has ceased to exist.


author: Lott, S.

text:
    Estate of John W. Smith, deceased.

      (Surrogate Court of King’s County,

      Filed December 6, 1886.)
    1. Tax ok legacies and collateral inheritances — Constructions— Descendants — L. 1885, Chap. 483.
    Caws of 1S85, Chap. 483, laying a tax on all property which shall pass by will, or by the intestate laws of this state to any one “ except father, mother husband, wife, children, brother and sister, and lineal descendants, born in lawful wedlock ” * * * is restricted to lineal descendants of the ancestor
    2. Same — Construction — Estate.
    The clause in the law as follows: “.provided that an estate which may be valued at a less sum than five hundred dollars shall not be subject to said tax or duty,” refers to the estate given to the person liable to taxation.
   Lott, S.

The tax is imposed upon all taking, “ except father’, mother, husband, wife, children, brother and sister, and lineal descendants born in lawful wedlock, and the wife or widow of a son, and the husband of a daughter, and the societies, corporations and institutions now exempted by law from taxation, provided that an estate which may be valued at a less sum than five hundred dollars, shall not be subject to said tax or duty.”

Two questions are submitted regarding the construction of this;

I. Are the words lineal descendants restricted to the descendants of ancestor ?

II. Does the word “ estate ” in the exemption clause refer to the entire estate left by the ancestor or to the share coming to the person, society or corporation liable to taxation ?

In answer to the first question it is submitted that the words “ lineal descendants ” are restricted to those of the ancestor, the section refers to the relation of all the persons named to the ancestor. It is not at all ambiguous; but if more was wanted the same words are used again in the second section of the act and provision is made for the taxation of a remainder, when left “ to a collateral heir of the decedent, or to a stranger in blood,” I think is decisive as to the proper construction being as here claimed.

As to the second question, I think it evidently refers to the “ estate ” given the person liable to taxation, and for the following reasons:

1. It could not concern the Legislature what the extent of the decedent’s estate amounted to.

If he had a million, and gave to persons deemed by him worthy (but not of the exempt class) one hundred dollars each, no possible reason could exist for taxing those legatees because he had given so much more to persons who were not liable to taxation.

2. The provisions of the second section shows that the Legislature intended only to value a remainder going to those not exempt.

The solution of the second question is not quite so clear as it might be, but still I think it accords with the intention of the Legislature, and I think the amount of the tax also shows that it was not intended to be placed on small legacies.


text:
    In the estate of John A. Brooks, deceased.

      (Surrogate's Court of New York County,

      Filed December 10, 1886).
    1. Executors and administrators — Accounting — Joint deposit bt HUSBAND AND WIFE — WHAT DEEMED ASSETS.
    Upon a reference in an accounting by the administratrix the wife of the deceased, it appeared that a sum on deposit in a bank to the joint credit of the deceased and wife, had been withdrawn by her as administratrix, and that one-half of the amount (less the sum to which she was entitled by law), was included in her inventory, an exception being taken to the ruling of the referee holding the wife chargeable with only one-half of the amount deposited, it was held that the deposit being to the joint credit of the husband and wife, upon the decease of the husband it became the property of the wife.
    2. Same — Moneys received from benefit associations.
    The disposition of moneys paid at a decedent’s death by benefit associa tions whereof he was a member, must be determined entirely by the constitution and by-laws of such associations, and such moneys are not assets of the decedent’s estate.
    3. Same — Funeral expenses — Reimbursement.
    The administratrix having paid the funeral expenses of the, deceased, and having subsequently received sums as funeral benefits ” and “ funeral expenses ” from benefil associations of which deceased was a member, is not entitled to credit on account of the payments made, she must be considered as reimbursed by the sums received.

      Robert 0. Byrne, Att’y for administratrix; P. 0. Belcerson, Att’y for Christopher Brooks et al., contestants.
   Rollins, S.

To tbe account filed by this administratrix in December, 1885, certain objections were interposed by three adult children of the decedent, and by the special guardian of two infants interested in his estate. The issues thus raised were submitted to a Referee ; whose report is before me. I pass upon the various exceptions to his findings and conclusions as follows:

First. It appears that at the time of decedent’s death, there was in the hands of the Hudson City Savings Institution to the joint credit of himself and his wife, now his widow and administratrix of his estate, the sum of $1,929,04, and that the widow as such administratrix subsequently withdrew those moneys from their place of deposit. It further appears that one half of such moneys, (less the sum of $150. set apart pursuant to law, for the widow’s benefit) was included in an inventory filed by her as administratrix and was appraised as assets of her husband’s estate.

The Referee has found this deposit of $1,929,04, to be “the joint property of the estate of John A. Brooks and of Eliza A. Brooks” (the widow), and has held that “in the absence of any evidence as to the respective proportions of each, the administratrix is chargeable with only one-half of the amount of such deposit.” It is insisted by the exceptions that she is chargeable with the whole.

Under the circumstances disclosed by the evidence, it seems to me that if the Referee has erred at all in this matter, he has erred in favor of the contestants. Surrogate Bradeobd held in Rom. Cath. Orphan Asylum v. Strain (2 Bradf. 37), that a deposit of moneys in the joint name of husband and wife with the privity of the husband must be taken as prima facie a gift of such moneys to the wife in the event of her surviving her husband, and that where such deposit had been left undisturbed by the husband, the money became on his decease the property of his wife.

The doctrine of the case just cited was recently asseverated by the Supreme Court of the Second Department, in Platt v. Grubb, 1 State Rep., 494. The moneys on joint deposit which were there held to have become the property of a wife at the death of her husband were distinctly found to have belonged, before the making of such deposit, to her husband alone. And yet DxkmAN, J., declared in pronouncing the opinion of the court: “ By reason of the unity of husband and wife in the view of the law an obligation taken in the name of both inures to the benefit of both, and the whole goes to the survivor.” “ This old rule of law,” he added, “ is stül prevalent in this State,” citing Bartles v. Nunan, 92 N. Y., 152, and Sanford v. Sanford, 45 N. Y., 723, and 58 N. Y., 72.

It was held by the court of appeals, in the latter case, that where a husband had loaned money, the taking by him of a promissory note for its repayment to the order of himself and his wife, imported a gift to his wife in case she should survive him. It was further held upon the second appeal that “ the fact that she” (the widow) “ gave the note to the appraisers as a part of her husband’s estate, while it is evidence tending to show that she had released to him her right of survivorship, is not conclusive, and does not estop her from claiming the note, in the absence of evidence that the position of any party has been changed in consequence, or that any transaction was had in reliance thereon.”

From the testimony of the administratrix in the case at bar it appears that in drawing the moneys in dispute from the bank where they were deposited she acted in her capacity as adminis-tratrix because the officer of the bank told her to do so, and she “ obey his order.” There is nothing at variance with the principle governing the cases above cited in the decisions of Mulcahey v. The Emigrant's Industrial Savings Bank, 89 N. Y., 435; Gelster v. Syracuse Savings Bank, 17 Week. Dig. 137, or Syracuse Savings Bank v. Hess, 23 Week. Dig. 280. The exceptions which relate to the item of $1,929,04, must therefore be overruled.

Second. The decedent in his life-time was a member of several lodges and associations, by the provisions of whose constitutions and by-laws certain sums of money, amounting in all to $321, were paid after his death to his widow. She has charged herself with none of these moneys and the referee has held that, she is not liable to account for them in this proceeding.

From Chelsea division No. 12, of the Sons of Temperance, she has received $50. By the constitution and by-laws of that society, it is provided that in case of the death of a member, the sum of $50 shall be appropriated as a “funeral benefit” and shall be paid “ to the family of the deceased.”

From the Mamre Encampment I. O. of O. F., Mrs. Brooks received $40, the sum which under its constitution was payable upon her husband’s death as a “funeral benefit ” and “ to assist in defraying the expenses of burial.”

Eureka Encampment No. 177 I. O. O. F. paid her $100, that being the amount which in accordance with its constitution and by-laws was payable “ to the widow ” of a deceased member.

Mrs. Brooks received from the Fidelity Temple of Honor and Temperance the sum of $50. The by-laws of .that association provide that a sum no less than that shall be appropriated for the funeral expenses of a deceased member, and paid to the wife or immediate relatives, or expended by an officer of- the society in paying such bills as shall be contracted for a funeral.

The Chelsea Mutual Benefit Association, paid Mrs. Brooks $81, pursuant to one of its by-laws which provides that in the event of a death of a member, “ the sum of one dollar,” for each and every member shall be paid to the family of the deceased.”

I think that the referee has properly held, that the adminis-tratrix is not here accountable for any of these payments. It is well settled by numerous decisions that the disposition of moneys paid at a decedent’s death by benefit associations whereof he was a member, must be determined entirety by the constitutions and by-laws of such associations, and that such moneys are not assets of such decedent’s estate. Greeno v. Greeno 23, Hun, 478. Bown v. Catholic Mut. Ben. Ass'n, 33 Hun, 263. In re Palmer, 3 Dem. 129. Hellenberg v. B‘Nai Berith, 94 N. Y., 580.

Third. The referee has found that the administratrix is entitled to credit on account of sums paid out by her as funeral expenses. The testimony shows that within six months after the decedent’s death, his widow received from the four associations first above named, as “ funeral benefits ” and “ funeral expenses,” a sum for which in this account she claims credit.

It is true that at the time these moneys were received the funeral expenses had been fully satisfied, but I think nevertheless that their reception must be considered as a reimbursement to the administratrix of any sums previously expended by her in connection with her husband’s funeral. Leidenthal v. Correll, 5 Redf. 267.

Fourth. With the modifications above indicated the Referee’s report is confirmed.