SHAW V. SHAW. N. Y., 157; Neiheisel v. Toerge, 4 Redf., 332; Cudney v. Cudney, 68 N. Y., 148; Sisson v. Conger, 1 Thomp. & Cook, 569. See also Griffith v. Diffenderfer, 5 Md., 480; Hayes v. West, 37 Ind., 24; Dickie v. Carter, 42 Ill., 388). The slightest reflection shows the folly and injustice of departing from this well settled doctrine. A wide door would at once be opened for those very mischiefs, whose prevention was one of the most important aims, and has been one of the most satisfactory results of our statute of wills. If a written instrument, duly signed, attested and published as a will, can be denied probate upon the mere disclosure of its maker's verbal declarations assailing its validity, the legal formalities attending the execution of such an instrument are robbed of their seriousness and significance. The power of making nuncupative wills is now limited by law to soldiers in service and mariners at sea. The power of revoking wills by nuncupation neither has nor ought to have any wider range. Our statutes expressly prescribe the formalities by which alone, except by its actual destruction, a testator who has once made a valid will can deprive it of validity. And it would be a practical violation of the letter, as well as of the spirit of that statute, to sustain the claim of the petitioner in the case at bar. I find, therefore, in the absence of evidence establishing that Mrs. Shaw was led by any restraint or undue influence to execute this instrument, that it is, as it purports to be, her last will and testament. Decreed accordingly. MUMFORD V. CODDINGTON. NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-June, 1882. MUMFORD V. CODDINGTON. In the matter of the estate of BENJAMIN A. MUMFORD, de ceased. Upon an application, under Code Civ. Pro., §§ 2717, 2718, by the administrator of a deceased legatee, for the payment of the legacy, the executor filed an answer alleging that the legatee in his lifetime had assigned his legacy, and that the assignee had received from the estate the amount applicable thereto. Held, a sufficient denial, under the statute, of the validity and legality of petitioner's claim, and that the petition must be dismissed. APPLICATION for an order directing the payment, by T. B. Coddington, surviving executor of decedent's will, of a legacy to Benjamin C. Mumford, administrator of the estate of decedent's son and legatee, Frederick A. Mumford. The facts appear sufficiently in the opinion. SAMUEL J. CROOKS, for the applicant. NASH & KINGSFORD, for the executor. THE SURROGATE.-The decedent died in 1864, leaving a will by which a portion of his estate was given to his son Frederick. In 1871, Frederick made to one Melick an assignment, under seal, of his interest in his father's estate to the extent of $1,500. Notice of this assignment was seasonably given to the executors. Frederick died intestate in 1879. During the next year, the executors came into possession of certain moneys (less than the assigned $1,500), which formed a part of Frederick's share under his father's will. These moneys the assignee MUMFORD V. CODDINGTON. demanded of the executors, but, pending the negotiations about the matter, Melick assigned his claim to another. To this second assignee has recently been transferred the sum of $1,379, being the precise amount in the hands of the surviving executor, payable to Frederick's representatives or assigns. In this condition of affairs, Frederick's widow, who has intervened herein, asks that Benjamin's executor be directed to pay to the administrator of Frederick's estate a like amount of $1,379, upon the ground that the transfers above named were practically worthless, in view of the fact that, when Frederick executed the first assignment, he had really nothing to assign. It might well be doubted, even in the absence of the statutory restrictions to which I shall presently refer, whether the Surrogate had the authority in a proceeding like the present to determine a controversy between one claiming to hold an assignment from a legatee, and the legatee himself. Decker v. Morton (1 Redf., 484). But, however this may be, the provisions of the Code seem to be conclusive in the matter. Section 2718 declares that a proceeding, such as this, must be dismissed, "where the executor files a written answer duly verified, setting forth facts which show that it is doubtful whether the petitioner's claim is valid and legal, and denying its validity or legality, absolutely or upon information and belief." Now, the answer of the executor herein substantially denies the validity of the administrator's claim, and discloses the facts which have been already specified, and which certainly create serious doubts whether that claim is well founded. The motion must be denied. Ordered accordingly. LE COUNT V. LE COUNT. NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-June, 1882. LE COUNT V. LE COUNT. In the matter of the estate of JOHN R. LE COUNT, deceased. The accounting which a surrogate's court may exact, under Code Civ. Pro., 2606, from the personal representative of a deceased executor or administrator, upon the petition of the latter's successor, does not extend to all the property of the first decedent which came into the possession or under the control of petitioner's predecessor, but only to such of the trust property as has come into the possession or is under the control of the accounting party. Accordingly, where, pending an accounting under that section, the successor of the deceased executor asked that the accounting party be required to produce and discover certain books and vouchers under her control, upon an allegation that the deceased executor kept such books and vouchers, and that an inspection thereof would show what amount was due from him as executor, at the time of his death, which amount petitioner alleged to be $20,000, Held, that the allegations did not justify the issuance of the order prayed for, since the accounting party could not be held responsible, in that proceeding, for her testator's indebtedness as executor, and, it was, therefore, fruitless to inquire into the nature and extent thereof. APPLICATION by Sarah Le Count, the successor of decedent's executor, to compel the production of books and papers by Mary H. Le Count, the executrix of such executor. The facts appear sufficiently in the opinion. WM. L. COWDREY, for Sarah Le Count. JOHN H. PARSONS, for Mary H. Le Count, THE SURROGATE.-By the will of the decedent, who died in 1850, William V. Le Count was named as his LE COUNT V. LE COUNT. executor, and this petitioner, Sarah Le Count, as his executrix. The former qualified at once, and he alone managed the affairs of the estate until his death in 1880, after which letters testamentary were granted to this petitioner as his successor. The respondent, Mary H. Le Count, wife of William, qualified as executrix of her husband in May, 1881. She has been recently cited by the petitioner, in accordance with the provisions of section 2606 of the Code of Civil Procedure, "to account for and deliver over any of the trust property" (i. e., any property belonging to John R. Le Count's estate) "which has come to her possession or is under her control." Proceedings upon this accounting are pending. The court is now asked by the petitioner to require William's executrix to produce and discover certain books and vouchers, of which she has control, and to deposit the same with the referee. It is not alleged that these documents contain the record of any transactions of the respondent, or that they disclose what assets of John Le Count's estate, if any, have "come to her possession or are under her control." The petition simply declares that William, as executor, kept these books of account and vouchers showing his management of his testator's estate, and that an inspection thereof will show what amount was due from him as executor at the time of his decease. Now, these allegations do not seem to me to justify the issuance of the order prayed for. So far as relates to any proceedings now pending in this court, it is quite immaterial whether, at the end of his thirty years' stewardship, William Le Count was or was not indebted to the estate in the sum of $20,000, as the petition declares him to have been, and whether any evidence of such indebted |