ZAHRT V. ZAHRT. 2796 provides that, where the interest in the property represented by such surplus consists of a precedent estate, and a remainder or reversion, the decree must provide, as the judgment of the Supreme Court would provide, in an analogous case, for the investment of the money in certain securities, and for the payment of the income un til the determination of the temporary interest, and then for the payment of the principal to the person or persons entitled thereto. It is unnecessary to discuss how far the rule of practice above referred to can be allowed to interfere with the rights and interests of infant devisees or legatees; it is sufficient to say that it was not intended to apply to cases where the distribution of the fund in court is expressly provided for by statute (Banks v. Banks, 2 T. & C., 483). Here the statute points out what the decree must contain on the subject, and the Rule cannot be invoked to authorize a departure from the terms of the statute. This same statute authorizes the payment, to the widow, of a sum in gross, in lieu of her right of dower in the fund to be distributed (§ 2793, subd. 3); and if the legis lature had so intended, it no doubt would have made a similar provision in regard to the owner of a life estate. In Arrowsmith v. Arrowsmith (8 Hun, 606), the Surrogate in his decree had adjudged that the husband's life estate, as tenant by the curtesy, in the lands sold to pay the debts of his wife, was worth the sum of $1,110.69 and had directed that that amount be paid from the proceeds of sale to a judgment creditor of the husband, and the balance, after deducting the expenses of the proceeding, to the heir-at-law of the intestate. The Supreme Court, at General Term, in discussing the disposition which the ZAHRT V. ZAHRT. Surrogate was authorized to make of the surplus proceeds of sale remaining after the payment of the deceased's debts, and the expenses of the proceeding in his court, under chapter 150 of the Laws of 1850, which is revised in § 2796 of the Code, say: "Under § 55 of the statute relating to the proceedings of the Surrogate in such cases. (3 R. S., m. p. 107 [6th ed., 116]; and chap. 150, Sess. Laws 1850, p. 315), he might order the investment of such moneys on the ground that the respondent was entitled to the interest thereof during his life, but he could not pay them to him or to the heir, who would only have been entitled to the reversion of the land sold and represented by such money, upon the termination of the life estate." See, also, what was said by the learned Surrogate of Westchester county, in the Matter of Igglesden (3 Redf., 375, 378). The statute expressly requiring that the Surrogate's decree, in a case like this, must provide for the investment of the fund, the payment of the income arising therefrom, and the payment of the principal upon the termination of the life estate, the decree must conform to these directions. ON the settlement of the findings in October, 1882, the question arose whether the widow's interest in the surplus moneys should be applied to the payment of the interest and taxes which became due on the mortgaged premises since the death of the testator and were paid out of the proceeds of sale. THE SURROGATE.-By the terms of the will, the widow MATTER OF LANGBEIN. was to pay said interest and taxes, and, as between her and the remaindermen, therefore, her estate and not theirs in the devised property was liable for the payment of the said liens, and since they were paid from the principal of the proceeds of sale which belonged to the remaindermen, the latter are entitled to have the amount repaid out of the income from the surplus moneys which belongs to the widow during her life. Decreed accordingly. KINGS COUNTY.-HON. W. L. LIVINGSTON, SURROGATE.-September, 1882. MATTER OF LANGBEIN. In the matter of the estate of JOHN LANGBEIN, deceased. Code Civ. Pro., § 2695, which relates to the grant of ancillary letters on foreign probate, applying only to wills of personal property, it is not necessary upon an application under that section, to show that the will in question was executed according to the laws of this State, It is not indispensable, to a grant of such letters, that letters testamentary should have been granted upon the will, in the state where it was admitted, but the petition must show that the Surrogate has jurisdiction, within the provisions of Code Civ. Pro., § 2476. In order to justify the recording, pursuant to Code Civ. Pro., § 2703, of a will of real property, executed by a resident of another state or territory, the proofs taken on the foreign probate must show that the will was executed according to the laws of this State. Accordingly, where the witnesses, on the probate of such a will of real property before the Register in Philadelphia, where the will was proved, were described in the record as subscribing witnesses, but it did not appear that they signed the will as such, at the request of the testator,Held, that the will could not be recorded under the last named section; and that the defect was not cured by their appearing before such officer, MATTER OF LANGBEIN. and testifying to such fact, several months after the admission of the will, as such testimony formed no part of the proof on which probate was granted. JACOB LANGBEIN and Joseph Braun, residing in the city of Brooklyn, presented a petition alleging that, on March 31st, 1882, decedent's will and codicil, naming petitioners as executors, were admitted to probate in Pennsylvania, where they were executed, and where testator resided at the time of the execution; that they were recorded in that state, and that no letters testamentary had been granted thereon because testator left no real or personal property in that state, and praying that the will and codicil be admitted, and for ancillary letters testamentary, and for a citation. An exemplified copy of the record was annexed to the petition. They also applied to have the will and codicil recorded as a foreign will of real estate. Further facts are stated in the opinion. GEORGE GRU, for the application. THE SURROGATE.-The application for ancillary letters testamentary under § 2695 of the Code will first be considered. That section applies only to a will of personal property, and it is not necessary, therefore, that it should appear that the will was executed according to the laws of this State. No letters testamentary were issued in the state of Pennsylvania, where the said will and codicil were admitted to probate; but that does not seem to be indispensable (In re Wise, Ms. Op. in this court [June 8th, 1881]). The petition, however, on which the application is made, VOL. I.-29 MATTER OF LANGBEIN. must show that the Surrogate's court to which it is presented has jurisdiction of the estate of the testator (Code, 2695). The petition does not state whether the testator died within or without the State, or, if he died without the State, that he left personal property within the county of Kings and no other, or left personal property which has, since his death, come into that county and no other, and remains unadministered (Code, § 2476). As a will of real estate, before an exemplified copy of it can be recorded here, it must appear that it was executed according to the laws of this State (Code, § 2694, 2703; Estate of Shearer, 1 Civ. Pro. R., 455). This is in conformity with the well settled principle of law, adopted in the above sections of the Code, that a foreign will, disposing of real estate situated here, must be proved to have been executed according to the laws of this State. Consequently, it is provided that an exemplified copy of the proofs on which the will was admitted to probate, if there be any, must be recorded in the Surrogate's office, with the exemplified copy of the will (Code, § 2703), which, as we have said, is not the case in regard to a will of personal property (Code, § 2695); and the record, in the Surrogate's office, of the exemplified copy of the foreign probate is made presumptive evidence of the will and of the execution thereof, in any action or special proceeding relating to the real property (Code, § 2703). The record of the foreign probate in the Surrogate's office is thus made equivalent to proving the will here (Bromley v. Miller, 2 T. & C., 575). It is clear, therefore, from all these provisions, that the proofs taken on the foreign probate, if any have been recorded or filed, must show that the will was executed |