GILMAN V. WILBER.

that he should be charged with the loss which resulted from his continuing the school until the close of the term. The institution was organized with a corps of teachers selected by Mrs. Benedict herself.

For six months or more, in consequence of her illness, it had been conducted without her personal supervision. The tuition of most of her pupils had been paid for in advance, and a portion of the instruction for which she had been rewarded was due to them at her death.

It is an interesting and somewhat doubtful question whether the contracts between Mrs. Benedict and her patrons, which were entire for a school year, were such as the executor was legally bound to fulfil. This question, however, need not be here decided. For, in the exercise of reasonable discretion, the executor might well have believed that it was for the best interests of the estate that he should take the course which he in fact pursued, and it is by no means plain that his conclusion was not entirely correct. He was under the necessity of deciding promptly. It does not appear that he was then in a position to discover whether or not the estate was solvent, and he might well have believed that a sale, whenever it might be effected, would prove far more advantageous if the school was then in operation than if it had ceased to exist.

It is not claimed that there was any extravagance in the economy of the household or in the management of the school; and, for the reasons urged by executor's counsel, the retention of the premises for a brief period after the close of the term does not seem seriously objectionable.

It appears that one Bloom held a note for $2,200 and

GILMAN V. WILBER.

interest, signed by decedent and her husband, and secured by a mortgage on the furniture of one and the library of the other. Upon the evidence, I find that Mr. Benedict signed the note as surety; a fact which it was competent to prove by parol testimony (Hubbard v. Gurney, 64 N. Y., 457). The furniture and property of Mrs. Benedict being sufficient to pay this note, there was no occasion for resort to Mr. Benedict's library, and indeed no right of so doing until the other remedy was exhausted.

The counsel for the objector claims, however, that the executor should be disallowed the amount paid to Bloom, because it was not proved that the note was given up at the time the mortgage was discharged.

Bloom testified that, at the time of the payment, he surrendered the note. The executor thinks otherwise. The Court of Appeals held, in Bank of Poughkeepsie v. Hasbrouck (6 N. Y., 216), under circumstances which it characterized as "doubtful and suspicious," that payment of a note by an executor to the payee thereof who did not surrender it, did not protect the executor when he was afterwards sued by a bona fide holder for value, even though he had duly advertised for claims, and though the note was not presented for payment within the time limited by the advertisement.

This case is relied on by the exceptor's counsel, but is not, it seems to me, pertinent to the present contention. Here there is no proof that the note is in the hands of an innocent holder for value, or in anybody's hands; and even if it is, as no demand has been made within the time for the presentation of claims under the executor's advertisement, even a bona fide holder can find no relief out of the property which is embraced in the present ac

HOYT V. JACKSON.

counting. It may be added that, if decedent's husband had himself paid Bloom's claim, he would have been subrogated to the rights of the mortgagee, and could have insisted upon such rights, as against the assets of the estate. He would not have been remitted to the position of a simple creditor.

Without reviewing in detail the other objections to the auditor's report, I declare my concurrence in all his conclusions.

The report is therefore confirmed, and a decree may be entered accordingly.

NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-January, 1883.

HOYT V. JACKSON.

In the matter of the estate of JESSE HOYT, deceased.

Upon an application to the Surrogate's court, under Code Civ. Pro., § 2719, for an advance upon a legacy, made before the expiration of a year from the grant of letters testamentary, the provision of that section that the advance must be "necessary for the support or education of the petitioner" is a limitation upon the authority of the court, which cannot be ignored. But where petitioner, if decedent had died admittedly intestate, would have been entitled to his entire estate, which undisputedly exceeds greatly the aggregate amount of such legacies and all prior and equal claims, and has no other income, this limitation may receive a liberal construction.

The section cited requires that a sum advanced on a legacy, upon a petition presented within the year specified, should not exceed the full amount of the petitioner's legacy or pecuniary provision under the will, and where such provision is the income of a trust fund, the limit is the amount of income earned by such fund at the time of the application for relief.

HOYT V. JACKSON.

Where the will directs the establishment of a trust fund, of a specified amount, for the benefit of petitioner, to be created out of the investments of the estate, the legal rate of interest is not a test of the income, for the purpose of computing the proportion of a legacy which may be advanced under the section cited.

THIS was a petition, presented by decedent's widow and daughter, within a year after the granting of letters testamentary upon his will, for a decree directing James W. Jackson and others, the executors, to advance to each of petitioners $25,000, "to be charged against them as legatees or heirs, as the case may be, depending on the result of the contest touching said will." When this petition was presented, no appeal had been taken from the decree admitting the will to probate, nor had any petition been presented for the revocation thereof. Further facts are stated in the opinion.

ROSCOE CONKLING and AARON KAHN, for petitioners.

WM. M. EVARTS and ELIHU ROOT, for executors.

THE SURROGATE.-This is an application for a decree directing the executors of decedent's estate to pay to Helen M. Hoyt, his widow, and Mary I. Hoyt, his daughter (for both of whom pecuniary provision is made by an instrument which has been admitted to probate as his will), the sum of $25,000 each, or such other sum as may seem just and proper.

The matter has once before been submitted for decision, but the court declared itself unable to determine, upon the evidence, to what extent relief could legally be granted within the restrictions of sections 2717, 2718, 2719 of the Code of Civil Procedure, from which its jurisdiction in such a proceeding as the present is solely derived.

HOYT V. JACKSON.

It was accordingly determined that the matter should be sent to a reference, or, in the alternative, that the application as then presented should be dismissed without prejudice to its renewal on other motion papers. At the suggestion of petitioner's counsel, this decision was modified so as to keep alive the original petition, and to permit the filing, in its support, of additional affidavits. Those affidavits, together with the answers of the executors and other papers which are now before me, supply to some extent the evidence necessary for the proper determination of this motion. But the original petition and answer, even as thus supplemented, fail in an important particular to afford certain information, which is essential to the just disposition of the matter here at issue.

As I have before intimated, those sections of the Code which have been already cited, contain two limitations upon the authority of the Surrogate which cannot be ignored.

First. Whatever sum is allowed an applicant before the expiration of a year from the issue of letters testamentary, must be " necessary for the support or education of

the petitioner" (§ 2719).

Second. That sum should not exceed the full amount of the petitioner's legacy or pecuniary provision under the will, and in cases where, as here, the will bequeaths the income of a trust fund, such sum should not exceed the amount of the income which such fund has earned at the time the application for relief is presented.

Now, as to the first of these limitations, I feel justified, under all the circumstances of this case, in giving to the phrase, "necessary for the support of the petitioner," a liberal construction.