accounts (Code Civ. Pro., § 2476, subd. 3; § 2735); that, independently
of the features of the Connecticut decree, he was not divested of
authority by the proceedings in that State; and that the motion must be
denied.

Id.

9. As to whether, under Code Civ. Pro., § 2741, permitting the Surio-
gate, on a judicial settlement of an executor's account, to allow him
"for property of the decedent perished or lost without the fault of the
accounting party," an executor can be allowed to prove his own title
to property placed by him on an inventory of, and for years treated
by him as belonging to decedent's estate, quære. Thorne v. Underhill,
306.

10. There is no rule which deprives an executor of commissions, or dimin-
ishes the same, because of the labor or expense requisite to put his ac-
counts into an intelligible form. Hill v. Nelson, 357.

11. One of two executors cannot be compelled to render, alone, his account
for judicial settlement. Hood v. Hood, 392.

12. Testator, by his will, directed the conversion of his property by his ex-
ecutors into a money fund, portions of which were to be invested, and
the income thereof applied to the use of his three minor children, re-
spectively, during minority, each child being entitled to payment of the
principal of his share on becoming of age. In 1869, on an application
made by two of the children, then adults, in their own behalf and
in behalf of the third child, B., then an infant, the exccutors rendered
an account of their proceedings as such, which was judicially settled by
a decree of the Surrogate's court. B., having attained majority in 1883,
presented a petition alleging that fact among others, and praying that
the executors be required to account. --Held, that, although the decrce
rendered in 1869 presumptively embraced all the matters as to which
the executors were liable to account (90 N. Y., 515), the termination of
petitioner's infancy was a new fact which rendered it proper that a fur-
ther accounting should be had. Id.

13. The rule contained in Code Civ. Pro., § 2734, permitting the allowance
of expenditures, not exceeding $500, in the aggregate, without vouch-
ers--applied. Tickel v. Quinn, 425.

14. It seems, that an "agent" of devisees under a will, has no standing, as
such, to petition for a judicial settlement of the account of the executor
and trustee. Boerum v. Betts, 471.

15. B., an executor of, and trustee under testator's will, was declared a
lunatic in April, 1882, and T. was appointed his committee. One F.,
alleging that he was an "agent" of the children of E., a deceased de-
visee, petitioned as such for a judicial settlement of the executor's ac-
count. His petition was filed July 19th, 1882. In the citation issued
thereupon, the name of B. was inserted by a person other than the clerk
who drew the same, and was served on B. less than eight days before
its return. No petition was filed, on the return day, in behalf of B.,
praying for a settlement. On July 21st, R., a cestui que trust under the
will, filed a petition to procure a judicial settlement of the executor's ac-

count. A citation was issued returnable July 31st, to the trustee and
to his committee, being served on the latter but not on the former. On
the return day, the proceeding was adjourned to Sept. 4th, and a sup-
plemental citation issued, returnable on that day, and which was served
on the trustee, but not on his committee. The latter filed an account
Sept. 11th, the trustee died Sept. 18th, and the proceeding was submitted
for a decree Sept. 25th. On Nov. 13th, the attorney for the children of
R. filed an appearance dated July 25th, but the children of E. had not
been cited nor appeared.-Held, that the court acquired no jurisdiction
over B., in the first proceeding, on account of the unauthorized insertion
in the citation, and the defective service (Code Civ. Pro., § 2520); that
the necessary parties were not before the court in the second proceeding;
that the same abated by B.'s death before submission; that no decree
could be made affecting his estate without bringing in his personal rep-
resentatives; and that, if they were brought in, the court could make
no such decree in these proceedings. Id.

16. It is not a valid objection to executors' account, that it does not show
the amount of the residuary estate, where it does show the amount of
such estate subject to deductions which can only be fixed at the entry of
the decree of settlement. Bullard v. Benson, 486.

17. It is not a ground for disallowing to an executor, upon his accounting,
the amount of a promissory note owing by decedent, paid by the ex-
ecutor to the payee, that the latter did not surrender the note upon re-
ceiving payment, where there is no proof that the note is in anybody's
hands, and no demand, founded thereupon, has been made within the
time for the presentation of claims under the executor's advertisement.
Gilman v. Wilber, 547.

18. A general guardian will be compelled to pay the costs of an accounting
where, although ignorantly and in good faith, he has pursued a course
which has rendered the litigation necessary to enable the ward to recov
er his rights. Cromwell v Kirk, 599.

See ABATEMENT; EXECUTORS AND ADMINISTRATORS.

ACCUMULATIONS.

1. The will contained the following clause: "The portion which shall be di-
vided or allotted to each of my daughters shall be designated in a deed
delivered to such daughter declaring the trust, but shall remain in the
possession of the trustees under this will, and be and continue her estate
at law during her natural life, and the interest, rents, issues and profits
only thereof shall be paid to her as they accrue during her natural life,
and shall not be at the control of her husband or subject to his debts,
but be to her sole and separate use." Murray v. Bronson, 217.
2. By a codicil, executed in 1838, in which testator declared that he supple-
mented his will thereby in order “that the same may be more conform-
able to existing laws" (R. S.), he gave directions that the interest,
rents, etc., of the portion of the estate allotted to any one of his daughters

"shall by said trustees be applied to the sole and separate use of each
daughter respectively for whom the same is holden in trust, and shall be
exempt from the control and debts of her husband, and on receiving a
receipt or discharge of any cestui que trust, executed under her hand to
them acknowledging a sum applied to her use, said trustees shall be
absolved from any further obligation in any way or manner to pay the
same sum." M., a daughter, dying intestate, there remained in the hands
of the trustees interest, rents, etc., over and above the sums paid to her,
exceeding $275,000. The question of the ownership of the accumulated
income in the hands of the trustees had been determined by a judgment
rendered by the supreme court, in an action brought by M., during her
. lifetime, against the trustees and all parties then interested in the
estate.-Held, that the matter was res adjudicata, the parties before the
Surrogate, who were not parties to such action, being privies of their
parents, who were parties to the latter; and that, accordingly, the sum
in dispute must be paid over to M.'s administrator as having belonged,
absolutely, to her at the time of her decease. Id.

3. A direction for the accumulation of rents, income, etc., of real or per-
sonal property "for the benefit of one or more minors then in being,"
must, in order to be valid under 1 R. S., 726, § 37, and id., 773, § 3,
provide for an accumulation exclusively for the benefit of the minors.
Gilman v. Healy, 404.

4. Under a valid direction for the accumulation of rents and income for the
benefit of a minor, the accumulation not only vests in the minor, but
on his attaining majority, vests in him absolutely, so as to be no longer
liable to be divested. Id.

5. Testator, who left both real and personal property, by his will, after mak-
ing certain bequests, gave all the residue of his property, real, personai
and mixed, to his executors, in trust, and by implication directed the
accumulation of a portion of the income and profits during the minor-
ity of his children, respectively. He then gave a vested remainder in
the trust property to his children, to take effect in possession at the end
of the trust term, subject to being divested as to each child by his or
her death without issue during said term; in case all his children
should die without issue during said term, he gave and devised the
residue, one quarter to his widow, if then living, and the balance to
his brothers and sisters then living or the issue of any that might be
dead, in equal proportions. All of the children having died during
the trust term, without issue, one during and the others after the ex-
piration of minority, a sister of testator claimed an interest in the ac-
cumulated income which accrued before the death of the last survivor
of the children.-Held, that such accumulations vested absolutely before
the substituted limitation took effect, and that the sister of testator took
a share of the corpus, only, of the estate. Id.

6. As to whether, if all the children of the testator had died without issue
during their minority, the accumulations would have passed to the
substituted legatees and devisees, quære. Id.

See WILL, 3.

ADMINISTRATOR.

See EXECUTORS AND ADMINISTRATORS; LETTERS OF ADMINISTRATION; PUB-
LIC ADMINISTRATOR.

ADMINISTRATOR WITH WILL ANNEXED.

1. An application for letters of administration, with the will of a decedent an-
nexed, made by one not primarily entitled, must, under Code Civ. Pro.,
§ 2644, be by a petition praying for the appointment of petitioner, and
for a citation to those having a prior right, to show cause against such
appointment; and the citation must be addressed to, and served upon
those having such right, who have not renounced. Batchelor v. Batch-
elor, 209.

2. A claimant, under a contract made with executors, is not a "creditor,"
within the provisions of Code Civ. Pro., § 2643, subd. 4, authorizing
the issuance, to a creditor, of letters of administration, with the will of
a decedent annexed. Fowler v. Walter, 240.

3. Decedent's sole surviving executor having died during the pendency of
an action brought, in 1880, against him and others, by the assignee of a
lease for 21 years, executed in 1859 by the executors, to determine the
rights of the parties under the lease and under an agreement supple-
mentary thereto, and for other purposes, the plaintiff petitioned the
Surrogate's court for the appointment of the public adininistrator, as
administrator with the will of decedent annexed, in order to enable the
action to be continued against the appointee. By the answer to the pe-
tition, it appeared that the will had been declared void by a judg-
ment of the Supreme Court in 1868, the executor discharged in 1869,
and the personal estate fully administered before the commencement of
such action.-Held, that the petition must be denied, on the grounds that
1. Petitioner had no standing in court, under Code Civ. Pro., § 2643,
being neither a person interested in the estate" nor a creditor" of
decedent. 2. The petition was defective, in not asking for the appoint-
ment of the petitioner therein; and the citation, in not being addressed
to the public administrator, who had a prior right. 3. The estate hav-
ing been fully distributed, there was no need of further administra-
tion. 4. Decedent having been adjudged to have died intestate, there
was no will, to be annexed to the administration asked for. Id.

4. The payment of a legacy is an executorial duty which devolves, where
the executor dies, upon an administrator with the will annexed. Kil
burn v. See, 353.

5. But where testatrix directed her executor to invest funds and apply the
income to the support of her son, with power, if the income proved in-
sufficient for that purpose, to use and apply so much of the principal as
might be needed,—Held, that the discretionary power to encroach upon
the principal died with the executor. Id. .

ADVANCEMENT.

1. While the word "advancement" is a technical term, and must ordinarily
be construed in its technical sense when used by a father in connection
with a testamentary provision for a child, a strict interpretation is not
always required, and may be sometimes quite inconsistent with sur-
rounding circumstances. Eisner v. Koehler, 277.

2. Testator's will gave the residuum, at the death of his wife, to his children
then living, and to the issue of such as might then have died, and
added: "but in such final distribution of my estate, any sum by way
of advancement theretofore received by any of my children, either from
me during my lifetime, or under the provisions of this my wil, shall be
deducted from the share of the one so receiving such advancement in
such manner that each of my children shall receive, including such
advancement, an equal share of my estate." M., a son and legatee,
having received from the executors payment of a portion of a legacy of
$10,000, petitioned for payment of the remainder. It appeared that he
had received from testator, during his lifetime, $5,000, which was
charged in the account books of the latter.-Hell, that this $5,000,
whether a loan or a gift, must be deemed an "advancement," within
the meaning of the provision quoted, so as to justify the executors in
paying the legacy, and in delaying, until the final distribution of the
estate, efforts to call petitioner to account for the sum so charged. Id.

AFFIDAVIT.

See COSTS, 11.

ALLOWANCE.

See COSTS.

ALTERATION OF WILL.

See REVOCATION OF WILL.

AMENDMENT.

An order, addressed to one individually, to show cause why he should not
be punished for contempt, for disobeying a Surrogate's decree, rendered
against him as an administrator, may, where the party is not misled, be
amended, or the mistake may be disregarded, under Code Civ. Pro., §§
723, 2538. Gillies v. Kreuder, 349.

ANCILLARY LETTERS.

1. The chief object of our statute as to ancillary administration of estates
(Code Civ. Pro., § 2695, etc.) is to protect the claims of creditors resid-
ing in this State. Moyer v. Weil, 71.