2. As to whether, in cases of such administration, a Surrogate's court of the
State has jurisdiction to pass upon or direct payment of the claims of
foreign creditors, or of legatees or distributees, quære. Id.
3. 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. Matter of
Langbein, 448.
4. 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 ad-
mitted, but the petition must show that the Surrogate has jurisdiction,.
within the provisions of Code Civ. Pro., § 2476. Id.
See LETTERS OF ADMINISTRATION; LETTERS TESTAMENTARY.
See PAYMENT OF LEGACY, 13; WILL, 2, 4, 5, 6, 11.
See PAYMENT OF LEGACY, 1, 3; PROBATE OF WILL, 9.
1. The question of the status of an appellant, as such, is a matter for de-
termination by the appellate tribunal. Sudlow v. Pinckney, 158.
2. In the absence of a direction by the appellate court, a Surrogate's
court has no authority to compensate a special guardian appointed by it,
for services rendered on an appeal from its determination.
Hewitt, 249.
3. A Surrogate's court has no power to make an order allowing the interven-
tion of new parties to a contest over the probate of a will, where a de-
cree has been rendered in the matter, and an appeal therefrom is pend-
ing. Matter of Dunn, 294.
4. Code Civ. Pro., § 2573, preserving the former rule, requires the applica
tion for such an order to be made to the appellate court, which has
ample power in the premises, also by virtue of id., § 452. Id.
5. It seems, that, where an executor appeals individually from the decree of
a Surrogate's court declaring void a legacy attempted to be given to him
in the will of his testator, and directing him to distribute the amount
among the next of kin, an undertaking filed by him in the sum of $250,
under Code Civ. Pro., § 2577, is sufficient; and an additional undertak-
ing, under id. §§ 2578, 2580, is not requisite to stay execution. Du Bois
v. Brown, 317.
See CONTEMPT, 1; Costs, 7; PAYMENT OF LEGACY, 9.
1. Testator, by his will, devised his real property, which was mortgaged, to
his wife for life, with remainder to his five infant children, directing
that the wife should pay interest and taxes during her lifetime. The
property having been sold under foreclosure after testator's death,
whereupon the taxes and interest were paid out of the proceeds of sale,
on an application to the Surrogate for a distribution of the surplus of
such proceeds,-Held, that the remaindermen were entitled to have the
amount so paid repaid out of the income of the surplus belonging the
widow for life. Zahrt v. Zahrt, 444.
2. The proper rule of apportionment, as between life tenant and remainder-
men, of expenses attending upon real property,-as ordinary taxes, suc-
cession tax, ordinary and extraordinary repairs, insurance premiums,
etc., etc., declared. Cromwell v. Kirk, 599.
1. Upon the judicial settlement of the account of an administratrix, objec-
tions having been interposed by decedent's husband, which the admin-
istratrix contended should be ignored on the ground that objector
had executed to her an assignment of all his interest in his wife's es-
tate, and objector replying that this assignment was procured by fraud,
-Held, that the Surrogate had no jurisdiction to inquire into and de-
termine the validity of the assignment in question; that, notwithstand-
ing its lack of jurisdiction, the proceedings should not, on the one hand, be
conducted to a final decrce, as if the objections had not been filed, while,
on the other hand, the court was not bound to postpone an investiga-
tion into the correctness of the accounts until an adjudication by a com-
petent tribunal on the question of such validity; but such investigation
should proceed, and objectors be allowed to take part therein, on inter-
posing allegations of fact disputing the validity of the assignment, and
averring that, but for such assignment, objector would be entitled to an
interest or share in the estate. Bauer v. Kastner, 136.
2. The provision of Code Civ. Pro., § 2739, permitting the Surrogate, upon
the judicial settlement of an executor's or administrator's account, to
determine certain contests between the accounting party and any of the
other parties, is too narrow to include the case of a dispute over the
validity or effect of an assignment from the latter to the former. Id.
See DISPUTED CLAIM, 9; RELEASE; WILL, 6.
See CORPORATION, 3; PROBATE OF WILL, 12.
See ACCOUNTING, 17; LEGACY, 8.
See COMMISSIONS, 6; OFFICIAL BOND; UNDERTAKING.
See DISCOVERY AND INSPECTION.
See PROBATE OF WILL; TESTAMENTARY CAPACITY; UNDUE INFLUENCE.
CASES APPROVED, COMMENTED UPON, COMPARED, DISTIN
GUISHED, FOLLOWED.
Adair v. Brimmer, 74 N. Y., 539, followed. Slack v. Wiggin, 568.
Allen v. Pub. Administrator, 1 Bradf., 221, approved. Whelpley v. Loder,
368.
Arrowsmith . Arrowsmith, 8 Hun, 606, compared. Zahrt v. Zahrt, 444.
Bank of Poughkeepsie e. Hasbrouck, 6 N. Y., 216, distinguished. Gilman
v. Wilber, 547.
Boone v. Cit. Sav. Bank, 84 N. Y., 83, distinguished. Kilburn v. See, 353.
Boughton r. Knight, Law Rep. (3 P & D.), 68, approved. Phillips v.
Chater, 533.
Bronson . Bronson, 48 How. Pr., 481, followed. Murray v. Bronson, 217.
Chase v. Ewing, 51 Barb., 597, compared. Eisner v. Koehler, 277.
Clarke . Leupp, 88 N. Y., 228, distinguished. Cromwell v. Kirk, 383.
Delafield e. Parish, 25 N. Y., 1, compared. Sheldon v. Dow, 503.
De Witt r. Schoonmaker, 2 Johns., 244, compared. Brittin v. Phillips, 57.
Everitt e. Everitt, 41 Barb., 385, distinguished. Hatch v. Sigman, 519.
Gilman v. Reddington, 24 N. Y., 9, distinguished.
Grymes v. Hone, 49 N. Y., 17, followed. Kurtz v. Smither, 399.
Hall v. Hall, 78 N. Y., 535, distinguished. Hall v. Campbell, 415.
Hatfield v. Sneden, 54 N. Y., 280. Cromicell v. Kirk, 383.
Howard v. Dougherty, 3 Redf., 535, approved.
Lawrence v. Lindsay, 58 N. Y., 108, compared.
Thorne v. Underhill, 306.
Lovell v. Quitman, 88 N. Y., 377, followed. Gugel v. Vollmer, 484.
Matter of Carman, 3 Redf., 46, followed. Hall v. Campbell, 415.
Matter of Mace, 4 Redf., 325, followed. Matter of Sexton, 3.
Meserole v. Meserole, 1 Hun, 66, distinguished. Gilman v. Healy, 404.
Orton r. Orton, 3 Abb. Ct. App. Dec., 415, followed. Tickel v. Quinn, 426.
Palmer . Horn, 84 N. Y., 516, distinguished. Murray v. Bronson, 217.
People, ex rel., v. Riley, 25 Hun, 587, distinguished. Ferguson v. Cummings,
433.
Rich r. Husson. 1 Duer, 617, approved. Matter of Sexton, 3.
Riegelman v. Riegelman, 4 Redf., 492, compared.
Russell . Russell, 36 N. Y., 581, distinguished.
Shields r. Shields, 60 Barb., 56, followed. Ballard v. Charlesworth, 501-
Horey v. Mc Lean, 396.
Smith . Lawrence, 11 Paige, 206, followed.
Riegelmann v. McCoy, 86.
Dennis v. Jones, 80.
Ward . Ford, 4 Redf., 34, followed. Hall v. Campbell, 415.
Wheeler . Lester, 1 Bradf., 213, distinguished. Brittin v. Phillips, 57.
Wright . Fleming, 76 N. Y., 517, commented upon. Fraenznick v. Miller,
See RATIFICATION; TESTAMENTARY TRUSTEE; TRUSTEE.
CHARITABLE BEQUESTS.
See PROBATE OF WILL, 12.
1. It seems, that, under Code Civ. Pro., § 2647, relating to revocation of pro-
bate of a will upon petition, and providing that, "upon the presentation
of
a petition, the Surrogate must issue a citation accordingly,"
it is the duty of that officer, at once, upon the presentation of the peti-
tion, to issue the process appropriate to the case. Pryer v. Clapp, 387.
2. The insertion, in a citation, of the name of a party to be served, by a per-
son other than the clerk who made out the same, prevents the acquire-
ment of jurisdiction by the Surrogate's court over such party, by reason
of the service thereof. Boerum v. Betts, 471.
3. Service of a citation less than the eight days prescribed by Code Civ.
Pro., § 2520, before the return day, gives the court no jurisdiction. Id.
See PETITION; REVOCATION OF PROBATE, 3; SALE OF REAL ESTATE, 5.
CODE OF CIVIL PROCEDURE.
[Sections construed or cited.]
§ 15. Gillies v. Kreuder, 349.
§ 424. Pryer v. Clapp, 387.
§ 452. Matter of Dunn, 294.
§ 723. Gillies v. Kreuder, 349.
SS 812, 813. Trask v. Annett, 171.
§ 829. Scherrer v. Kaufman, 39.
$829. Whelpley v. Loder, 368.
§834. Whelpley v. Loder, 368.
$835. Whelpley v. Loder, 368.
§ 1310. Sudlow v. Pinckney, 158.
§ 1365. Disosway v. Hayward, 175.
§ 1369. Disosway v. Hayward, 175.
§ 1381, subd. 2. Gillies v. Kreuder, 349.
§ 1825. Hauselt v. Gano, 36.
SS 1832-1834. Thorne v. Underhill, 306.
§ 1861. Hatch v. Sigman, 519.
§ 1865. Hatch v. Sigman, 519.
§ 2472. Brittin v. Phillips, 57.
§ 2472. Guion v. Underhill, 303.
§ 2472, subd. 3. Thompson v. Mott, 32.
§ 2476. Matter of Langbein, 448.
Duffy v. Smith, 202.
11. Guion v. Underhill, 303.
Melcher v. Stevens, 123.
Pryer v. Clapp, 387.
§ 2485. Gillies v. Kreuder, 349.
§ 2514, subd. 11. Stapler v. Hoffman, 63.
§ 2517. Pryer v. Clapp, 387.
§ 2520. Boerum v. Betts, 471.
§ 2537. Zahrt v. Zahrt, 444.
§ 2538. Gillies v. Kreuder, 349.
§ 2552. Gillies v. Kreuder, 349.
S$ 2553, 2554. Disosway v. Hayward, 175.
§ 2555, subd. 4. Ferguson v. Cummings, 438.
§ 2556. Stokes v. Dale, 260.
2557, et seq. Matter of Sexton, 3.
§ 2558. Forster v. Kane, 67.
§ 2558, subd. 3. Bertine v. Hubbell, 335.
§ 2558, subd. 3. Whelpley v. Loder, 368.
§ 2561. Forster v. Kane, 67.
§ 2561. Gillies v. Kreuder, 349.
§§ 2561, 2562. Walton v. Howard, 103.
S$ 2561, 2562. Du Bois v. Brown, 317.
§§ 2561, 2562. Hall v. Campbell, 415.
§ 2566. Schell v. Hewitt, 249.
§ 2573. Matter of Dunn, 294.
§ 2577. Sudlow v. Pinckney, 158.
§ 2577-2580. Du Bois v. Brown, 317.
§ 2589. Schell v. Hewitt, 249.
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