Cestuis que trust are so subordinated to, and dependent on their trustee that they should not be held bound by any act of his to which they have as- sented, except upon the clearest evidence that such assent was based upon a full knowledge of all the facts and circumstances. Arthur v. Nelson, 337.
See EXECUTORS AND ADMINISTRATORS, 10; TRUSTEE.
1. 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 ter- ritory, the proofs taken on the foreign probate must show that the will was executed according to the laws of this State. Matter of Langbein, 448.
2. 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, 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. Id.
1. Under R. S., part 2, ch. 6, tit. 3, § 36, providing for the reference of dis- puted claims against a decedent's estate "to three disinterested persons, or to a disinterested person, to be approved by the Surrogate,”—unless the parties have agreed upon some person or persons to act as referee at the time when application is made to the Surrogate for his approval, or, not having agreed, they consent to accept such person or persons as the Sur- rogate may select,-he has no authority to make the selection. Tüney V. Clendenning, 212.
2. Respondent made this offer to decedent's executors: "I hereby offer to refer my claim against the estate of ... deceased, as pro-
vided by law. Will you consent to such reference?" The executors'
counsel replied: "I am instructed by the executors of deceased, to inform you that they hereby consent to refer the claim," etc., etc. (specifying it). An order of reference was, thereupon, pre- sented to the Surrogate, who signed the same, inserting therein the name of a referee. This order having been filed with the county clerk, and a copy served upon the executors' counsel, they moved before the Surrogate to set it aside, on the ground that the application therefor was ex parte, and preceded by no effort of counsel to agree in the selec- tion of a referee.--Held, that the order must be set aside, as improvi- dently entered, because (1) the statute confers upon the Surrogate no power to make any order in the premises, and, (2) the parties having neither agreed to abide by the nomination of the Surrogate, nor united in presenting to him any name or names for his approval, his designa- tion was invalid. Id.
3. It seems, that, under the provision of the R. S., cited, the Surrogate is not empowered to decide whether one person or three persons should be chosen to pass upon the disputed claim. Id.
1. Upon the judicial settlement of executors' account, objections having been interposed by a legatee, which the executors contended should be ignored, on the ground that objector had executed a release ex- tinguishing her interest in the estate, and objector replying that the re- lease was void for fraud in its procurement,-Held, that the Surrogate had no jurisdiction to inquire into and determine the validity of the release in question; that, notwithstanding its lack of jurisdiction. the proceedings should not, on the one hand, be conducted to a final decree, as if the objections had not been filed, while, on the other hand, the court was not bound to postpone an investigation into the correct- ress of the accounts until an adjudication by a competent tribunal on the question of such validity; but such investigation should proceed, and objectors be allowed to take part therein, on interposing allegations of fact disputing the validity of the release, and averring that, but for such release, objector would be entitled to an interest or share in the es- tate. Fraenznick v. Miller, 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 a release from the latter to the former. Id.
3. A release, by a legatee, to the executor, of his interest as such, removes
all objections to his competency, on the ground of interest, as a witness in proceedings for probate of the will. Whelpley v. Loder, 368.
See ASSIGNMENT; DISPUTED CLAIM, 8.
1. Decedent's alleged will contained no disposition except a devise of real property, and named no executor. Pending a contest over its pro- bate, and after September 1st, 1880, an order was made by the Surro- gate's court of New York county, on consent of all parties, authorizing a trust company to collect the rents of the devised premises. During the pendency of an appeal to the Court of Appeals from a judgment of the Supreme Court affirming a decree admitting the will to probate, the alleged devisee petitioned the Surrogate's court for an order directing said trust company to pay over to herself the rents collected by it.- Held, 1. That the original order, authorizing the collection of the rents, was void, there being no possibility of the delay, specified in the statute as the necessary condition of its issuance. 2. That, though the court might vacate its void order, it had no power, under any provision of the statute book, to supplement such vacation by granting the peti- tion, and that the prayer thereof must be denied. Tooker v. Bell, 52. 2. An executor who takes no estate, under the will, in testator's real prop- erty, cannot be called to account in the Surrogate's court, in his capac- ity as executor, for rents of such property collected by him. Terry v. Bale, 452.
See ACCUMULATIONS, 1; APPORTIONMENT, 1, 2; PROBATE OF WILL, 1.
1. A debtor to the estate of a decedent is not a “person interested" therein, within the meaning of the provision of that section permitting a person so interested to apply for the revocation of letters issued to one as ex- ecutor of decedent's will. Drexel v. Berney, 163.
2. It seems, that there is no statutory provision under which one whose rela- tion to such an estate is that of a debtor or possible debtor thereto can be recognized as entitled to be heard in opposition to a grant of letters thereon; and claims for the revocation of letters should not receive more favorable consideration than objections to the grant thereof. Id.
3. It seems, that an executor is a person interested in the estate of his testa- tor (see Code Civ. Pro., § 2685), for the purpose of applying for the re- vocation of letters testamentary issued to one as his co-executor. Has- sey v. Keller, 577.
1. The will of decedent was executed by her, with the requisite formalities, more than two years before her death, when at an advanced age, but in possession of her mental faculties, and was admitted to probate in 1881. On an application by a son of decedent, against whom the will discriminated, to revoke the probate thereof, substantially the only support to the assault on the will was the testimony of the wife of a son preferred in the will, as to parol declarations of decedent to the effect that she regretted having made it; that she could have peace in no other way; that her daughter Helen was cranky by spells, and would have made decedent uncomfortable if she had insisted on an equal distribu- tion. It appeared that this witness was biased against her husband and the other supporters of the will.-Id, that, decedent's capacity not having been substantially questioned on the hearing, this evidence must have been rejected on objection made, and that it, at any rate, furnished no sufficient ground for revoking the decree of probate. Shuw v. Shaw, 21.
2. Under Code Civ. Pro., § 2558, subd. 3, forbidding an award of costs "to an unsuccessful contestant of the will, unless he is named
as an executor in a paper propounded by him in good faith, as the last will of the decedent," the court may grant costs to an executor who has, in good faith, but unsuccessfully, opposed an application to revoke pro- bate of the will under which he received letters, and to admit to probate a paper propounded as a later will,-he being within the equity of the statute. Bertine v. Hubbell, 335.
3. The will of the testatrix was admitted to probate November 7th, 1881, none of the persons cited appearing. On November 6th, 1882, petitions for the revocation of such probate were filed by certain next of kin, under Code Civ. Pro., § 2647. A citation was accordingly issued Feb- ruary 21st, 1883, and was first served upon a party February 23d, 1883. A motion was made to dismiss the proceedings upon the ground, among others, that the citation was not served within the time limited by Code Civ. Pro., § 2517.-Held, that the Surrogate lost jurisdiction by the fail- ure to serve the citation on one of the adverse parties within sixty days after the presentation of the petition, and that the motion must be granted. Pryer v. Clapp, 387.
4. Upon a petition for revocation of probate of a will, as a matter of right, the Surrogate is governed by the provisions of Code Civ. Pro., §§ 2647-2653; and he cannot grant relief under id., § 2481, subd. 6, author- izing him to open, vacate, modify or set aside a decree or
1. Under R. S., part 2, ch. 6, tit. 1, § 42 (3 Banks, 7th ed., 2286), providing that "no will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or un- less such will be burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator him- self," etc.; a part of a will cannot be revoked by cancellation or oblit- eration. Gugel v. Vollmer, 484.
2. Testator's will consisted of six pages, four of which were marked across, as having been stricken out at some time after its execution, with a mar- ginal note on each of the four pages, in the testator's handwriting, as follows: "I pronounce this void, July 24, 1878." All the writing on the pages so marked remained perfectly distinguishable.-Held, no re- vocation, and that the entire will, as executed, must be admitted to pro- bate.
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