1. Testator's estate consisted solely of real property. By his will he gave
certain legacies, directed the payment of all his debts and funeral
expenses as soon as possible after his death, and provided that his
entire estate should be sold and turned into cash as soon after his death
as his executors deemed it advisable.-Held, that, under the will, the
real property was “ subject to a valid power of sale for the payment" of
debts (Code Civ. Pro., § 2759, subd. 4), and, in the absence of proof of
the impracticability of executing the power, and its relinquishment by
the creditor, not subject to disposition under Code Civ. Pro., ch. 18, tit.
5. Dennis v. Jones, 80.
2. The allegations prescribed by Code Civ. Pro., § 2752, for the petition in
a special proceeding to dispose of decedent's real property, are jurisdic-
tional, and a provision, in an order of reference, for amending such a
petition by supplying a material omission, is wholly ineffectual. Id.
3. As to whether such a special proceeding is invalidated by non-appoint-
ment of a special guardian for decedent's infant child, for whom no
general guardian appears, though the infant is regularly served with
process, quære. Id.
4. In a creditor's proceeding, pursuant to Code Civ. Pro., ch. 18, tit. 5, to
dispose of a decedent's real property for the payment of debts, one who
has purchased the property at a referee's sale, in partition among the
heirs, is a "person claiming an interest" in the property under an heir,
and a necessary party (Code Civ. Pro., § 2754), who must be named in
the petition, and addressed in the citation. Kammerrer v. Ziegler,
177.
5. Although the Code nowhere expressly requires the executor or adminis-
trator to be cited on such an application, it is obviously intended that
the citations should be directed to all persons whose names are, by
§ 2752, required to be stated,—including such an officer. Id.
6. Under the provision of § 2754, that, "unless the executor or administrator
has caused to be published, as prescribed by law, a notice requiring
creditors to present their claims, and the time for the presentation there-
of has elapsed, the citation must be directed generally to all other credi-
tors of the decedent, as well as to the creditors named," if the excep-
tion is not shown to exist, the citation must contain the general clause
indicated, although the petitioner claims to be the only creditor. Id.
7. The existence of a dispute as to the validity of the petitioner's claim does
not deprive the Surrogate of jurisdiction of the proceedings, the same
being determinable by him. (Code Civ. Pro., § 2755). Id.
SATISFACTION OF MORTGAGE.
See EXECUTORS AND ADMINISTRATORS, 5, 10; GIFT CAUSA MORTIS; INJUNC-
1. The value of the professional services rendered by counsel to the special
guardian of an infant, opposing the probate of a will, does not furnish
the correct standard for the allowance of contestant's costs. Forster v.
Kane, 67.
2. Since September 1st, 1880, the sole source of the authority of a Surro-
gate's court to allow compensation to special guardians in probate pro-
ceedings has been the Code of Civil Procedure. Id.
3. Where probate is opposed in behalf of an infant, and granted, his special
guardian is an unsuccessful contestant of the will," within the mean-
ing of § 2558 of that act; and § 2561 prescribes the narrow limits with-
in which the court may exercise its discretion as to the amount to be
awarded, viz.: not exceeding seventy dollars, and ten dollars per day,
in addition, for all the days less two, necessarily occupied in the trial.
Id.
4. Having no power to award costs of an appeal, a Surrogate cannot, under
the form of such an award, remunerate a special guardian who has act-
ed as such on the appeal. Schell v. Hewitt, 249.
5. It seems, that Code Civ. Pro., § 2566, providing, in respect to a Surrogate's
court, that "cach other officer, including a referee, and each witness,
is entitled to the same fees, for his services .. as he is
allowed for like services in the Supreme court," includes special guar-
dians appointed by the former court, as regards services rendered in
proceedings therein. Id.
See COMMISSIONS, 5; LEGACY, 3; INTEREST, 4, 6.
See INTERPRETATION OF STATUTE.
1. Where there is no other evidence of a conversion than a demand and re-
fusal, the statute of limitations does not begin to run until the refusal,
although the conversion may have taken place long before. Terry v.
Bale, 452.
2. The statute of limitations does not begin to run, against a claim under an
alleged agreement for compensation for services rendered to a testator,
to be made by a provision in his will, until the testator's death. Eagan
v. Kergill, 464.
See PRESENTATION OF CLAIMS.
See COMMISSIONS, 13; COSTS, 13.
DISCOVERY OF ASSETS, 2; EXECUTORS AND ADMINISTRATORS, 4.
After the scrivener, K., who drew a paper propounded as a codicil, had
completed the draft, decedent requested him to sign decedent's name
thereto "per W. K.," which he did.-Held, that such signature of K.
was not available as that of a subscribing witness. Larabee v. Ballard,
496.
See EXECUTION OF WILL, 3, 4; WILL, 5; WITNESS.
1. Rule 71 of the general rules of practice, allowing the payment, to a party
willing to receive it, of a gross sum in lieu of an annual interest or in-
come for life, does not apply to a case where the distribution of a fund
is expressly provided for by statute. Hence, this provision of the Rules
cannot be invoked in respect to the distribution, by a Surrogate, of sur-
plus moneys arising on a sale under foreclosure, pursuant to Code Civ.
Pro., § 2793, 2799. Zahrt v. Zahrt, 444.
2. The Code providing for the payment, out of such surplus proceeds, of a
gross sum in lieu of an annual income, only in the case of dower (§ 2793,
subd. 3), the interest of the devisee of a life estate cannot be secured
otherwise than by the investment of a fund for the life-tenant, the pay-
ment of the income arising therefrom to him for life, and the payment
of the principal to the remainderman upon the determination of the
temporary interest (§ 2796). Id.
1. A devise or bequest to "survivors," in a case where the gift is preceded
by a life or other prior interest, is to be construed, in the absence of a
manifest special intent to the contrary, as applying to persons living at
the time of testator's death, and not as taking effect only in favor of
those who survive until the period of distribution. It seems, that the
English rule is contra. Lyons v. Mahan, 180.
2. Testatrix devised two parcels of real property to her executor, in trust to
collect the rents, or, in his discretion, to sell, invest the proceeds and
collect the income thereof, and to apply a portion of the rents or income
to the support of her mother during life, so much thereof as necessary
to the education and support of an infant son during his minority, and
the balance to the use of J., T. and M., her children by a former mar-
riage; one of the parcels, or its avails, to go to said infant son, after the
death of testatrix's mother and the attainment of majority by him. Then
followed the clause: "and all the rest, residue and remainder of my
property and estate, I do then gire, devise and bequeath to my children J.,
T. and M., the survivor and survivors of them, share and share alike."
When testatrix's mother had died and the infant legatee became of age,
T. was living, M. had died leaving a husband and no issue, and J. had
died leaving a widow and a son. A contest having arisen upon the
proper construction of the will as to the disposition of the residue,-T.
claiming the whole thereof, as having alone "survived,"-Held, 1. That
the devise to sell effected an immediate equitable conversion of the land
into personalty, and J.'s son was not entitled to a third of the residue,
as the heir at law of his father. 2. That the survivorship, indicated in
the clause quoted, related to the death of testatrix, and not to the future
death of the mother and attainment of majority by the infant son; that
the residuum, accordingly, vested as personalty in J., T. and M., at the
time of testatrix's death,-this result not being inconsistent with the
vesting of the legal title in the executor. Id.
See APPORTIONMENT, 1; EXECUTORS AND ADMINISTRATORS, 8.
TEMPORARY ADMINISTRATOR.
1. A contest having arisen upon an application for the probate of a will
which it appeared would necessarily cause delay in granting letters tes-
tamentary, one of the executors named in the will, who was charged by
contestant with unduly influencing decedent in respect to the same,
applied, under Code Civ. Pro., § 2868, for his own appointment as tem-
porary administrator.-Held, that such appointment would be improper,
and that the application must be denied. Cornwell v. Cornwell, 1.
2. Code Civ. Pro., § 2668, restricts the Surrogate's power to appoint a tem-
porary administrator of a decedent's estate to cases where delay neces-
sarily occurs in granting letters testamentary or of general administra-
tion, being in this respect narrower than L. 1870, ch. 359, § 13, which
gave the court in New York county power "in cases where contest is
made... to the probate of any will relating to real estate," to
appoint a receiver thereof, pending such contest. Tooker v. Bell, 52.
3. Under Code Civ. Pro., § 2672, permitting the Surrogate to authorize a
temporary administrator to pay "any expenses of the administration of
his trust," the former may, on the latter's application, order him to pay
his counsel for legal services rendered in the course of the administra-
tion. Stokes v. Dale, 260.
4. A temporary administrator having applied for an order directing him to
pay his counsel a certain specified sum as such compensation,—Held,
that, while the provision cited would justify the order asked for, the
better practice was to permit the administrator to withdraw from de
posit funds not exceeding an amount specified, and afford him an op-
portunity to exercise his own discretion as to a reasonable amount to be
paid to counsel, subject to an accounting; and that an order should be
granted accordingly. Id.
1. Where a decedent, at the time of the alleged execution of a will, is shown
to have been aged, ill, physically feeble, and with impaired senses,
though of unquestioned mental capacity, mere proof of the due observ-
ance of the formalities of subscription and publication will not justify a
decree admitting the instrument propounded to probate. Hyatt v. Lun-
nin, 14.
2. The value of the testimony of attending physicians, as to their patients'
testamentary capacity, and that of alienists, upon the same subject,
given in response to hypothetical questions,-compared. Whcipley v.
Loder, 368.
3. The same acute perceptions and enlarged comprehension are not requisite
in a testator disposing of a few acres of land in a rural district, and a
few securities, as in one distributing a diversified property of the value
of a million dollars. Sheldon v. Dow, 503.
4. The paper propounded as testatrix's will was executed in January, 1881,
about two months before her death, and when she was nearly eighty
years of age. For more than three years she had been an invalid, in
consequence of an attack of paralysis, before which she had been of
fair intelligence, of a reticent disposition, and a diligent reader. She
had no children, but was the widow of S., one of whose grandchildren
was principal devisee in the will. Her property consisted of a home-
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