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RIEGELMANN V. M'COY.

expressly provided for by the statutes. And, in interpreting those statutes, it is quite immaterial whether they have or have not failed to make provision for cases more deserving of favorable consideration than those to which they expressly relate.

There seem to be four classes of cases, in which this court might be invoked to direct an advance of a legacy:

1. When application is made during the pendency of proceedings for probate. For such a case, provision seems to be made in section 2672.

2. When application is made after the grant of letters testamentary, and no appeal or proceeding for revocation is pending. There, sections 2717, 2718 and 2719 are manifestly applicable.

3. When application is made after probate and pending proceedings for revocation. Section 2650 was apparently designed for such a contingency.

4. When application is made after a decree admitting to probate, and an appeal from such decree remains undetermined.

Within this last class falls the case at bar, and there seems to be no provision of law which authorizes the granting of such an application.

Ordered accordingly.

GILES V. DE TALLEYRAND,

NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-August, 1882.

GILES V. DE TALLEYRAND.

In the matter of the estate of ELIZABETH GILES, deceased.

A testator can by suitable agreement, upon sufficient consideration, lawfully restrict his power of testamentary disposition,

Code Civ. Pro., § 2743 is now the sole source of the Surrogate's jurisdiction to determine disputes as to third parties' demands, in the judicial settlement of the accounts of a decedent's estate, and contains the necessary implication that, where the validity of a debt, claim or distributive share is disputed or has not been established, he has no authority to determine the respective rights of the contending parties.

On October 19th, 1863, the decedent, being then a resident of New York State, executed a will making certain bequests, and dividing the residue of her estate into three parts, two of which she gave to her two sons, and the third to the children of her deceased daughter. On May 25th, 1875, at Paris, France, she executed an instrument purporting to be signed and sealed in the presence of witnesses, whereby, “in consideration of natural affection and of the sum of one dollar," she covenanted and promised to pay to the widow of her deceased son 10.000 francs annually while decedent lived; agreed that all property of which she might die possessed should be equally divided among her children, and that, if any of them should be deceased, the children of such should take their parent's share; and authorized and directed her executor to pay after her death, to her daughter-in-law, as the natural guardian of the children of her said deceased son, one third of the net proceeds of her estate, "in accordance with her (my) will." In November, 1879, testatrix executed a codicil, whereby she bequeathed to a granddaughter 15,000 francs. Both will and codicil having been admitted to probate, payment, from the general estate, of the legacy given by the codicil was, on the settlement of the executor's account, objected to, on the ground that, by the instrument executed in 1875, testatrix bound herself as to the disposition she should make of her property by will.

Held, that, a claim that the instrument executed in 1875 was such as to make inoperative a subsequent will or codicil not being plainly unreasonable and without legal foundation, the court had no jurisdiction to determine the matters at issue, on a settlement of the executor's account, and VOL. I.-7

GILES V. DE TALLEYRAND.

that distribution of the estate should be deferred, until the question of the validity and effect of the instrument was passed upon by a competent tribunal.

APPLICATION by William O. Giles, sole acting executor of the will of decedent, who died December 18th, 1879, for a final decree judicially settling his accounts as such executor and determining the persons among whom the moneys in his hands were to be distributed, and the amount or share to which they were severally entitled. The facts appear sufficiently in the opinion.

MURRAY HOFFMAN, for executor.

DELANO C. CALVIN, special guardian for Murray Giles and other infants.

BURRALL HOFFMAN, for Florence Giles and others.

JOSEPH K. MURRAY, for B. de Talleyrand and another.
C. ELLIOTT MINOR, for B. de. Talleyrand, as trustee.

THE SURROGATE.-Application is made for a final judicial decree settling the accounts of decedent's executor, and determining the persons among whom the moneys in his hands are to be distributed, and the amounts or shares to which they are severally entitled.

On the 19th day of October, 1863, the decedent, being then a resident of the State of New York, executed a will, whereby, after making certain bequests, she divided the residue of her estate into three parts, two of which she gave to her sons William O. Giles and J. Murray Giles, and the third to the children of her deceased daughter, Elizabeth Curtis.

On the 25th day of May, 1875, at Paris, France, the decedent executed a certain instrument, out of which the

GILES V. DE TALLEYRAND.

present contention has arisen. It commences as follows: "Whereas I, Elizabeth Giles widow of the late George Giles Esq. of the City of New York, United States of America, now residing in Paris, France, am possessed, etc."

It is not clear whether the decedent intended to describe herself or her deceased husband as "of the City of New York." The word "now" seems to indicate that she was referring to herself; while, on the other hand, the absence of a comma after the abbreviated word "Esq." suggests the other alternative.

By this instrument, the decedent, "in consideration of natural affection and of the sum of one dollar," covenanted and promised to pay to her daughter-in-law, Kate Giles, the widow of her deceased son, J. Murray Giles, the sum of 10,000 francs annually, while she (the decedent) lived. And she agreed that all property of which she might die possessed should be equally divided among her children, and that, if any of them should be deceased, the children of such should take their parent's share. She also authorized and directed her executor to pay, after her death, to her daughter-in-law, Kate Giles, as the natural guardian of the children of J. Murray Giles, one third of the net proceeds of her estate, "in accordance with her (my) will." This covenant was executed at Paris, France. Decedent's signature appears opposite a scroll containing the word "seal," and the instrument purports to have been signed, sealed and delivered in the presence of two witnesses whose names are appended thereto.

Four years later, in November, 1879, shortly before her death, the testatrix executed a codicil wherein she de

GILES V. DE TALLEYRAND.

scribed herself as "temporarily residing in the city of Paris, in the Republic of France," and whereby she bequeathed to her granddaughter, Bessie de Talleyrand, the sum of fifteen thousand francs.

Both will and codicil have been admitted to probate in this court. The payment, from the general estate, of the legacy of 15,000 francs to Bessie de Talleyrand is objected to by the other parties in interest, who base their opposition to such payment on the instrument whereby, as they claim, the testatrix bound herself as to the disposition she should make of her property by will. I am asked to decide whether that instrument is valid, and whether it was effectual to restrain or incapacitate the testatrix from bequeathing the legacy to her granddaughter, or indeed from making any other testamentary disposition of her estate inconsistent therewith.

Unless the claim, that this instrument was of such a character as to make inoperative any subsequent will or codicil, is plainly unreasonable and without legal foundation, it seems clear to me that this court has no jurisdiction to determine the matters here at issue (Tucker v. Tucker, 4 Abb. Ct. App. Dec., 428; Bevan v. Cooper, 72 N. Y., 317). See, also, a list of all the reported decisions touching the Surrogate's jurisdiction over disputed claims," in the case of Greene v. Day (ante 45).

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Those decisions are expositions of the supposed meaning of certain provisions of the Revised Statutes, as to the authority of this court in the judicial settlement of a decedent's estate. They are somewhat conflicting, but the doctrine of the latest and most authoritative among them seems to have been incorporated into the Code of Civil Procedure. Mr. Throop, one of the Code commissioners,

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