(178 N.Y.S.) we must apply the established presumption that a will proven to have had existence, and not found on the death of the testatrix, was destroyed animo revocandi, Knapp v. Knapp, 10 N. Y. 276, 278; Matter of Cunnion, 201 N. Y. 123, 94 Ν. Ε. 648, Ann. Cas. 1912A, 838; Matter of Wear's Will, 131 App. Div. 875, 116 N. Y. Supp. 304. I accordingly hold that the will of Augusta Currie Field was revoked by her in her lifetime, and that probate of the paper or example produced in court must therefore be denied. (Surrogate's Court, Westchester County. December 2, 1919.) DEPOSITIONS 29-POWER OF SURROGATE'S COURT. Surrogate's Court has power to grant application for a commission to take a deposition without the state, under Code Civ. Proc. § 888. In the matter of the probate of the last will and testament of Eugene Gerbereux, deceased. On application to take deposition without the state, pursuant to Code Civ. Proc. § 888. Granted. Oscar Le Roy Warren, of White Plains, for the motion. SLATER, S. This is an application to take a deposition without the state, pursuant to section 888 of the Code of Civil Procedure. Surrogate Fowler, in the Matter of the Estate of Hodgman, 107 Misc. Rep. 70, 175 N. Y. Supp. 608, denied an application for examination before trial within the state on a contested probate. Afterwards a mandamus was granted to compel the surrogate to grant the application for examination before trial. People ex rel. Lewis v. Fowler, 107 Misc. Rep. 253, 176 N. Y. Supp. 806. Upon appeal, the Appellate Division, First Department, held that a mandamus will not lie to compel a surrogate to issue an order for examination before trial of a party to a special proceeding; that the effect of the action of the Special Term was to substitute its discretion for that of the surrogate. The court further held, Justice Philbin dissenting, that applications for the examination of parties before trial, as provided in section 870 et seq. of the Code of Civil Procedure, do not apply to and have not been extended to proceedings in the Surrogate's Court. 189 App. Div. 335, 178 N. Y. Supp. 500. The latter part of the opinion is apparently dictum, and was not necessary to a decision to be rendered upon the appeal. I shall grant this application for a commission. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes In re KEELER'S ESTATE. 1. EXECUTORS AND ADMINISTRATORS 227(4)-REVIEW BY COURT OF REJECTED CLAIM. A claim disallowed by the executor will be considered on its merits, though proof of claim was served prior to the publication of notice to present claims, where the attorneys for the executor and claimant are both in court. 2. COURTS 201-JURISDICTION OF SURROGATE'S COURT TO DETERMINE FRAUD. While the act of 1914 (Laws 1914, c. 443), by the enactment of Code Cir. Proc. § 2510, extended and enlarged the powers of the surrogate, the Surrogates Court is without jurisdiction to determine the claim of an executor that a second mortgage executed by testatrix in the course of an exchange of property was obtained by fraud; it appearing that the parties to the original transaction were not before the court. In the matter of the judicial settlement of the account of Reginald G. Whittemore, executor of Helena Glaser Keeler, deceased. Account settled by decree allowing claim of Westchester Trust Company. William Cravath White, of New York City, for executor. Henry Martyn Baird, Jr., of Yonkers, for general guardian. Henry H. Holmstrom, of Yonkers, for administratrix of Rachel Adele Glaser. Stephen F. Thayer, of Yonkers, special guardian. SLATER, S. This proceeding is one for the intermediate judicial settlement of the account of the executor of decedent. The matter in controversy relates to the claim of the Westchester Trust Company, as general guardian of the property of Katherine Gage Cox, an infant, for the amount of $2,500, with interest, upon a bond and mortgage made by the decedent. [1] There appears to be some contention regarding the proof of the claim. Letters testamentary issued July 13, 1917. Proof of this claim was served upon the executor July 16, 1917. The notice given to persons to present claims was published beginning September 24, 1917. The executor states in his account that notice of the disallowance of the claim was given to attorney for claimant, without naming the date when the notice of disallowance was given. On August 19, 1919, the attorney for executor notified the attorneys for the claimant that the executor disallowed the claim. This statement of fact is found in the memorandum presented by the attorney for the executor. In any event the attorney for the claimant and the attorney for the executor are in court, one urging the claim and the other contending against it, and I shall proceed to pass upon the merits of the claim. [2] It appears that about 10 years ago decedent exchanged properties with other parties not now before the court in this proceeding, and gave a second mortgage upon her property for $2,500, which came For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (178 N.Y.S.) into the hands of the claimant herein. The first mortgage was foreclosed and the property sold, there not being sufficient realized from the sale to pay any part of the second mortgage. The executor is in court contending that fraud entered into the transaction of the exchange of properties and the giving of this particular second mortgage. The question arises whether the court has power to take proof and pass upon the allegation of fraud. In Matter of Schnabel, 202 N. Y. 134, 95 Ν. Ε. 698 (1911), before the Surrogate's Act of 1914 (Laws 1914, c. 443), the court held that the Surrogate's Court was without jurisdiction to hear and determine the question as to the validity of a bill of sale and that, until competently set aside in a proper action, it was conclusive evidence as to personal interest of the administratrix in the property. The appellant in that case contended that the surrogate had power to decide the question of fraud, inasmuch as there was a contest between the administratrix, who was the accounting party, and the petitioning creditor. The court held that the power to set aside the instrument by which the property was transferred by deceased to his wife could only be exercised by a court possessing general equitable jurisdiction. The court in that case also stated the question should be regarded as definitely settled by decisions of this court in cases where similarly it has been contended that the jurisdiction of the surrogate extended to the setting aside or annulment of instruments of release and of assignments affecting the distribution of estates and claimed to have been fraudulent. Matter of Martin, 211 N. Y. 328, 105 N. E. 1089; Matter of Finn, 44 Misc. Rep. 622, 90 N. Y. Supp. 159. The Surrogate's Act of 1914 extended and enlarged the powers of the surrogate by the enactment of section 2510 of the Code of Civil Procedure. In exercising the equitable jurisdiction conferred by section 2510, it has been held the Surrogate's Court is confined to the cases and to the manner of exercising such jurisdiction as therein particularly specified, and the Court of Appeals has confined such grants of equitable powers to the instances particularly specified in subdivisions 1 to 8 of section 2510. Matter of Holzworth, 166 App. Div. 150, 151 N. Y. Supp. 1072, affirmed 215 N. Y. 700, 109 Ν. Ε. 1079; Matter of Coombs, 185 App. Div. 312, 173 N. Y. Supp. 58; Matter of Malcolmson, 188 App. Div. 600, 177 N. Y. Supp. 238. The decision in Matter of Mondshain, 186 App. Div. 528, 174 Ν. Y. Supp. 599, by Mr. Justice Dowling, is not in conflict with the Matter of Holzworth and the similar cases above cited. The court in the Mondshain Case had the question squarely presented whether the Surrogate's Court had jurisdiction to set aside a general release under seal. The court said: "Such jurisdiction must be found under section 2510 of the Code of Civil Procedure," that "setting aside a general release on the alleged ground of fraud is not within any of the cases specified in the 8 subdivisions of section 2510 of the Code of Civil Procedure, and the surrogate was without jurisdiction to try the issue and make the order appealed from." The instant case in my opinion falls within the decision of the Mondshain Case. In the present accounting proceeding the parties interested in the estate and the claimant are the only ones before the court. The people who had to do with the original exchange of property made some years ago with the decedent are not, and cannot be, brought into this court. The court is without power to hear and determine the issue of fraud, which properly belongs to a court of competent general jurisdiction. Proof was taken upon the hearing, and I find that the claim for the amount of $2,500 and interest at 5 per cent. from June 1, 1914, is a proper claim as presented by the claimant against the estate. Let decree be entered allowing the claim. (Surrogate's Court, Westchester County. October 8, 1919.) 1. TAXATION 900(1)- POWER OF SURROGATE TO CONSTRUE WILL IN DETERMIN ING TRANSFER TАХ, On review of the order of the transfer tax appraiser in proceedings to fix transfer tax on the estate of a decedent, the surrogate is without power to construe her will and determine whether legacies are a charge on the realty. 2. WILLS732(2) - LEGACIES CHARGEABLE ON REAL ESTATE. Whether legacies are impliedly charged on testatrix's realty is always a question of intent. 3. EXECUTORS AND ADMINISTRATORS 272-EXPENSES AND DEBTS AS CHARGE ON LAND. The expenses of administration and the debts of an estate are a primary charge on the personal estate, and land cannot be resorted to, except under statutory authority. 4. EXECUTORS AND ADMINISTRATORS 495(3)-NO COMMISSIONS ON UNDISTRIB UTED REALTY. Where testatrix's real estate has not been delivered to devisees, nor distributed, and has not been converted into money, there can be no commissions paid the executor upon it. 5. EXECUTORS AND ADMINISTRATORS 495(1)-No COMMISSIONS ON AMOUNTS ADVANCED TO PAY LEGACIES AND DEBTS. Where testatrix's executor, personalty being insufficient to pay in full legacies not charged on realty, together with the debts and expenses of administration, himself advanced difference of about $20,000 between personal estate and amount of legacies and debts, he is entitled to commissions only on the amount of personal property left by testatrix and distributed by him, and not on the amount voluntarily paid by him. 6. CONVERSION 3-ADVANCEMENT OF MONEY TO SATISFY CHARGE ON REALTY. Where the personal estate of a wife was insufficient to pay legacies, and her husband, the executor, contributed from his own pocket the difference between what would have gone to the legatees on the theory of an abatement and the amount the will gave, no conversion of the wife's realty resulted from such payment by the executor husband, who was not entitled on such theory to commissions on the entire amount of the estate. In the matter of the transfer tax on the estate of Caroline A. Rhodes. From the pro forma order entered on the report of the transfer tax appraiser, the executor appeals. Affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (178 N.Y.S.) R. Emmet Digney, of White Plains, for appellant. SLATER, S. This matter arises on an appeal from the pro forma order entered upon the report of the transfer tax appraiser. The appraiser allows a deduction for commissions to the executor in the sum of $879.84, being commissions upon $68,984.57, the entire amount of the personal property of the decedent. The executor contends it should have been much more. [1] It appears that the decedent left personal estate to the above amount, and real estate to the value of about $130,000. By her will the decedent gave legacies amounting to over $84,000. The will gave the residuary estate, which consisted of lands, to the husband of the decedent. A decision herein will really fix the amount of the commissions of the executor to be paid upon the final accounting. It is claimed by the executor that the debts and legacies are charged upon the real property, and to that extent the real estate has been equitably converted. It appears from the evidence taken before the appraiser, which is now before me for review, that at the time of the making of the will the personal property exceeded the amount of the several legacies. Considerable personal property was expended thereafter for the care of the decedent, so that at the date of her death the personal property was insufficient to pay the legatees in full. While I am without power in this proceeding to construe the will and determine whether the legacies are a charge upon the real estate, it seems that, in reaching a conclusion in this matter, I will be practically deciding that question. [2] The several legacies are not specifically charged upon the real estate of the decedent by the terms of the will. Whether they are impliedly charged is always a question of the intent of the testator. Ely v. Megie, 219 N. Y. 112, 113 N. E. 800; Carley v. Harper, 219 N. Y. 295, 114 Ν. Ε. 351; Matter of Noe, 94 Misc. Rep. 63, 157 N. Y. Supp. 679. Legacies have been held to be charged upon real estate when, at the time of making the will, the testator's personalty is considerably less than the amount of the legacies, indicating an intention on the part of the decedent to have the legacies paid out of the real estate. From the evidence before me, this state of facts does not obtain here. The evidence taken by the appraiser indicates plainly that at the time the will was executed, the personal property of the decedent exceeded the amount of the legacies. [3] The expenses of administration and the debts of an estate are a primary charge upon the personal estate, and land cannot be resorted to, except under statutory authority. Jessup-Redfield, p. 1145; Schmidt v. Limmer, 91 App. Div. 360, 86 N. Y. Supp. 657; McGoldrick v. Bodkin, 140 App. Div. 196, 125 N. Y. Supp. 101; Matter of Lummis, 101 Misc. Rep. 258, 166 N. Y. Supp. 936. It appears that the executor has paid the legatees, also the debts and expenses of administration in full, amounting to $95,530.11. To the extent of the difference between the personal estate and the amount of the legacies, about $20,000, the executor makes himself a volunteer. A mere volunteer cannot force his services or property upon another |