VERIFICATION.
See Pleading.

WARRANT.

See Attachment.

WILLS.

-

-

1. Construction of - Intention of testator — Trusts — Residuary
estates When word issue means children and not descendants
Statute of Distribution. The rule of construction that the word
issue" means descendants must yield to an intent manifested
in some part of the will to limit such meaning to "children." Where
a will provides that a certain portion of the residuary estate should
be held in trust and the income applied to the use of a named
daughter of decedent during her life, "and upon the death of my
said daughter, leaving lawful issue her surviving, then to pay over
to such issue the principal of such share so devised in trust, to be
equally divided between them," it will be held that testator's inten-
tion was to limit the distribution of the remainder of the trust fund
to the children of his daughter, and to the issue of any of them
who should be dead at the time of distribution, such issue to take
its parent's share, and that the corpus of the trust fund should be
divided equally among the children of his daughter. Matter of
Durant, 62.

-

-

2. Construction of Trusts Codicils Remainders - Intestacy
Residuary estates. Where whatever construction of a will and
codicil may be adopted there must be provided a $100,000 trust fund
for testator's stepdaughter which it is clear must be arrived at "in
one of the two ways and manner" set forth in separate paragraphs
of the codicil and such directions are too precise to admit of pro-
viding the fund by resort in part to both ways, such course is not
warranted even in an effort to avoid a finding of partial intestacy.
The scheme of the testator by which as provided by one of the said
paragraphs of the codicil a $200,000 trust fund would be set up for
the life benefit of his widow and at her death an additional $100,000
would be provided for his stepdaughter, was to be operative in the
event that the estate, which at his death amounted to about $360,000,
should be sufficient to pay in full all bequests under the will and
codicil aggregating $402,000. Held, that said paragraph could not
be considered as 66 one of the two ways " mentioned in the codicil.
The language of said paragraph made it plain that the trust pro-
vided for the stepdaughter was not to take effect until after the
death of her mother and it was clear that under the other and con-
trolling paragraph, the trust for the stepdaughter was a present
gift. The construction required by the language of the will is that
in addition to a bequest of $25,000 the widow is the life beneficiary
of a trust for $100,000 effective at the death of the testator with
remainder to a sister, niece and nephew and that the stepdaughter
is a life beneficiary of a trust for $100,000 effective at testator's
death with remainders as provided in said controlling paragraph
of the codicil, leaving the excess of the estate over $302,000 un-
bequeathed. Held, that the testator as to such excess died intestate,
the will containing no residuary clause. Matter of Davis, 194.

3. What does not pass under a bequest - Contracts - Bequests
-Royalties-Definition of "wearing apparel." Where testatrix
sold certain publications and copyrights of her late husband, the
royalties received by her under the contracts of sale do not pass
under a bequest given by her will of the "unsold publications and
copyrights of my late husband." While a bequest of wearing
apparel" is sufficient to include a watch and chain, it will not include
earrings, finger rings, bar breast pins and a bracelet of con-
siderable value. Matter of Holden, 207.

4. Production of Contested probate of - Power of surrogate
to revoke designation of temporary administratrix mistakenly made
Trial Executors and administrators. Where, after the designa-
tion of the wife of a testator as temporary administratrix, his will
is produced, the surrogate having inherent power must of his own
motion revoke such designation mistakenly made in the course of
procedure. Pending the trial of the contested probate of the will
the surrogate, on an application for the appointment of temporary
administrators, may ascertain who are the executors named in the
will for the purpose of taking cognizance of their persons but he
cannot at that time pass on the legality of particular provisions of
the will. The appointment as temporary administrators of persons
named in a will as the executors is not only more economical for
suitors and the great majority of estates, but is more consonant with
the dignity of the court and the intrusion of its nominees, strangers
to the dead, should be as rare as possible. Where two of the
individuals named as executors renounce and no good and sufficient
reason is shown why, pending the contested probate proceeding, the
other executor, a trust company in good standing, should not be
named as temporary administrator, an order to that effect may be
entered in the interest of all concerned. Matter of Shonts, 276.

-

-

5. Construction of — Accounting - Executors and administrators
Trusts- When future estate vests Remainders · Usury-
Pleading-Life tenants - Evidence - Decedent Estate Law, §§ 90,
98. Testator who had married thrice left his widow and five
children and directed that his residuary estate should be divided
into as many separate equal shares as he should leave children him
surviving and made similar provisions and directions in regard to
each of such shares. One of said shares, which is typical of the
others, was devised and bequeathed to the executors in trust with
direction to pay one-third of the net income to the widow and the
other two-thirds to his son G. by the second wife, during their
respective lives. The will also provided, should G. survive the
widow, that "from and after" her death the whole of the rents,
interest, income and profits should be paid to G. during his life
but if she survived him, that "from and after" his death, two-
thirds of said income should be paid to his lawful issue, if any, or
if there were none to testator's surviving children in equal shares,
but in case any of his other children should in the meantime have
died leaving lawful issue then such income was directed to be
equally divided among his children and their lawful issue per stirpes
and not per capita, and "from and after" the death of both the

widow and G. said share was devised and bequeathed to the heirs
of G. G. died without issue soon after the testator, leaving him
surviving half brothers and sisters as his only next of kin, all of
whom were children of the testator except J., a son of his second
wife by a former husband, who made an assignment of his interest
in the estate and died survived by eight children. A half sister of
G. survived the testator but predeceased testator's widow. The other
children of the testator are still living. Upon the judicial settle-
ment of the account of the executors of testator, to which proceed-
ing the legal representatives of the assignee of J.'s interest in the
estate were cited, held, that the future estate in the share set apart
for G. vested upon his death, at which time his heirs at law took the
realty and his next of kin the personalty, being in this case the
same persons, and as J., who took directly under the will of testator,
was, under sections 90 and 98 of the Decedent Estate Law, both an
heir at law and next of kin of G., he was entitled to participate in
the remainder devised and bequeathed upon the death of G., and
the title of J.'s assignee is a necessary issue in this proceeding. While
the surrogate upon the judicial settlement of the account of an
exe utor has jurisdiction to pass upon the validity of an assignment
of an interest in the estate a mere allegation that the assignment
was usurious will not suffice; the issue must be properly raised and
the answers which allege usury should be served with cross notice
upon the other parties who may be affected by a final adjudication
of that issue. The operation of the will upon the object of
testator's bounty presenting no latent ambiguity, though he used
technical terms in the instrument, evidence to show that to his
knowledge G. was in ill-health when the will was made, that J. did
not visit the testator for some time before it was executed, and that
testator never referred to him in the presence of his family, is not
in explanation of the will but only tends to contradict it, and is
therefore inadmissible. Matter of Lake, 287.

-

-

6. Construction of Power of appointment under — Trusts —
Codicils Antenuptial agreements. - Actions Residuary legatees.
An antenuptial agreement secured to the surviving husband or wife
a one-fourth share in the property left by the other at death. The
father of the intended husband, who as a party to the agreement
covenanted to make no discrimination between his children in his
will, devised and bequeathed one-fourth of his residuary estate in
trust to pay over to said son any part of the principal at such
times as he might require except $50,000 in certain bonds which in
any event were to remain with the trustee, and he made substantially
similar provision for each of his other children. Thereafter, by a
seventh codicil, the share left to said son was bequeathed to plain-
tiff in trust to pay the income to or for the use of said son during
his life and at his death the trust was to cease and the principal
and unpaid income were to be divided among his heirs at law, with
a proviso that a certain dwelling house should not be included in
the trust but should go to said son, his heirs and assigns forever.
The son and his wife both survived the testator who made no
provision for her by his will. Held, that said codicil constituted a
discrimination against said son and so violated the antenuptial

WILLS-Continued.

agreement. By the judgment in an action brought by the son
the trust created under said codicil was abrogated, the remainders
extinguished and it was adjudged that the trustee retain the $50,000
and hold the same upon the trusts created by the will and first
six codicils thereto for the benefit of said son and the remainder-
men and the balance of the trust fund as directed by said judg-
ment was paid over to the son who died leaving a will by which
his widow was given one-fourth of his estate and the remainder,
including all property which he had or over which he might have
the power of disposition under the will of his father or otherwise,
was left to another person. Both his widow and the residuary
legatee survived him. Under the father's will the trustees upon
the death of said son were directed to pay to his widow such portion
of the trust fund then remaining in their hands as might be neces-
sary to secure her the one-fourth part of her husband's estate as
provided by the marriage contract. In an action for the settlement
of the accounts of the testamentary trustee under the will of the
father and for a decree directing the distribution of the $50,000,
held, that the rights of the widow of said son were, under the will
of her father-in-law, made dependent upon her rights under the
marriage settlement. The son having performed the voluntary and
gratuitous obligation of his father to secure his daughter-in-law
her rights under the marriage settlement, her husband's right to
exercise the power of appointment under the will of his father in
favor of one other than his wife could not be questioned and the
entire fund should go as he appointed. United States Trust Co. v.
Gulick, 316.

-

7. Construction of Precatory words- Real Property Law,
§§ 149, 151 and 153.- Where the will of a competent testatrix, who
at her death was the owner of real property only, does not nominate
an executor, the instrument may be admitted to probate upon the
petition of her sister, her only heir at law and next of kin. The
will provided: "I give in the name of God to my sister Maria
Enright the Sole disposition of all my possessions to use as she
may see fit during her life. And at the end the said Edwin McGraw
be entitled to anything my sister may feel disposed to give to him.
also Elizabeth Harris and Mary Trainor - in case of the desease
of the Said Edwin McGraw his portion goes to his sisters." Held,
that the provisions with reference to persons other than the sister
were merely precatory and that she, both by the will and under
sections 149, 151 and 153 of the Real Property Law, took a fee
simple absolute in all of said real estate. Matter of Enright, 337.

8. Trusts Method of ascertaining residuary estate.— Testatrix,
after certain bequests to each of her three sons, directed her execu-
tors to divide the remainder of her estate into three equal shares.
She devised and bequeathed to each of two sons one of the shares
absolutely and the remaining share was given in trust to invest
with direction to pay the net income thereof to a third son for life.
Held, that under the rule laid down in Matter of Benson, 96 N. Y.
499, one-third of the residuary estate, as of the date of the death
of testatrix, should be set apart for the trust created for the third

son and one-third of the total income of the residuary estate paid
for his benefit to the trustee. All the income accrued upon the
remaining two-thirds of the residuary estate, together with interest
within one year from the grant of letters testamentary upon a
money legacy given to the third son, should be divided into three
equal parts and one of them paid to the trustee of the third son.
Matter of Brookfield, 345.

9. Construction of When absolute gift cannot be cut down by
a later provision of a will When legacies not chargeable upon
real estate. An absolute gift cannot be cut down by a later pro-
vision of the will except by language which is as clear as that
which created the gift. The testator, in making a bequest of all
his real estate and personal property to one of his daughters, failed
to make use of the word "devise" is of no moment, and where
the condition of the estate at the time the will was made furnishes
no ground for assuming an intention that legacies given by later
clauses should be charged upon the real estate, they must be paid
out of the personal property. Matter of Gaffney, 397.

10. When power vested in a testamentary trustee to sell real
estate may not be exercised - Trusts.- A power vested in testa-
mentary trustees to sell their testator's real estate may not be
exercised after the death of the sole beneficiary of the trust estate,
even though there be debts existing against the estate. Matter of
Toplitz, 401.

11. When one of duplicate wills cannot be proved.- Where
decedent, having decided to change her will which had been made
in duplicate, destroyed the duplicate which was in her personal
possession about a year prior to her death, with intention to revoke
the will, probate of the other duplicate will be denied. Matter of
Field, 409.

"

12. Construction of Meaning of words "heirs and assigns
Statute of Descent. The words "his heirs and assigns" in a will
are used to describe the nature of the estate given to the beneficiary,
not to express an intention that a lapse should be avoided by the
substitution of the heirs in place of the predeceased devisee or
legatee. Where testatrix made a devise to her stepson and to his
heirs and assigns forever and he dies before her, the devise lapses
and the property included therein passes under the Statute of
Descent to the heirs at law of the testatrix. Matter of Reynolds,
453.

13. When probate denied· Execution of Attestation clause —
Decedent Estate Law, § 21.- Decedent signed her name at the end
of a writing she had made on both sides of a sheet of paper, and
dated it, 66
'May 27, 1915," but there was no attestation clause or
other writing. After her death said writing was found in a business
envelope, upon the outside of which was written "Last Will and
Testament of Isabelle Perrine Town of Minden Dated Witnesses
Carrie Van Buren Simon Van Buren June 21st, 1919," and follow-
ing the "Dated" the word "August" was written, through the
whole length of which a line had been drawn and also another