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WILLS - Continued.
upon his death passed by right of survivorship to her, he assumed
to dispose of the same by a will establishing a trust of his entire
estate for her benefit during life and upon her death directing the
payment of certain legacies, the residue to be divided into four
equal parts as to each of which he created further separate trusts.
By a codicil which revoked one of said trusts, created primarily
for the daughter of testator, she was given, free from any rent or
other charge, the use and occupancy for life of a part of the house
upon said real estate, with remainder to a grandson of testator
and his heirs forever. The codicil also provided that during the
daughter's life, the rent of the other part of the house should be
collected by the executor as part of the residuary estate and applied
to the payment of taxes, insurance and repairs. At the death of
the testator, provided the fair and reasonable market value of the
premises did not equal one-fourth of the residuary estate, the execu-
tor was directed to pay to the daughter, in cash, the difference
between the appraised value made by the executor as directed and
the one-fourth part of the residuary estate. Until her death, ten
years after that of her father, the daughter occupied her part of
the house with the consent of her mother. Thereafter, and for a
nominal consideration, the widow, who during her lifetime had
accepted the income of the trust created for her by her husband's
will, conveyed the premises to the devisee thereunder. In a pro-
ceeding for the judicial construction of a will, held, that the widow's
acceptance of the income of the trust constituted an election on
her part to accept the provisions of the will and to permit the
premises of which she was the owner to pass under the devise
thereof contained in her husband's will. The conveyance of the
premises having been made with full knowledge of the facts of the
situation must be taken as an open ratification of the testator's
act in assuming to make the devise and as an act on the part of the
widow in furtherance of her election to abide by the terms of her
husband's will. In the circumstances, for the purpose of determin-
ing the amount of cash presently payable to the estate of the
deceased daughter in accordance with the codicil, the premises in
question must be deemed to pass to the testator's grandson by
virtue of the will and a claim that the full one-quarter share of the
residue is now payable to the next of kin of the deceased daughter
as if the said premises formed no part of decedent's estate and
were not in anywise affected by his will, is untenable. Matter of
Peter Aitken, 268.

6. Devise Discretionary power of sale - - Taxes and carrying
charges on unproductive real property payable by life tenant.-
The general rule is that taxes and carrying charges on real prop-
erty are payable by the life tenant and are not chargeable either
upon the land, the proceeds of its sale or upon the interests of
the remaindermen, unless the will expressly so directs. A will
containing only a discretionary power of sale over the real estate
and under which testator's widow, who was also his executrix,
took a life interest in the residue of his property, real and per-
sonal, devised and bequeathed whatever was left of the residuary
estate at her death, after payment of money legacies payable there-
from, to the brothers and sisters of testator in equal shares. The

WILLS - Continued.
residuary estate consisted of about $250,000 worth of income pro-
ducing real and personal property, and $160,000 worth of vacant
lots producing no income. Held, that an objection to the payment
from the principal of the estate for taxes on the unproductive
property still unsold must be sustained and the account of the
executor of the deceased executrix surcharged accordingly. Matter
of Robert S. Fleet, 273.

7. Non-residents Every state has exclusive jurisdiction over
property within its borders Constitutional law Will relating
to personal property valid in state where executed may be estab-
lished in New York although not entitled to probate Code Civ.
Pro. \ 1861, subd. 2 Decedent Estate Law, \ 200(2), 206, added
by Laws of 1920, chap. 919.- Under the full faith and credit clause
of the Federal Constitution, as now interpreted, every state has
exclusive jurisdiction over property within its borders, and where
a testator has property in more than one state, each state in its
own courts, can provide for the disposition of the property, in con-
formity with its laws. Where the will of a non-resident of this
state, relating to personal property only, is valid under the laws
of the state of Virginia in which it was executed, it may be estab-
lished by an action in the Supreme Court of the state of New York
though it is not entitled to be admitted to probate here. (Code
Civ. Pro. 1861, subd. 2; Decedent Estate Law, 200(2), 206,
added by Laws of 1920, chap. 919.) Where testator and his second
wife were domiciled in the state of Ohio until shortly before his
death there and said will could not be proved in that state against
her objection because it was holographic, and for the reason that
it offended the community law of that state, her ex parte admin-
istration proceedings therein gave the Ohio court plenary jurisdic-
tion over all assets the decedent left in that state. In an action
by stockbrokers who held an account in favor of decedent to estab-
lish his holographic will executed in and valid under the laws of
the state in which it was made, plaintiff interpleaded as defendants
the Ohio administratrix as well as the executor, legatees and next
of kin, viz., mother and brother, under decedent's said will, which
had been admitted to probate in the state of North Carolina, where
decedent was born. Several months after decedent's first wife had
obtained, in West Virginia, a decree of absolute divorce but before
the entry of the final judgment, decedent married his second wife
and shortly after her appointment as administratrix, the mother
and brother of decedent proved ex parte in North Carolina his holo-
graphic will, which left everything to them. Held, that the North
Carolina court was without jurisdiction to admit the will to pro-
bate and that plaintiff was entitled to judgment establishing said
instrument as the last will and testament of decedent. Hutton v.
Blackburn, 434.

8. When legacies abate - General legacies usually abate ratably
when assets insufficient for full payment, in absence of intention
to prefer - Trust for education of infant children preferred when
other provision insufficient.- Where general legacies are of pure
bounty and there is no expression or inference to be drawn there-
from manifesting an intention to make a preferred gift, the general

WILLS - Continued.
rule is that in the event of a deficiency of assets to pay them in
full, the legacies abate ratably though in some circumstances the
courts have found an intention to prefer without express words
on the part of the testator. A testator who left no real estate and
whose personal estate was largely insufficient to pay general legacies
in full beqeauthed $50,000 to his executor in trust, to keep the
same invested and pay the income thereof for the use and educa-
tion of his three infant children, with direction that if said income
was not so used, then to accumulate and add it to the principal
which testator directed to be equally divided among his children
when they attained the age of twenty-five years. Held, that while
it is the law that if a legatee is otherwise provided for the legacy
will abate, yet where the “other provision” is neither sufficient
nor reasonable, the gift for the use of the children under the will
should be preferred. Where, as here, a deed of settlement provid-
ing for the support and maintenance of decedent's wife and chil-
dren did not provide for the education of the children, they are
not “otherwise provided for” either in the will or the deed of
settlement, for the purpose of education, and the trust for that
purpose should be preferred as against the contention of the widow
that all general legacies should abate, pro rata. Matter of George
E. Neil, 498.

9. Legacies Relatives " limited to those who would take under
Statute of Distributions Provisions for widow inconsistent with
her taking dower Election.— A testator survived by his widow
and two brothers and three sisters devised and bequeathed sixty per
cent of all his estate, real and personal, to his wife and the balance
equally to his “relatives " and in addition the wife was given all
bonds and jewelry. Held, that “relatives” should be construed to
embrace those only who would take under the Statute of Distribu-
tions in case of intestacy. The provisions of the will for the widow
are inconsistent with hrr taking dower and she is put to her election.
Matter of Ludwig Sobel, 508.

10. Upon probate surrogate may determine whether after-born
children, unprovided for, are entitled to share. When after-born
children deemed to be mentioned in will within meaning of sec-
tion 26 of Decedent Estate Law.— The surrogate upon a proceeding
for the probate of a will has jurisdiction to construe the instru-
ment and adjudicate as to whether after-born children of the testa-
tor, unprovided for therein or by any settlement, are entitled to
a distributive share of his estate pursuant to section 26 of the
Decedent Estate Law. After the creation of a trust for the benefit
of certain named persons and of testator's wife, his executrix, who
if after-born children were cut off, was the sole legatee, the will
provides: “In the event of my leaving legitimate issue, I annul
this entire will and give, bequeath and devise to my wife my entire
estate whether the same be real, personal or mixed property, to
herself, her heirs, executors and assigns, in fee and absolutely free
from any trust or restrictions.” Held, that said children were
mentioned in the will within the meaning of section 26 of the
Decedent Estate Law and were not entitled to succeed to any portion
of testator's property, pursuant to such statute. Matter of John
W. Dick, 635.

WILLS — Continued.

11. Testator's intention must govern When legatee entitled to
income up to date of organization of corporation provided for in
will - Attempted gift to corporation of income which accrued
prior to its organization illegal and void.- Where the meaning of
a testator is apparent the plain import of the language of his will
may not be departed from though it result in rendering the instru-
ment invalid. It is the duty of the court in the interpretation of a
will to ascertain from its language, properly interpreted, what the
testator actually intended and then to determine whether intended
provisions are valid. Testator, who died April 25, 1919, devised
and bequeathed his residuary estate to his executors in trust, with
instructions to organize, as soon after his death as practicable, and
within the lifetime of his nephew and of a partner of testator, a
corporation to be known as the “ Juilliard Musical Foundation"
and to transfer and pay over the entire capital of the trust fund to
said corporation when organized, for the uses and purposes pro-
vided for in its charter. The will contained a further direction
that until said corporation was organized, the executors should pay
all income actually received from the trust fund to testator's nephew,
but that upon such organization being effected, all distribution of
income to him should cease, and that there should be no appor-
tionment to him of income partially or wholly earned, but not yet
due and payable, at the organization of the “ Juilliard Musical
Foundation, and in the event that the corporation was not organ-
ized or for any other reason the said testamentary provisions
should be ineffectual, the entire trust fund and estate was devised
and bequeathed to the "American Museum of Natural History" and
to “ St. John's Guild in the City of New York” in equal shares.
The will gave testator's partners the right to purchase his interest
in the firm, and in certain mill stocks owned by him, “ upon the
inventory value” and “ on an inventory basis " respectively. The
executors and trustees and the surviving partners as of the day
of the testator's death consummated a sale of testator's interests in
the partnership and in the mill stocks. Interest bearing promissory
notes of the surviving partners were delivered to and accepted by
the executors and trustees in accordance with the direction of the
will, except as to interest dates. The “ Juilliard Musical Founda-
tion” was incorporated by the legislature March 30, 1920, and a
meeting for the purpose of effecting the organization of said “Foun-
dation was held April 16, 1920. The notes were dated April 25,
1919, and delivered November 23, 1920. Upon the delivery of
the notes the surviving partners also gave a check in payment
of any and all interest due from them on account of the notes up
to and including October 25, 1920, amounting to $965,471.60.
Upon the judicial settlement of the accounts of the executors and
trustees and for a construction of the will, the substitutionary
legatees asserted claims to the amount of said check, together with
certain other income from corporate or governmental securities,
which accrued prior to the organization of the “ Juillard Musical
Foundation." Held, that the intent of the testator was to give to
his nephew all income that was due and payable up to the date
of the organization of the “ Foundation" whether actually reduced
to possession or not, and that the remainder of said income should
go to the “ Foundation.” The attempted gift to the corporation of

WILLS – Continued.
income which accrued prior to its organization constituted a direc-
tion for an illegal accumulation of income and was void. The
nephew was entitled to the income on the notes and all other income
that was due and payable up to the date of the meeting held for
the purpose of effecting the organization of the corporation, and
the testator having failed to give and bequeath the balance of
said income it passed to his next of kin under the Statute of Dis-
tributions, but before a decree can be granted herein the proceed-
ing must be amended so as to bring in such persons. The fact
that the amount received on the sale of testator's interest in the
firm and in the mill stocks was less than the inventory value as
stated in the transfer tax proceeding conducted by his executors
and trustees, does not alter the fact that the price so paid was the
agreed inventory value and a compliance with the terms of the will.
Matter of Augustus D. Juilliard, 642.

and

12. Bequest of part of residuary estate Direction as to pay-
ment of rents, issues and profits to widow and to son who pre-
deceased mother leaving issue Conveyance and transfer of one-
half of trust estate to son on arriving at twenty-one years of age

Death of my said sonrefers to death either before or after
mother Children of deceased son entitled to whole corpus of
trust estate in equal shares conveyance and transfer by trustee
decreed.— Testator devised and bequeathed to a trust company one-
third of his residuary estate in trust, with the following directions :
To pay the rents, issues and profits thereof to his wife during her
life, and upon her death to his son until he attains his majority,
and thereafter during his life to pay him one-half of said rents,
issues and profits; upon his arriving at the age of twenty-one years
to convey, assign and deliver to him one-half of the trust estate,

upon the death of my said son” to convey, assign and deliver
all of the estate held in trust, be it the whole or one-half part
thereof, to his lawful issue share and share alike or in default of
such issue to his next of kin. The testator's widow survived him
and though the son survived his father he predeceased his mother,
leaving children him surviving. Held, that the words
death of my said son" must be construed as referring to his death
either before or after that of his mother. The children of the
deceased son are therefore entitled to the whole corpus of the trust
estate in equal shares and the trustee will be directed under the will
to make the proper conveyance and transfer. That the son having
reached his majority would immediately upon the death of his
mother, the life tenant, have been entitled to one-half of the trust
estate absolutely had he survived her, does not change the situation.
Matter of Jabez A. Bostwick, 750.

upon the

13. Holographic Writing this will revoked" across face of
will effects neither a revocation nor cancellation Decedent Estate
Law, ở 34.- After the death of a testator his holographic will exe-
cuted nearly fifty years ago was found in a safe deposit box with
the words “Will revoked ” and “ This will revoked," written verti-
cally across the face of the will, in each instance followed by his
name but not those of witnesses. Held, that admitting that the

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