WILLS Continued.

will not be inferred if decedent may have been mistaken in her
judgment as to the value of her property or was in reasonable
expectancy of increasing her personal estate before her death.
The primary fund for the payment of general legacies is the per-
sonal estate unless the will expressly declares otherwise, or a clear
intention to the contrary is to be gathered therefrom, which may
be aided by extrinsic evidence; if the contrary intention is not
expressed in the will, then it must be clearly and satisfactorily
inferred. An intention to charge the real estate of a testatrix will
not be inferred from a disparity between the amount of the estate
and the legacies, if the testatrix might have been unconscious of
its existence, or mistaken in her judgment. As between a power
of sale in a will being a basis for a charge of legacies upon the
real estate and the existence of the relationship of parent and child
as showing an intention not to create such a charge, the latter is
of controlling importance and an outweighing factor on the ques-
tion of the intent of the testatrix. Decedent, most of whose prop-
erty was acquired under the will of her late husband, died at the
age of seventy-six years, leaving her surviving no children of her
body or descendants of any such. After certain general legacies,
amounting to $40,500, not specifically charged upon her real estate,
to her sister, nieces and nephews and to relatives of her deceased
husband, all the rest, residue and remainder of her estate, both
real and personal, was devised and bequeathed to "Florence A.
Coombs, who grew up as a child in my family and lived with me
for many years, the same to have and to hold forever," and the
executor was given full power of sale over the real estate. When
the will was executed, about fifteen months before the death of
testatrix, exclusive of 20,000 shares of the United States Tin Com-
pany of the par value of one dollar per share, and certain mining
stock which had not been transferred from her husband's name,
the personal estate of testatrix amounted to about $25,000. With-
out testimony as to the intention of testatrix it was stipulated by
all parties in interest that both at the date of the will and also at
the date of the death of testatrix, the stock in both corporations
had no value. The residuary legatee was a second cousin of testa-
trix, and from the time she was two years old stood in the mutually
acknowledged relationship of parent and child to both the testatrix
and her husband, was educated by them at private schools and at
her marriage at the home of decedent was given a large wedding.
Certain of the other legatees, relatives of decedent's husband, also
lived with her for a while but not in the relationship of parent
and child. Held, that the burden of proof resting upon the gen-
eral legatees to show that it was the intent of testatrix to charge
their legacies upon her real estate, had not been sustained, and it is
accordingly decreed that said legacies are not a charge upon the
real estate left by decedent. Matter of Charity C. Mould, 1.

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2. Trusts Unlawful accumulation of income - Personal Prop-
erty Law, § 16-Person presumptively entitled to the next eventual
Powers of substituted trustees - Commissions of trustees
- Surrogate's Court Act, § 285.- Where testator bequeathed his
entire estate in trust, and excepting $3,000 a year which he directed

estate

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to be applied for the use of his sister, the net income to the amount
of a certain sum, "but no more," was to be applied to the use of
his daughter during her life, a further direction that the remainder
of said income be applied to the use of the daughter for life,
"accumulating for her benefit during her minority, and adding to
the principal of the said trust fund so much of said sum as may
not be required for her suitable education and support, in addition
to the" former bequest to her, is void, as such accumulation of
income would be unlawful under section 16 of the Personal Prop-
erty Law. The daughter and not her issue is the person presump-
tively entitled to the next eventual estate, and the contention that
her infant children are entitled to all excess income after necessary
provision is made for her is untenable. Where since the daughter
became of age she acquiesced in the conduct of the trustees and
was content to permit them to handle the funds of the estate and
await their accounting without any judicial interpretation of the
will, the trustees are entitled to commissions upon the investments
of income accumulated during the daughter's minority. The enum-
erated powers relating to investments conferred by the will upon
the original trustees may be exercised by substituted trustees. Mat-
ter of Clement Trowbridge, 55.

3. Missing duplicate ·

Probate of other duplicate directed.-
A few days after testator had made in duplicate a typewritten will
he received from the scrivener one of the duplicates and took it
with intention to place it in his safe-deposit box, but it was never
seen again and cannot be found. Held, that the other duplicate,
which testator had placed in his safe-deposit box where it was
found after his death, was entitled to be admitted to probate. Mat-
ter of William H. Shields, 96.

4. Where there is a right of trial by jury in two contested pro-
bate proceedings the proceedings will not be consolidated - Last
will must be tried first · Surrogate's Court Act, § 65.- Under sec-
tion 2535 of the Code of Civil Procedure, now Surrogate's Court
Act, section 65, consolidation presupposes the pendency of two or
more proceedings, and where upon an application for an order
of consolidation and for the framing of questions for a jury upon
the issues of due execution, testamentary capacity and undue influ-
ence arising out of four wills alleged to have been made by dece-
dent, it appears that no petition has been filed for the probate
of either of the two intermediate instruments, the application must
be denied as to them. The last will which in terms revoked all
prior wills cannot be considered as codicillary to the first will and
must be tried first in a separate proceeding and the application for
an order of consolidation will be denied in toto. Matter of Cor-
nelius S. Pinkney, 262.

5. Husband and wife― Joint tenants ·Tenants by the entirety
Widow's election to receive benefits under will of deceased hus-
band permits title to real estate which was owned by them jointly
to pass under the will of her deceased husband. Although dece-
dent and his wife held certain real estate as joint tenants, which

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.

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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.

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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.

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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.

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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.