Matter of the Estate of CHARLES H. MORRIS, Deceased.

(Surrogate's Court, Saratoga County, December, 1915.)

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EXECUTORS AND ADMINISTRATORS TO WHOM LETTERS GRANTED-WHEN LETTERS REVOKED.

Where on petition of a sister of a decedent for the revocation of letters of administration granted to one claiming to be his widow she admits that she was never married to decedent, such admission being against her interest, it must be taken as a fact that they were never married, and the letters will therefore be revoked and administration granted to petitioner.

APPLICATION for revocation of letters of administration.

Oscar Warner, for petitioner, Mary Ross.

Leary & Fullerton, for administratrix.

OSTRANDER, S.- Deceased died a resident of Mechanicville in the fall of 1912. Adelia Morris or Adelia Rose claiming to be the widow of deceased applied for, and was granted, letters of administration upon his estate. Mary Ross, the petitioner, a sister of deceased, applies for a revocation of these letters and a grant of administration to her upon the ground that Adelia was never the wife of deceased.

Morris married one Etta Demick, who divorced him at Syracuse, N. Y., about 1893, and is still living. There is no proof of any ceremonial marriage between Morris and Adelia. There is no evidence of any permission by the court for his remarriage.

In the years 1905 and 1906, Morris and Adelia went from Albany, where they were living, into Vermont on a visit to some of Adelia's acquaintances. Immediately upon their arrival in Vermont, they introduced each other as husband and wife.

They lived together for two years or more in Albany, and afterwards at Mechanicville for a matter of five years, introducing each other to various persons as husband and wife.

One Welsh, an officer, living at Mechanicville, testified that he had known the parties for a considerable time, and that Adelia was called "Rose;" that nobody ever called her "Morris" and that in the summer before Morris died he was in Morris's saloon when Adelia came into the bar-room and told Morris that she was working for him like a slave, and getting nothing for it, and Morris replied she was getting pay for what she did for him. She also said on that occasion that she was running a regular disreputable house for him and called him many vile names.

When Morris died, he was taken to an undertaker's rooms and Mary Ross, the petitioner, met Adelia at the rooms. Adelia then claimed to Mrs. Ross that she was Morris's widow. Mrs. Ross asked her how that could be as Morris had been married before and had been divorced and his wife was still living. Adelia said that Morris had told her about his former marriage and divorce but she said she loved him and that she wanted to cover up the way they were living and admitted that she was never married to him. There is no denial of this by Adelia.

It is well settled that cohabitation together as man and wife and declarations by the parties concerning their relations as husband and wife, etc., do not constitute a marriage, but they are evidential facts from which, in the absence of proof to the contrary, a strong presumption of marriage arises because they are circumstances which usually attend that relation.

Mere living together and repute do not alone constitute a valid marriage. (Matter of Hamilton, 76 Hun, 200.)

The proofs in this case establish such cohabitation, repute and declarations of matrimonial living together as would, in the absence of proof to the contrary, be sufficient circumstantial evidence of a marriage to raise a presumption of marriage, provided Morris was not under disability. But it is a well-settled

rule that all presumptions of fact vanish at once in the light of proof to the contrary.

In the present case the presumption of marriage which would ordinarily flow from the relations and declarations of Morris and Adelia is rebutted by the admission of Adelia that she was not married to Morris, which was somewhat strengthened by her statements in the presence of Officer Welch.

Her positive statement that she was not married to him was an admission against her interest and in the absence of any denial of this admission by her it must be taken as an established fact that they never married.

In this view of the case it becomes unnecessary to consider the question of Morris's disability by reason of the divorce against him.

It follows that the prayer of the petition should be granted and the letters issued to Adelia revoked.

Decreed accordingly.

Matter of the Estate of SARAH YOUNG.

(Surrogate's Court, Bronx County, December, 1915.)

EXECUTORS AND ADMINISTRATORS-PROVISIONS OF WILL-APPLICATION FOR CONSTRUCTION OF WILL-RIGHT OF EXECUTOR TO PAY FUNERAL EXPENSES.

A will contained the provision: "I direct my executor after paying the above bequests out of the balance of my money on deposit in the Bowery Savings Bank and Seamans Savings Bank, that said balance shall be used to defray Funeral Expenses and the erection of a monument over my grave."

Decedent's estate amounted to $1,471.95 and the net amount to become available for the erection of a monument would probably amount to $253.18. The executor, being in doubt as to whether he was required to expend the whole amount of the balance referred to for the erection of a monument, applied for a construction of the will.

Held, that without any testamentary direction to that effect an executor has the right to pay the funeral expenses of the decedent, and a reasonable sum for a tombstone is regarded as a legitimate item of such expenses; that no arbitrary rule can be laid down establishing what is such reasonable sum, and each case depends for its determination upon its own peculiar conditions; that the provision under consideration did not in terms require that all of the balance should be expended for funeral expenses and the erection of a monument, and that the intent of the testatrix was that so much of the balance as would be reasonable, having in mind her station in life and the amount of her estate, should be used for such purposes.

PROCEEDING to obtain a construction of a will.

Arthur C. Kahn, for petitioner.

SCHULZ, S.- The decedent left a document which has been admitted to probate as her last will and testament, by which she bequeathed to one of her daughters the sum of $500, to another daughter $200, and to a niece the sum of $100. She then pro

vided as follows: "I direct my executor after paying the above bequests, out of the balance of my money on deposit in the Bowery Savings Bank and Seamans Savings Bank, that said balance shall be used to defray Funeral Expenses and the erection of a monument over my grave."

The executor has brought this proceeding to obtain a construction of this clause of the decedent's will, being in doubt as to whether, under its terms, he is required to expend the whole amount of the balance referred to, or is authorized to expend enough thereof to erect a monument similar to the one which the decedent purchased upon the death of her husband some years ago. The expenditure for the latter amounted to

about $75.

Up to the present time he has deposited on account of a headstone the sum of $25, and he asks that he be authorized and directed to spend an additional sum of $50 for the erection of a

monument.

The daughters of decedent are her only heirs at law and next of kin and they join in asking that the will be construed as prayed for by the petitioner. The construction to be placed upon the clause in question, of course, should not be influenced by the fact that the persons interested consent to any particular form of construction. It depends solely upon the intent of the testatrix. As there is no latent ambiguity arising dehors the will, her intent must be ascertained from the will itself and the alleged declarations of the decedent detailed in the affidavits cannot be considered by me. (Mann v. Mann, 1 Johns. Ch. 231; Reynolds v. Robinson, 82 N. Y. 103; William v. Freeman, 83 N. Y. 561. When thus established the intent of the testatrix must be given effect. (Phillips v. Davies, 92 N. Y. 199; Robinson v. Martin, 200 id. 159.)

The total estate of the decedent amounted to $1,471.95. The petitioner states that the net balance after the payment of legacies, funeral expenses and expenses of administration incurred and to be incurred, including the item of $25 aforesaid, will probably amount to $228.18. The funeral expenses

amounted to $155.30. The question, therefore, is whether the decedent intended that there should be expended for her funeral the sum of $155.30 and in addition thereto for a monument the sum of $253.18.

Even without any testamentary direction to that effect, an executor has a right to pay the reasonable funeral expenses of the decedent (Code Civ. Pro., § 2686), and a reasonable expenditure for a tombstone is regarded as a legitimate item of funeral expenses. (Ferrin v. Myrick, 41 N. Y. 315; Tickel v.

Quinn, 1 Dem. 435.)

In Matter of Boardman (20 N. Y. Supp. 60) it was held that a provision in a will that all of testator's property remaining after paying his debts should be expended for a monument, fence, etc., is to be construed with reference to the circumstances and situation in life of the testator, and only a reasonable por