then observes: "Good will embraces at least two elements, the advantage of continuing an established business in its old place, and of continuing it under the old style or name. While it is not necessarily altogether local, it is usually to a great extent, and must, of necessity, be an incident to a place, an established business or a name known to the trade."

In the matter before the court, the name under which the new corporation carried on business was not the same as that of the old firm. There were no trademarks, brands or other distinguishing business devices of the old firm used by the new one, and, while the term good-will was used in the instrument of transfer, the fact appears to be that the old company gave the new one the right to do business for three months with certain of its customers without molestation from or competition with the old corporation. When the three months were over, the old company had the right to compete with the new one, and certainly under such conditions the latter cannot be said, at least after that time, to have enjoyed the good-will of the former.

Good-will should be based upon a calculation of profits before the death of the decedent (Matter of Silkman, supra), and the life of a corporation should be one of the elements considered. (Matter of Demarest, N. Y. L. J., May 7, 1914.)

Under the circumstances, the taking of a six years' purchase was not proper in my opinion. A careful examination of the cases fails to disclose one in which the years of purchase were more than the total life of the corporation. Thus, in Matter of Ball (161 App. Div. 79), the average annual profits were multiplied by two, the corporation being seven years old; in Matter of Silkman (supra) the same were multiplied by two, the corporation having been in existence nineteen years; in Von Au v. Magenheimer (supra), the same were multiplied by six, the life of the corporation being over ten years; in Matter of Keahon. (60 Misc. Rep. 508) they were multiplied by three, the corporate existence being fifteen years; in Matter of Weatherbee

(N. Y. L. J., Nov. 5, 1913) they were multiplied by five, the life of the corporation being thirty years, and in Matter of Gumbinner (N. Y. L. J., Oct. 19, 1915) the purchase was two years and the life of the corporation eighteen years.

It will be seen from these matters that there is no fixed rule for taking any specific number of years' purchase of the average profits. In Von Au v. Magenheimer (supra) the Appellate Division said that the number of years' purchase that were to be taken was a question of fact.

If the appraiser was right in disregarding the sales and the testimony of the treasurer and in basing his valuation entirely on the so-called book value of the stock plus the value of the good-will, then, I think that under all the circumstances a more just result would have been reached if he had taken the actual net profits made during the life of the corporation, about twentymonths, as being the value of the good-will instead of a six years' purchase of the average annual profits. If this be done and the figure thus obtained be substituted for that obtained by the appraiser as the value of the good-will, the total net value of the shares would be only slightly in excess of the amount at which I have arrived.

I accordingly hold that the said shares should have been ap praised at forty-four dollars per share. The appeal is sustained, the order reversed and the report remitted to the appraiser for correction as indicated.

Appeal sustained and order reversed.

Matter of the Estate of WILLIAM MAY, Deceased.

(Surrogate's Court, New York County, December, 1915.)

EXECUTORS AND

ADMINISTRATORS-WHEN

TRATOR EVIDENCE.

BALANCE PAID ΤΟ ADMINIS

Where claimant received from decedent, a feeble and illiterate old man, certain money upon the understanding that out of it should be paid his living expenses and the cost of his burial, the balance must be paid over to the administrator in the absence of clear and adequate proof that claimant is entitled to retain it.

DISCOVERY proceeding.

Walter A. Sweet, for administrators.

Peter P. McElligott, for respondent.

FOWLER, S.-This is a discovery proceeding before me. I am satisfied that Mr. Anderson received some money from Mr. May, a feeble and illiterate old man, and that the understanding was that out of it he should pay Mr. May's living expenses and the cost of his burial. There is no dispute about the amount so received. Mr. Anderson's claim is that he was entitled to retain the balance. With the evidence of this claim I am not satisfied. Such a claim must always be established by clear and adequate proofs. Consequently the balance remaining in his hands, after deducting all the payments made to or for the use of the deceased, must be paid over to the administrator. As this resembles an equitable proceeding, the administrator must do equity as a condition of relief, and I shall be very liberal in allowing deductions for sums actually expended.

Decreed accordingly.

Matter of the Estate of WILLIAM LAWRENCE BREESE and HAMILTON FISH BREESE, Infants.

(Surrogate's Court, New York County, December, 1915.)

GUARDIANS-APPLICATION FOR ANCILLARY LETTERS OF GUARDIANSHIP-CODE CIV. PRO., § 2654(2).

Under section 2654 (2) of the Code of Civil Procedure an application for ancillary letters of guardianship must be made by the person authorized to act as guardian within the county where the infant resides, but no provision of said Code authorizes the surrogate to issue joint letters of guardianship.

APPLICATION for ancillary letters of guardianship.

Marvin, Hooker & Roosevelt, for petitioner.

FOWLER, S.- This is an application for the grant of ancillary letters of guardianship to the petitioners as joint ancillary guardians. Under section 2654, subdivision 2, the application for ancillary letters must be made by the person authorized to act as guardian within the county where the infant resides. Section 2655 provides that if the surrogate is satisfied that the case is within section 2654, and "that it will be for the ward's interest that ancillary letters of guardianship should be issued to the petitioner," he may grant letters of guardianship accord ingly. This section merely provides for the granting of letters to the petitioner, and not to the petitioner and another person jointly. There is no provision of the Code which authorizes the issuance of joint letters of guardianship in the Surrogate's Court. The decree should provide for the issuance of ancillary letters to Julia Fish Breese.

Decreed accordingly.

Matter of the Estate of HENRY KLATTE, Deceased.

(Surrogate's Court, New York County, December, 1915.)

LEGACIES-SPECIFIC AND GENERAL-PAYMENT OF DEBTS AND EXPENSES.

Certain legacies held to be specific and another general and the assets of the estate to be applicable to the payment of debts and expenses as follows: First, the unbequeathed personalty as to which testator died intestate, and, second, a general legacy and then the specific legacies.

OBJECTIONS to account by a special guardian.

Reynolds & Geis (Richard A. Geis, of counsel), for executors.

William J. Burke, special guardian.

FOWLER, S.- The special guardian's objections are sustained as follows: The legacies contained in the fourth and fifth clauses of the will are specific legacies. (Estate of Beckett, 15 N. Y. St. Repr. 716.) In Roper & White on Legacies (Vol. 1, p. 199) it is said: "Following then the same principle, viz., the intention of testators, if a testator direct his freehold or leasehold estates to be sold, and dispose of the proceeds in such a form as to evince an intention to bequeath them specifically, the testamentary dispositions will be specific, the money is sufficiently identified and severed from his other property; and since he has sufficiently marked his intent to distribute the identical proceeds, the bequests are accompanied with all the requisites of specific legacies.

"An instance of this kind occurred in Page v. Leapingwell (18 Ves. 463); see also Newbold v. Roadnight (1 Rus. & M. 677). In that case A. devised to B. real estates in trust to sell, but not for a less sum than £10,000; and he directed B., out of the monies arising from the sale, in the first place, to lay out