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has held that a transfer or succession did take place which did not in fact take place. Matter of Backhouse, 110 App. Div. 737, 96 N. Y. Supp. 466, affirmed 185 N. Y. 544, 77 N. E. 1181. Therefore the motion of the Comptroller to dismiss the proceedings for lack of jurisdiction is denied.

Whether or not the application shall be granted upon the merits depends upon the effect of the exercise of a power of appointment given by the will of George B. Warren, Sr., who died May 8, 1879, to George B. Warren, Jr. The power was granted in these words:

“I give his or her said share to such persons and in such proportions as such child shall by will duly executed appoint and as a part of his or her estate and in default of such will, I give the same to the heirs of such child as if such child had died seised and possessed thereof."

This language followed a gift of the residue of testator's estate to trustees in trust for the use of his three children. George B. Warren, Jr., died October 8, 1905, leaving a widow and four children. By his will he sets aside 250 shares of the stock of the Rensselaer & Saratoga Railroad, out of and from his share of his father's estate, for the use of his daughter Mary, during her life, with remainder over to his three sons. In the next item, he declares that he executes the power of appointment under his father's will “by appointing in this my last will and testament my three sons

as the persons to inherit absolutely and forever the same share and share alike, subject, however, to a life interest therein by my beloved wife

as appears more specifically set out in the clause following."

By section 220 of the transfer tax law (Laws 1896, p. 868, c. 908) the right of succession to property passing under a power of appointment is taxable. Matter of Delano, 176 N. Y. 486, 68 N. E. 871, 64 L. R. A. 279, reversing 82 App. Div. 147, 81 N. Y. Supp. 762. A superficial examination of several decisions upon this subject made by the courts might lead one to think that they have not been entirely harmonious, but a careful study of them shows the principle which has been applied.

In Matter of Vanderbilt, 50 App. Div. 216, 63 N. Y. Supp. 1079, affirmed 163 N. Y. 597, 57 N. E. 1127, the testator directed that, upon the death of Cornelius, the fund should be paid to his lawful issue in such shares or proportions as Cornelius night by his last will have directed or appointed. Cornelius by will made an unequal division among his children, and a tax was upheld. In the Delano Case, 176 N. Y. 486, 68 N. E. 871, 61 L. R. A. 279, reversing 82 App. Div. 117, 81 N. Y. Supp. 762, the power was to give

* in such manner and proportions as she may appoint,” among several classes named, and, in event of her failure to appoint, the estate was to be divided among the persons composing those classes. The power was exercised by appointing one person to receive the whole estate, and a tax was held to be assessable.

In Matter of Dows, 167 N. Y. 227, 60 N. E. 439, 52 L. R. A. 433, 88 Am. St. Rep. 508, affirming 60 App. Div. 630, 71 N. Y. Supp. 1135, affirmed sub nom. Orr v. Gilman, 183 U. S. 278, 22 Sup. Ct. 213, 46

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and at once, in such of his children him surviving and the issue of his deceased children as he (the donee of the power] may by his last will and testament designate and appoint, and in such manner and upon such terms as he may legally impose.” The power was exercised by creating life estates in his children dependent upon a term of years or a prior death and giving the remainder of each life estate to the other child. A tax was upheld.

The principle applied in these and other cases was that, the power, being effectively exercised, and it being necessary to resort to the will, by which it was exercised, before title could be established to the property claimed, the transfer was by force of the power of appointment, and was subjecť to taxation. The cases in which the tax was not upheld apply the reverse of this principle.

In Matter of Lansing, 182 N. Y. 238, 74 N. E. 882, modifying 103 App. Div. 596, 92 N. Y. Supp. 1132, the attempt to exercise the power neither increased nor diminished the estate of the beneficiary as fixed by the will creating the power.

In the Backhouse Case, 110 App. Div. 737, 96 N. Y. Supp. 466, affirmed 185 N. Y. 544, 77 N. E. 1181, it was said that: “The children

get the one-fifth of the estate of their grandfather by his will, and not by the will of their father.”

In Matter of Ripley, 122 App. Div. 419, 106 N. Y. Supp. 844, the original will gave the property to certain persons "unless otherwise disposed of" by a power of appointment given. It was held that the portion of the estate which was not "otherwise disposed of” went directly to said persons under the prior will and was not subject to the succession tax.

Upon examination of the two Warren wills, we find that under the original will the four children of George B., Jr., would take the estate equally if the power of appointment was not exercised. It was exercised so that, instead of an equal and immediate division of the estate among the four children upon the death of George B., Jr., the division was postponed during the life of his wife, who gets a life estate, and ultimately the absolute estate vested in three of the four children; the daughter receiving absolutely no part of the estate.

It is clear, then, that the petitioners do not and cannot take under the original will, but that their rights and estates are created and fixed by the power of appointment, and that, therefore, they are required to pay a transfer tax upon such right of succession. In their application the petitioners state that they elect to take under the original will, and not under the power of appointment. This the petitioners could do, if the exercise of the power was a mere formality confirming the title previously acquired.' Matter of Lansing, supra; Matter of Ripley, supra. But the exercise of the power, having worked a modification of the terms of the prior will and having created different estates and interests, cannot be ignored by the petitioners; and while compelled to take, if at all, under the power, they cannot elect to take under the original will for the purposes of this application.

An order may be entered denying the application.
Application denied.

(62 Misc. Rep. 439.)

In re SCHLEGEL'S WILL (Surrogate's Court, Kings County. February, 1909.) W'ILLS (8 111*)-EXECUTION-SIGNATURE.

A will was drawn on a printed blank, and in the body of it were the words "continued on other side,” where directions were written for the disposition of the estate. The testator signed his name at the beginning in the space intended for the recital of his name, and at the bottom of the second page, but did not sign in the place intended for signature; but the notary signed there, and the attestation clause followed his signature Held, that the will could not be admitted to probate.

[Ed. Note. For other cases, see Wills, Cent. Dig. $ 268; Dec. Dig. I 111.*] In the matter of the probate of the will of William Schlegel, deceased. Probate denied.

Leon Forst, for proponent.
Joseph A. Kennedy, special guardian.

KETCHAM, S. Probate must be denied. The propounded paper consists of two pages. The first contains the form of a will upon a printed blank, in the body of which are written the words "continued on other side.” The other page is filled with directions for the disposition of property after death. At the end of the attempted will on the first page there is no signature by the decedent. In the place in which such signature might be looked for the notary who drew the will has written his own name, with the initials “N. P.,” indicating his office. Subjoined to this signature is a printed attestation clause, signed by two witnesses, who certify that William Schlegel, the supposed testator, has subscribed the foregoing will, and declared it to be his will, and has requested them to sign as witnesses. In the blank space at the opening of the will for the recital of the name of the testator, the decedent has written his name. At the end of the second page the decedent has again written his name; but it is not attended by any signature of witnesses.

Thus it appears that the notary has permitted the deceased to sign in every place where his signature has no testamentary value or efficacy, and has himself signed in the one place where his misguided employer should have signed. The grotesque result is an instrument which, while it plainly tells what the decedent wanted to do and tried to do with a substantial estate, forbids the fulfillment of his affectionate purpose, and leaves the disposition of his fortune dependent only upon the blunders of an incompetent, who had no business to attempt

a will.

Probate denied.

•For other cases see same topic & $ NUMBER In Dec. & Am. Digs. 1907 to dato, & Rep'r lodeses

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(Surrogate's Court, Kings County, February, 1909.) 1. EXECUTORS AND ADMINISTRATORS (8 473*) — ACCOUNTING — JURISDICTION OF

SURROGATE'S COURT,

The Surrogate's Court has no jurisdiction, upon the settlement of the accounts of an executor, to determine a claim for injury alleged to have been inflicted upon the estate by his joining in the purchase of a portion of the real estate of testator for his own profit; but the question is of equitable cognizance.

[Ed. Note.—For other cases, see Executors and Administrators, Dec. Dig.

$ 473.") 2. EXECUTORS AND ADMINISTRATORS (8 473*) – ACCOUNTING — JURISDICTION OF

SURROGATE.

Though the surrogate may have power to examine a testamentary trustee's dealings to determine whether he is entitled to commissions, yet where to do so would conclude the parties in any action in which questions cognizable in equity would be presented, the question of commissions will be reserved, and the parties left to the equity court.

[Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. $ 473.*] Proceeding for the judicial settlement of the account of Charles A. McInerney and another, as surviving executors of the will of Mary McInerney, deceased. It was sought to hold one of the executors liable for damages alleged to have resulted from his joining in the purchase of a portion of the real estate of testator. Finding for the executor.

Sparks & Fuller, for executors.
Edward J. Flanagan (James C. Church, of counsel), for contestant.
Franklin M. Tomlin, special guardian.

KETCHAM, S. In the settlement of the accounts of testamentary trustees it is claimed that, upon the sale of real estate pursuant to a power of sale in the will, a trustee, who is one of the seven beneficiaries under the will, joined with three other beneficiaries in the purchase of a portion of the real estate, in part for his own interest and profit, and that he should account for any injury inflicted upon the estate by his acts in this regard. The court has no jurisdiction of the question thus presented. It is of equitable cognizance, and belongs exclusively to a court of general equity powers. Matter of Valentine, 1 Misc. Rep. 491, 23 N. Y. Supp. 289; Matter of Randall, 152 N. Y. 508, 46 N. E. 915.

It is probable that the surrogate has power to examine the trustee's dealings with the subject of his trust, in order to determine whether or not the trustee is entitled to commissions; but, in the event of the exercise of jurisdiction in this respect, the surrogate's finding that the trustee was faithful or unfaithful would conclude the parties in any action in which the questions cognizable in equity would be presented. Thus the court, which has no power to make a comprehensive judgment as to the trustee's conduct, and any liability that might result therefrom, would impose its adjudication upon a court to which the complete jurisdiction attaches. “For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

To avoid a result so droll and inconvenient, the question of commissions will be reserved; and counsel may present their views as to whether this proceeding shall be adjourned pending the hearing of the question in the Supreme Court, or whether the decree shall be entered for partial relief, with leave to apply upon the foot thereof for further direction.

Decreed accordingly.

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(Surrogate's Court, Kings County. February, 1909.) JUDGES ($ 32*)—EXPIRATION OF TERM-POWERS OF SUCCESSOR.

Where the term of a surrogate has expired after he has made a deci. sion in the matter of the judicial settlement of an executor's accounts, but before the findings and the decree are completed, his successor may, under Code Civ. Proc. 2481, subds. 8, 9, sign the findings and make the decree.

[Ed. Note.-For other cases, see Judges, Cent. Dig. $ 159; Dec. Dig. $ 32.*] In the matter of the settlement of the accounts of James Taylor as executor. Motion to vacate decree denied.

James E. Delaney, for executor.
Henry Herrold, for Marie Kennerer.

KETCHAM, S. This is a motion to vacate a decree on the ground that the surrogate had no power to make the same or the findings upon which it was based.

The former surrogate, after a trial, rendered a decision, and, when his term of office expired, had not made proposed findings and decree, which were presented by one of the parties for his signature. These findings and decree were left uncompleted and unsigned when the surrogate's term of office expired, and have since been signed by his successor. The act sought to be vacated was required of the present surrogate by section 2481, subds. 8, 9, of the Code of Civil Procedure, and the motion must be denied.

Motion denied.

*For other cases seo same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indera

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