N. Y. 440, 123 N. E. 741. We must seek the intent of the testator as exhibited by the words he has selected (Matter of Bump's Will, 234 N. Y. 60, 136 N. E. 295); the intent which the will itself either expressly or by implication declares (Matter of Silsby, 229 N. Y. 396, 402, 128 N. É. 212). The third paragraph in its entirety creates a simple life estate. The fourth paragraph at its beginning limits the gift over to the rest, residue, and remainder "remaining after her death, both real and personal." The same paragraph speaks of the "real estate remaining unsold at the time of the death of my said wife," and that the avails of real estate made after her death shall be added "to the residue of my personal estate." And again in the same paragraph these words are used: "If the residue of my estate, remaining at the death of my said wife, shall not be sufficient, then the gift over must abate proportionately. The last paragraph, containing the power of sale, likewise reflects the intention of the decedent. The real estate may be sold in such manner and as directed by the wife, "the proceeds of such sale, or sales to be used by my said wife during her lifetime." Standing alone, this clause may fall within the ruling in Matter of Felt, supra; but it must be read with the entire will. Even with this clause omitted, there is ample language in the will to support petitioner's views. The bequests made by the testator to his children are not inconsistent with an intention on his part to empower the life tenant to dispose of the principal of the life estate bequeathed to her. [4] There is a marked distinction between the clauses in the wills of the cases cited in support of the contention of the respondent and the will in the instant case. The whole tenor of the will shows it was the intention of the testator that his wife should have the right to use the principal of the estate as well as the income. Provisions for the benefit of a wife should be construed liberally in her favor. Moffett v. Elmendorf, 152 N. Y. 475, 46 N. E. 845, 57 Am. St. Rep. 529. Giving to the words of the will their natural meaning, it seems to me quite plain that the testator intended that his wife should have not only the income arising from the property given, but the right to use that property for her individual benefit during her lifetime, and hence to the use of the same or any portion thereof as she might deem proper. Otherwise it may be asked why the testator employed so many unnecessary words, if he only meant to create a legal life estate for the widow? The words, "remaining after her death," "the residue of my personal estate," "if the residue of my estate remaining," "the use of the proceeds of sale of the real estate," certainly should be given some meaning, and I can conceive of no reasonable construction to be placed upon them, other than the expression of an intention upon the part of the testator to limit the gift over and to permit his wife to use the corpus of the property. Whether the children took anything depends upon a contingency, plainly implied from the context of the will itself. The court will construe the will, and hold that the widow took a life estate, with the right to diminish the corpus for her own needs and benefit, as she may see fit, during her lifetime, with remainder over of such part as she might not actually use for her needs, to the persons named in the will. Decreed accordingly. (Surrogate's Court, Bronx County. November, 1923.) Executors and administrators 251-Application for leave to withdraw rejected claim granted. An application for leave to withdraw a rejected claim after the examination of several witnesses at a hearing under Surrogate's Court Act, § 211, on the judicial settlement of the executors' accounts, will be granted on payment by claimant to executors of the costs as taxed, and on failure to make such payment a motion to dismiss the claim with costs will be granted. In the matter of the judicial settlement of the account of proceedings of Mortimer Surry Tippens and George Spamer, as executors, etc., of William Jahn, deceased. On application for leave to withdraw. claims. Application granted on stated conditions. Henry C. Botty, of New York City, for executors. Salter & Steinkamp, of New York City, for Wartburg Orphan Asylum. Adolph & Henry Bloch, of New York City (Benjamin L. Blauvelt, of New York City, of counsel), for next of kin. SCHULZ, S. The respondents, claimants against this estate, whose claims were rejected by the executor and were in process of determination under section 211 of the Surrogate's Court Act (Laws 1920, c. 928), after having examined several witnesses, requested that they be permitted to withdraw their claims without prejudice. The petitioner and other interested parties, who had appeared, opposed the applications. It was agreed that, if the court declined to permit a withdrawal of the claims, the respondents rested. Motions were made to dismiss the claims. A claimant is somewhat in the position of a plaintiff in an action, and a withdrawal of a claim is, in effect, a discontinuance; hence it may be urged that applications for leave to withdraw are governed by the same rules that apply upon applications for leave to discontinue. The authorities hold that the latter are addressed to the legal discretion of the court, and should not be arbitrarily denied. Matter of Butler, 101 N. Y. 307, 4 N. E. 518; Rosen v. 981 Union Ave. Corporation, 112 Misc. Rep. 492, 182 N. Y. Supp. 811. They may, however, be refused whenever circumstances exist which afford a basis for the exercise of a legal discretion (Winans v. Winans, 124 N. Y. 140, 26 N. E. 293), such, for instance, as the intervention of substantial rights of the other party (Carleton v. Darcy, 75 N. Y. 375, 376; Davidson v. Ream, 98 Misc. Rep. 72, 162 N. Y. Supp. 174). In the pending matter the petitioners are accounting in a representative capacity, for the purpose of making distribution. Surrogate's Court Act, § 211, sets forth the time within which actions may be brought on rejected claims, and provides that if not so brought, the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes claimant and persons claiming under him are forever barred from maintaining such action, and "in such case said claim shall be tried and determined upon the judicial settlement" of the account; in other words, the matter shall be so determined that a decree may be made and distribution directed. If the claims are withdrawn, however, nothing remains to be tried and determined, because it is as though they had never been presented and a decree may then enter settling the account without making provision for the claims. I do not think the circumstances are such as to call for the exercise of a legal discretion, and hence it would follow that the claimants should be permitted to withdraw their claims. I am not quite clear as to what was meant by a withdrawal "without prejudice." I know of no authority giving me the right to permit a qualified withdrawal. The claims must be withdrawn or not, without qualification. The applications for leave to withdraw the claims are, therefore, granted upon payment by each claimant to the petitioner of costs to be taxed within three days after notice to the attorney for the claimants that the amounts thereof have been fixed. In the event of the failure to pay such costs, then the motions to dismiss the claims are granted, with costs to the petitioner against each claimant. Decree settling the account to enter after the expiration of the time within which costs are to be paid. Decreed accordingly. (121 Misc. Rep. 708) TILTON & KEELER, Inc., v. BACHRACH et al. - (City Court of New York. November, 1923.) Frauds, statute of 118(5)—Buyers' letters requesting postponement of delivery and describing goods purchased held sufficient compliance with statute. Where no written agreement for the sale of goods was executed, buyers' letters requesting postponement of delivery and describing the goods ordered, held an acknowledgment of the purchase and a sufficient compliance with the statute, as the memorandum required may be pieced together out of separate writings. Action by Tilton & Keeler, Inc., against Joseph Bachrach and another, copartners under the name of Joseph Bachrach & Son. Judgment for plaintiff. Douglass Newman, of New York City, for plaintiff. Jacob M. Schoenfeld, of New York City, for defendants. FINELITE, J. This is an action brought by the plaintiff against the defendants for goods sold and not accepted by defendants. On the trial thereof, a jury having been waived, there was submitted to the court a question of law as to whether or not the defense of the statute of frauds pleaded by the defendants is available to them under the circumstances. The court finds as a matter of fact that hereto For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (202 N.Y.S.) fore and on the 17th day of October, 1921, a certain agreement was made by and between the plaintiff and the defendants, whereby the plaintiff agreed to sell and deliver to the defendants, and the defendants agree to purchase from the plaintiff, certain goods and merchandise known as Dunbar suiting, plaintiff's No. 987, deliveries to be made in November and December on the terms of 2 per cent. off, 10 days, April 1, 1922, at 332 cents per yard, in various color assortments, and that, at the special instance and request of the defendants, plaintiff withheld the delivery of the said merchandise; that the time for delivery of the said merchandise should be postponed until April 18, 1922; that thereafter and about the 15th day of April, 1922, the defendants repudiated the agreement, and stated that they refused and would refuse absolutely to accept the aforesaid merchandise, although the plaintiff was ready, willing, and able, and offered to deliver the same to the defendants, whereupon the plaintiff notified the defendants that, upon their failure to accept deliveries of the said merchandise, it would be offered for sale at public auction; that the merchadise was duly delivered by the plaintiff to Wilmerding, Morris & Mitchell, public auctioneers, for sale; that the auctioneers duly advertised said sale for Wednesday, April 26, 1922, at 10 a. m., at their office in the city of New York, and duly notified the defendants thereof; the said sale was held on April 26, 1922, and there was realized thereon by said auctioneers the sum of $922.37 net; that the said auctioneers paid to the plaintiff for the sale of the 100 pieces of Dunbar suiting the sum of $922.37; that by reason of the premises the plaintiff was damaged in the sum of $440.42. The defendants deny these facts and set up a separate and distinct defense; that the alleged agreement was a contract for the sale of goods of the agreed price of upwards of $50, and that the defendants did not accept any part of the goods so alleged to have been contracted to be sold or actually receive the same, nor did the said defendants give anything in earnest to bind the said alleged contract or in payment, nor was any note or memorandum in writing of the alleged contract of sale signed by the said defendants, or by their agents in their behalf; and that such alleged agreement is therefore unenforceable in an action. pursuant to the statute in such cases made and provided. Thus the only question to be decided herein is the statute of frauds. It appears from the correspondence had between the plaintiff and the defendants that the plaintiff on October 19th wrote to the defendants that "we are herewith inclosing confirmation in duplicate covering goods purchased by you; we would ask you to kindly sign the unsigned copy and return to us at your earliest convenience," to which no reply was made. On December 27, 1921, defendants wrote to the plaintiff : "Please postpone all January deliveries on our orders until February 1, 1922, unless instructed to the contrary." The following day the plaintiff, replying thereto, wrote: "We wish to advise that we have looked over our January file, and fail to find having received an order from you for delivery during this month." On December 30, 1921, the defendants again wrote: "In answer to your letter of the 28th in reference to our letter of the 27th, we should advise that the order referred to calls for 100 pieces of Dunbar suiting." The question now arises whether the exchange of correspondence is a sufficient memorandum in writing as required by the statute, so that the defense of the statute of frauds will not be available to the defendants, or whether the letters as written by the defendants to the plaintiff referring to the purchase of the 100 pieces of Dunbar suiting, although containing different dates of the alleged purchase, must have been an afterthought on behalf of the defendants, so that they could plead in case of suit the statute of frauds, that no memorandum in writing was ever entered into between the plaintiff and the defendants for the purchase of said merchandise. As a matter of law the court finds: As it has been said in Spiegel v. Lowenstein, 162 App. Div. 443, 448, 147 N. Y. Supp. 655, 658, Lyon, J., in writing the opinion: 66 * * As to the merits of the defense of the statute of frauds, it was not the intention of the statute to require that the memorandum should of itself constitute a contract, as it was required to be signed only by the party to be charged. Had such been the intention, the statute would have declared that all such contracts should be void unless in writing. The purpose of the memorandum is to serve as an acknowledgment or admission in writing of the person to be charged that such a contract has been made. The statute does not brand the verbal contract as illegal, but simply says the verbal contract shall not be enforceable by action, unless there be some note or memorandum thereof in writing signed by the party to be charged. It matters not how informal or bunglingly constructed the memorandum may be. Anything [actually] under the hand of the party sought to be charged, admitting that he had entered into the agreement will be sufficient to satisfy the statute, which was only intended to protect parties from having parol agreements, dependent upon human recollection and veracity, imposed upon them. Wood, Stat. Frauds, § 345." The simple statement, referring to the contract contained in a letter signed by the party to be charged, "I made the contract for the goods," is sufficient. Bailey v. Sweeting, 30 L. J. C. P. 150. It is not necessary that such note or memorandum is contained in a single paper, but it may consist of several letters or other writings so connected by their contents as to constitute a note or memorandum for the sale of the property. All that is required is that the writing sufficiently evidenced the contract of the parties. If the writings refer to letters or other documents, they may be used as part of the memorandum; but, taken as a whole, they must contain all the essentials of the contract, so that resort need not be had to parol proof. Brauer v. Oceanic Steam Navigation Co., Ltd., 178 N. Y. 339, 70 N. E. 863; Doughty v. Manhattan Brass Co., 101 N. Y. 644, 4 N. E. 747; Mentz v. Newwitter, 122 N. Y 491, 25 N. E. 1044, 11 L. R. A. 97, 19 Am. St. Rep. 514; Turner Co. v. Robinson, 55 Misc. Rep. 280, 105 N. Y. Supp. 98; Abb. Tr. Ev. (2d Ed.) 358, 359. And as was correctly said by Cardozo, J., in Marks v. Cowdin, 226 N. Y. 138, 144, 123 N. É. 139, 141: We "We exclude the writing that refers us to spoken words of promise. admit the one that bids us ascertain a place or a relation by comparison of |