$70; 14 days on trial or hearing, less 2, $120,-$190. The disbursements of this party, amounting to $19.99, seem to have been necessary, and are allowed.

I next come to the question of trustees' commissions. Trustee Edward M. Willett was the executor under the will, and received as his commissions, on his final accounting as such executor, in April, 1870, $1,252.36. There is no doubt but that he is entitled to double commissions on a certain amount of the trust fund which he, as executor, turned over to himself as trustee, (In re Starr, 2 Dem. Sur. 141; Laytin v. Davidson, 95 N. Y. 263; Estate of Mason, 98 N. Y. 527,) but not on the full amount. The next consideration is on what amounts the commissions to the respective trustees will be allowed, and how the same will be apportioned between them. The standard by which to measure the apportionment of commissions to these trustees is not the amount either or both received, but the value of the actual service rendered by either to the trust. Hill v. Nelson, 1 Dem. Sur. 357; In re Harris, 4 Dem. Sur. 463. The amount of commissions must be computed as follows: One-half commissions will be allowed to the trustees on the whole sum of $51,555, for receiving; these commissions to be apportioned between them in proportion to the services which they have thus far rendered in the administration of the trust; which, in my judgment, would entitle Trustee Willett to one-half commissions on $10,700 for receiving, and one-half commissions for paying out the same, and would entitle Trustee Brown to one-half commission for receiving $40,555. The only duties performed by Trustee Willett towards the whole fund of $51,555 related entirely to that portion on which he has been allowed one-half commissions for receiving and paying out, viz., $10,700. The amendments to the decree proposed by Mr. Hennessy should be heeded on the presentment of the new decree. be presented in accordance with the foregoing memorandum.

APPLICATION FOR REHEARING.

(June 20, 1888.)

Let one

RANSOM, S. Application by the attorney for the trustees for the reconsideration of his claim for costs heretofore taxed. The attorney for the trustees in the first instance presented, presumably, the facts, by the way of affidavit, in such detail, and with such particularity, as our rules require in respect of service claimed by him for "otherwise preparing for trial. " Excessive labor was in this proceeding imposed upon me in arriving at a just allowance to the trustees' attorneys, which would have been materially reduced if he had regarded the rule, and given me such detailed information, as I am entitled to, for the purpose of exercising that discretion which the statute invests in me. Upon personal ex parte application, by way of letter addressed to me, I permitted him to file a supplemental aflidavit, upon his inferential motion, for a reconsideration by me of his claim. While conceding to this attorney this indulgence, I desire to be understood that, in all cases, I shall consider bills of costs sustained by affidavits but once, except in case of clerical error, fraud, or mistake. In this proceeding the trustees' attorney seemed to ignore completely the rule which has been in existence since the 1st of January last, requiring some reasonably detailed statement of services for which per diem allowance is claimed. There is no evidence now presented that the trustees' attorney has, in proper regard for fair practice, served a copy of the supplemental affidavit to sustain his claim upon his adversaries. My former decision upon this claim cannot be modified. It may be that the allowance granted by me by way of costs is not sufficient to properly compensate the attorney. In that event he should look to his clients, the trustees, for such compensation, and, if proper, they may be allowed the same upon a judicial settlement of their account. Upon the papers first submitted, including two certificates of the referee certifying to the time spent by him on the reference,

I made him the allowance authorized by law. The attorney for the trustees, without having first obtained leave therefor, has intruded a supplemental certificate from the referee, in which he now certifies that 24 days were occupied by him on the two references. This is an increase in the number of 10 days, and may be justified by the facts, although his first certificate is sustained by the affidavit of one of the contestants. The certificate of a referee is permitted by statute instead of a sworn statement, because of his official relations to the court. It goes without saying that he should be very careful to give correct, accurate, and truthful information. Without intending to impute to this referee any impropriety whatever, I am unable to understand how he should have made a mistake of ten days between his two certificates. Under the facts, as they have been made to appear in this proceeding, I decline to modify my previous decision in regard to his allowance. Parties before the court sui juris may, by written consent, filed, or by consent recorded upon the minutes before the referee, give him the right to fees in excess of those allowed by law, subject always to the approval of the surrogate. The referee admits that he has reckoned his services at the rate of ten dollars a day. The statute is too plain for doubt that he cannot be allowed more than six dollars a day. It is impossible that he is not well acquainted with this mandatory law. So, also, is the attorney for the trustees. Yet they unite in urging that I shall actually disregard the statute. It is needless to say that I must decline to do so. The referee claims a considerable item for his expenses in traveling from New England to New York to attend the reference. I know of no provision of law that authorizes such a charge. I hope all referees and attorneys will understand that I depend upon proof of substantial service rendered by each of them, and that I am controlled absolutely by the plain provisions of the statute in fixing the compensation therefor. I decline to indulge in judicial legislation.

(Surrogate's Court, New York County. July 20, 1888.) EXECUTORS AND ADMINISTRATORS-REFERENCE TO SETTLE ACCOUNTS-COSTS.

Where a reference was necessitated by the failure of an executor's attorney to explain an account in those respects in which it was afterwards found erroneous by the referee, as requested by a special guardian, and several attendances before the referee were occasioned by the neglect of the executor or his attorney to heed the notice of a hearing, and when finally a summons was obtained from the referee, and served on the executor personally, even then he did not attend until a day after the one designated, the costs of the proceeding will be taxed against the executor personally.

On settlement of the account of the executor of Daniel T. Williams, deceased.

RANSOM, S. The account of the executor was filed subject to any objections by a special guardian, to be appointed on the 1st day of March last. A special guardian was appointed on that day, who filed objections to the form of the account in one particular. His objections were sustained by the referee. The error complained of could not have existed if the account had been prepared with proper care. The appointment of a referee was demanded by the failure of the attorney for the executor to give any attention to the requests of the special guardian that he explain the account in those respects wherein it was found by the referee erroneous. Several attendances before the referee were occasioned by the neglect and refusal of the executor or his attorney to hred the notice of a hearing before him. It appears that finally a summons (subpoena) was obtained from the referee, and served on the executor personal'y, and even then he did not attend until a day subsequent to that designated by the referee. The real necessities of a proper examination of this executor's account could have been disposed of in one hearing before the referee. No

doubt, if the executor had done his duty, he would have entirely obviated any reference at all by causing an explanation of his account to be made to the special guardian, whose duty it was to carefully examine it, and to object if he found it wrong. This is one of a large number of similar proceedings managed in substantially the same way that this has been managed. More than four months have elapsed since this account was filed, and the special guardian appointed, and two weeks would have been ample to enable the executor to finish his business and obtain final decree. The special guardian has employed much and valuable time. A referee was required, and he has been compelled to attend for the purpose of hearing and determining any ques tion that might be raised by the objections of the special guardian, and all this has been caused by the neglect of the executor's attorney, for which the executor is, of course, responsible. It is impossible for me to personally hear and determine all questions arising upon the settlement of the accounts of executors and administrators. Hence, under the statute enacted for that purpose, referees are appointed, and for the particular proceeding they are vested with all the powers of this court, and should act accordingly. Stephens' E'state, 28 Wkly. Dig. 132. They should not permit the proceeding to be delayed except for strictly legal cause. If the objector does not at once proceed to sustain his objections, the reference should be closed, and a prompt report to the court made of the exact facts, whereupon the objections may be stricken out for the want of prosecution. If the objections are idle and frivolous, the expense of the proceeding occasioned by them will be charged upon the contestant personally. If, on the other hand, the executor or administrator, as in this proceeding, does not diligently prosecute his duty, and manifest a disposition to promptly and economically complete the trust committed to his charge, and act in accordance therewith, he will be, as in this proceeding he shall be, required to pay the costs of the proceeding. Delays in proceedings before referees appointed by me are improper on every ground, and shall not be tolerated. I shall regard such delays, if acquiesced in by the referee, as conclusive evidence of his unfitness for his office. The costs claimed by the attorney of the executor, except disbursements, are disallowed. The special guardian is allowed $100. The referee is allowed $30, that being the amount fixed by statute for the days spent by him. And the entire cost of this proceeding as above taxed, is charged against the executor personally, for the reasons already given.

(Surrogate's Court, New York County. October 12, 1888.)

1. EXECUTORS AND ADMINISTRATORS-ANCILLARY ADMINISTRATION-WHEN GRANTED. A motion to grant ancillary letters testamentary to one alleging that he is execu tor of a will of the decedent duly probated in another state will not be granted on affidavits; but a reference will be ordered to determine whether the testatrix resided in such other state at the time of her death, or the execution of the will, so as to entitle petitioner to ancillary letters, under Code Civil Proc. N. Y. § 2695. 2. SAME-REVOCATION OF LETTERS TESTAMENTARY-PROBATE IN ANOTHER STATE.

Where petitioner also asks that letters of administration previously issued to an other be revoked, the reference must include the question as to whether decedent's next of kin were cited in the foreign probate proceedings. If decedent resided in New York at the time of her death, or the execution of the will, and her next of kin were not cited, the letters of administration will not be revoked until proceedings are instituted to probate the will in New York.

On motion to grant ancillary letters testamentary on the estate of Ellen Cavin.

William P. Sloan, for petitioner. Geo. W. Wilson, for administrators. RANSOM, S. This is an application by a son of deceased, who claims to be the executor of her will heretofore admitted to probate in New Jersey, for an

order revoking letters of administration in chief issued by this court to one Thomas Cavin, also a son of deceased, and to George E. Clines, both residents of this county. The petitioner has already made an application for ancillary letters testamentary. A great deal of immaterial matter is set forth in the affidavits of the respective parties. In the answering affidavits to the application it is alleged that at the time of her death the decedent was a resident of this state. The son, one of the administrators, further alleges that he has received no notice of the existence of a will, nor of any application for its admission to probate either in New Jersey or elsewhere.

In determining this motion it becomes necessary to determine the application for ancillary letters testamentary. Section 2695, Code Civil Proc., provides that "where a will of personal property made by a person who resided without the state at the time of the execution thereof, or at the time of his death, has been admitted to probate by a competent court, within the foreign country, or the state or the territory of the United States, where it was executed, or where the testator resided at the time of his death, the surrogate's court having jurisdiction of the estate, must, upon an application made as prescribed in this article, accompanied with an exemplified copy of the will, and of the judgment, decree, or order so admitting the same to probate, and also of the foreign letters, if any have been issued, record the will and the foreign letters, and issue thereupon ancillary letters testamentary, or ancil lary letters of administration with the will annexed, as the case requires." It will be seen that, in order to grant ancillary letters testamentary, this court must be satisfied that the testatrix resided without the state at the time of her death or the execution of the will. This fact is in controversy, and cannot be determined on affidavits. The application for revocation of the letters of administration involves the same question of residence, and one other. If the alleged testatrix resided in this state at the time of her death, or the execution of the will, and the next of kin were not cited to attend the proceeding admitting the will to probate in New Jersey, the letters of administration should not be disturbed until a proceeding is instituted in the courts of this state to admit the will to probate here. A reference must be ordered to determine the residence of deceased at the time of her death, or the execution of the will, and whether this respondent and next of kin was cited on the proceeding admitting her will to probate in the foreign jurisdiction.

(Surrogate's Court, New York County. October 12, 1888.) TAXATION-EXEMPTIONS-BENEVOLENT Societies-COLLATERAL INHERITANCE TAX. The Bank Clerks' Mutual Benefit Association, incorporated under the act of 1848, for the incorporation of benevolent societies, "to relieve the necessities of the aged and disabled, and benefit the families of deceased" bank clerks, which provides for the admission of members, the fees and assessments to be paid, and a forfeiture of membership for non-payment of assessments, is simply a mutual benefit association, and, not being exempted from taxation by its charter, takes a legacy subject to the collateral inheritance tax.

On motion to confirm report of appraisers of the estate of Joshua Jones, deceased.

Graham McAdam, for the comptroller. De Witt, Lockman & De Witt, for the executor. Miller, Peckham & Dixon, for Bank Clerks' Mutual Benefit Association.

RANSOM, S. In this matter it is claimed on behalf of the Bank Clerks' Mutual Benefit Association that the bequest of $10,000 to it under the will of decedent is exempt from the collateral legacy tax upon the ground that the association is a charitable organization, the object being "to relieve the necessities of the aged and disabled, and benefit the families of deceased officers

and clerks connected with the banks and savings banks of the city of New York and vicinity," and bases its claim upon title 1, c. 13, Rev. St. § 4: "The following property shall be exempt from taxation;" and subdivision 7: "The personal estate of every incorporated company, not made liable on its capital in the fourth title of this chapter." Title 4, § 1, is as follows: "All moneyed or stock corporations deriving an income or profit from their capital, or otherwise, shall be liable to taxation on their capital in the manner hereinafter described." Section 2: "The president * ** ** or other proper officer of every such incorporated company shalb * * * make and deliver to the assessors a written statement specifying: (1) The real estate owned by such company; (2) the capital stock actually paid in, and secured to be paid in, excepting therefrom the sums paid for real estate, and the amount of such capital stock held by the state, and by any incorporated literary or charitable institutions * * *." The Bank Clerks' Mutual Benefit Association was incorporated March 24, 1869, under the general "Act for the incorporation of benevolent, charitable, scientific, and missionary societies," enacted in 1848, but there is no provision in its charter exempting it from taxation. It is only by implication and analogy that it can be claimed to have any right to be exempted In article 2 of its constitution, which treats of membership, it is expressly stated in section 1 that "no applicant shall be admitted to membership after attaining the age of 50 years. Section 2 provides that "all applications for membership must be accompanied by a certificate of health from one of the examining physicians of the association, and be referred to the committee on the admission of members. The applicant for membership, if accepted, shall pay the fee of the medical examiner." Article 12 provides that "any member failing to pay his assessments for three consecutive months shall forfeit his membership, and all the benefits resulting therefrom, and shall not be readmitted to membership in the association under any circumstances. These provisions seem to establish the fact that the association is nothing more than a mutual benefit insurance association, like the Knights of Honor, the Royal Arcanum, and numerous other and kindred associations. It is restricted to a certain class, and to a certain community; but the objects are the same,-for the aid of the sick and disabled members, and some provision for the families of deceased members; the burden falling as lightly as possible upon the association by limiting their assessment to one dollar for each death, and arranging for the reduction of even that amount in the discretion of the officers of the association. There seems to be no definite amount set apart to be paid in case of sickness or death; it is apparently left to the exigences of the case or the discretion of the officers. In that respect it differs from the purely benefit insurance companies, where a definite amount is fixed upon as the insurance, and where, in the case of sickness, it is generally a set sum. In Catlin v. St. Paul's Church, (general teim,) 1 N. Y. Supp. 808, it was held "that since a church is exempt only as to its buildings, lots, and furniture" under 2 Rev. St. N. Y. § 4, and both the church and the missionary society fall outside of the exemptions of subdivision 6, of "all stock owned by the state or by literary or charitable institutions," and subdivision 7, "of the personal estate of every incorporated company not made liable to taxation on its capital, they are neither exempt from taxation, and are subject to the tax on their bequests *." There seems to be no ground, therefore, for sustaining the contention of the Bank Clerks' Mutual Benefit Association that the legacy of $10,000, which passes to it under the will of this decedent, is exempt from the tax. The appraiser's report is con firmed.

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