action for partition in the supreme court an application to make the individual "Sisters" in question parties to a suit involving real estate, in which their only possible interest was derived under the same will, was denied. In this matter it is necessary that the application of the petitioner should be granted or denied, and the disposition of the matter calls for a construction of the will as to who were intended by the testatrix, by the terms used by her, as her legatees. I do not think that any one or more of the persons who may answer individually to the description of a Sister or Sisters of Charity attached to St. Lawrence Catholic Church is entitled to letters of administration herein, and, as the relationship of the applicant to the decedent as claimed by the former is conceded, she is entitled to the letters asked for. Decree for letters to the petitioner as prayed for is ordered.

(24 Civ. Proc. R. 264.)

In re BASCH'S ESTATE.

(Surrogate's Court, New York County. March 11, 1895.) EXECUTORS AND ADMINISTRATORS-DISCOVERY OF DECEDENT'S PROPERTY.

Code Civ. Proc. § 2709, provides that a proceeding for the examination of a person concerning personal property in his possession, alleged to belong to decedent, shall be dismissed as to the property so claimed, where a verified answer is interposed, stating that such person is the owner of the property, or entitled to its possession. Held, that after such answer is interposed the proceeding cannot be continued in order to examine the party for the purpose of procuring the disclosure of any knowl edge or information concerning the property which he may have.

Proceeding to discover personal property alleged to belong to the estate of Joseph Basch, deceased. Dismissed.

Jacob Fromme, for respondent.

ARNOLD, S. This is an application by the public administrator for an examination of the respondent touching certain personal property in her possession, which he alleges upon information and belief belonged to the decedent. A citation and order having been granted and served upon her, the respondent appears and files a verified answer, claiming to be "the owner of each and every item and article of property in said petition enumerated," and thereupon asks, by virtue of the provisions of section 2709 of the Code, for a dismissal of the proceedings. The public administrator, conceding that the issues made by the petition and answer cannot be tried in this court, and that no order for the delivery of the property in question can be made, nevertheless claims the right to proceed with the examination of the party for the purpose of procuring the disclosure of any knowledge or information concerning the property which she may have. The proceedings for discovery by the public administrator are regulated, where he is acting under letters of administration granted to him by the surrogate, by the provisions of the Code. In re Elias, 4 Dem. Sur. 139. The purpose of these provisions is to enable the legal representative of an estate to obtain possession of property belonging to it which is withheld from

him. Two classes of persons may be cited,-those who have possession or control of the property in question, and who can therefore deliver it if required so to do, and those who only have knowledge or information concerning it. Section 2707, Code. If on the return day the person cited interposes a written answer, duly verified, that he is the owner of the property or entitled to its possession by virtue of a lien thereon or special property therein, the surrogate must dismiss the proceedings as to such property so claimed. If no such claim is made as so provided, the examination must proceed. The result is that, where claim of title is interposed, the surrogate is ousted of jurisdiction, and cannot decide the question raised, the parties being remitted to another tribunal, wherein a jury trial or other proper and constitutional disposition of the issues may be had. If no claim is made to the title or possession of the property, a full inquiry is allowed for the purpose of ascertaining what knowledge or information the person cited has as to the property. In this case the party comes before the court, and files a written and verified answer, claiming absolute ownership of all the property in question. Under such circumstances, no examination is permissible, and if it were allowed no order could be made for the delivery or disposition of the property based upon it. The provisions of the statute are peremptory, to whichever of the two classes mentioned the party cited may, upon the face of the petition, belong. It is true that section 2709 provides that the proceedings shall be dismissed as to the property claimed, but that is meant to cover a continuance as to such property mentioned in the petition as is not claimed by the answer. If there be any such, and the answer admits possession or control, as well as ownership, by the estate, suitable provision may be made for its delivery to the legal representative. If full concession in these respects is not made, then the party must submit to full examination as to what he knows or has been informed as to such part of the property described in the petition to which he asserts neither title or lien nor special interest. Here the ownership of all the property is claimed in hostility to the public administrator, as legal representative of the intestate. The proceedings are dismissed.

(24 Civ. Proc. R. 241.)

In re GEE'S ESTATE.

(Surrogate's Court, New York County. February, 1895.)

DEPOSITION-POWER OF SURROGATE.

The surrogate has power, in a proceeding before him, to direct the examination of a witness residing in another county within the state to be taken before a referee in such county.

Proceeding for the probate of the will of William Gee. Proponent applies for an order directing the examination of a witness residing in Greene county.

Edward S. Clinch, for proponent.

ARNOLD, S. This is an application on the part of proponent for an order directing the examination of a witness residing in Greene county, in this state, to be taken before a referee in such county. I entertain no doubt of the power of the surrogate to make such order. Section 2539 of the Code prescribes the practice where a witness who is aged, sick, or infirm cannot attend before the surrogate in whose county the proceeding is pending. Section 2540 provides for cases where the disabled witness is in another county, and this, not being an application for "the examination of a subscribing witness to a will," comes within the category of “other cases" in which a referee may be appointed. The decision in Re McCoskry, 10 Civ. Proc. R. 178, is not only not in conflict with this view of the subject, but entirely in harmony with it. The affidavit presented is not very explicit as to materiality of the evidence expected to be elicited from the witness, but, having supplemented it by an examination of the testimony of the subscribing witnesses, who fail to prove the execution of the will, there is enough to satisfy me that the testimony now sought may be material. The provision with respect to the transmission of the will to the referee for use on the examination should not ordinarily be granted, but as the conflicting interests in this estate seem to be fairly represented, assuming the executor to be, so far as the papers and proceedings indicate, entirely disinterested, and all the attorneys, as well as the special guardian, not only consent to but urge the granting of the application, that provision may remain with a slight amendment. Order as amended signed.

(11 Misc. Rep. 589.)

In re WESTCOTT'S ESTATE.

(Surrogate's Court, Otsego County. March, 1895.)

TRANSFER TAX-FUTURE ESTATE.

A devise of a remainder after a life estate, if the person named as remainder-man be then living, with limitation over in case he then be dead, is not taxable during the lifetime of the life tenant.

Appraisal of the estate of Monroe Westcott, deceased, for taxation under the transfer tax law. From a decree overruling the report of the appraiser, Elizabeth Pope Westcott and Cora P. Gannung, executors of the will of said Westcott, appeal. Modified.

Maynard & Gilbert (F. R. Gilbert, of counsel), for appellants.
Frank L. Smith, Dist. Atty., for county treasurer.

ARNOLD, S. This appeal brings up for review the proceedings had herein under the taxable transfer act, to wit, the appraisal and report of the appraiser, and the order of the surrogate confirming the report of the appraiser, and assessing the tax to which the several legacies passing under said will were liable. The tax on the legacies given by the fourth and fifth clauses of testator's will, it is conceded, was properly assessed, and in disposing of this ap

peal it is not necessary to consider more than the sixth clause of the will, which reads as follows:

"Sixth. I devise and bequeath the use of all the residue and remainder of my real estate to my wife, Elizabeth Pope Westcott, so long as she shall live, except what may be necessary to keep in repair. At her death I direct that all the property left shall be under the control of Dr. Cora P. Gannung, for the purpose of establishing and founding a hospital in the corporate limits of Oneonta, to be known as the 'Munro Hospital,' to be managed and run under the direction of the said Dr. Cora P. Gannung; and she shall receive out of the rents and profits of said property so left the sum of ($1,000) one thousand dollars each year during her life for her services as sole director of said hospital. This property is left as an endowment fund, the use of which only may be used each year for the best good of said institution. And, in case any contributions shall be made by others for buildings or for furthering the interests of said hospital, it may be accepted upon condition that the said Cora P. Gannung may associate with her any person or persons to be directors in said hospital. But should the time ever come that her wishes, or the wishes of the person or persons she may name as directors, cannot be carried out, I direct that all this endowment fund shall be withdrawn from said hospital, and the use thereof shall belong to Dr. Cora P. Gannung her lifetime, after keeping said property in repair, and at her death it shall go to Munro Lee Evans, oldest son of George O. Evans; and should he not be alive it shall go to the children, equally divided, of George O. Evans, Morris Evans, and Leon Evans then living, except one thousand dollars to each of the children of Dr. Cora P. Gannung then living. Should George O. Evans, Morris Evans, and Leon Evans, any or all of them, die and leave no children, in that case their shares they have the use of be and become a part of the endowment fund for said hospital, upon the same conditions as the other funds."

Stripping this clause of testator's will of all reference to the institution to be known as the "Munro Hospital," the testator gives to his wife, Elizabeth Pope Westcott, a life estate in the remainder of his real estate. On her death he gives a life estate in the same to Cora P. Gannung. On her death he gives the remainder to Munro Lee Evans, if he be then living. If he is not living at that time, then such remainder is given to certain other persons. Proceeding under chapter 713 of the Laws of 1887, the law in force at the time of testator's death, the appraiser has, by means of the methods and standards of mortality and of value which are employed by the superintendent of the insurance department, appraised the fair market value of the devise to Cora P. Gannung at $4,550.70, and the surrogate has fixed the tax due thereon at $227.54. The appraiser has also appraised the fair market value of the devise to Munro Lee Evans at $12,091.09, and the surrogate has assessed the tax due thereon at $604.55. Under the decision of the court of appeals in Re Hoffman's Estate, reported in 143 N. Y. 327, 38 N. E. 311, it is very clear that the devise to Munro Lee Evans is not presently taxable. This leaves but one question to be disposed of here, viz.: Is the devise to Cora P. Gannung presently taxable? The act of 1887 provides that the appraiser shall appraise the estate subject to the tax at "its fair market value," and from the appraiser's report "the surrogate shall forthwith assess and fix the then cash value of all estates, annuities, and life estates or terms of years growing out of the said estate, and the tax to which the same is liable." Can the "fair market value” of this devise to Cora

P. Gannung be found by the appraiser, and its "cash value" be fixed by the surrogate at the present time? Mathematically it can; otherwise it cannot. Cora P. Gannung may die before her mother. This contingency is not named in the will, but what difference can that make as to the disposition of this case? It exists the same as though named, and the decision of the court of appeals in the Hoffman Case decides the present taxability of the devise to Cora P. Gannung. By the Hoffman will the mother took a life estate. On her death, by the terms of the will, Ella A. Sanford took a life estate, if she survived her mother. If she did not survive her mother, then on the death of her mother the remainder went to the issue of her daughter, etc. Here Mrs. Westcott takes a life estate. If upon her death, Cora P. Gannung survives her (if we do not consider the provision of the will relating to the Munro Hospital), she takes a life estate, and on her death the remainder goes to Munro Lee Evans, etc. The estates devised to Ella A. Sanford and Cora P. Gannung, by these respective wills, are subject to exactly the same contingency. In the event of the death of Cora P. Gannung before the death of her mother, as is said by the court of appeals in the Hoffman Case, "there will have been no actual transfer to her of any of the property of the decedent. She ought not to be taxed until events make it certain that there is an actual and beneficial transfer of the property to her." It is very true that the estate devised to her comes within the statutory definition of a "vested remainder," but it is very different from a case where the will gives a life estate to A. and the remainder to B. and his heirs. At the present time she has no estate that she could sell to any one at any price, unless it might be to the most daring speculator. There must be an adjournment of the taxation of the devise to Cora P. Gannung until the death of Mrs. Westcott, and there must be an adjournment of the taxation of the devise to Munro Lee Evans until the rights of the parties entitled to that devise become fixed and actual. These devises are not presently taxable. Let a decree be entered modifying the decree appealed from accordingly. Decreed accordingly.

(11 Misc. Rep. 487.)

SHEEHAN v. TREASURER OF LONG ISLAND CITY.
(Supreme Court, Special Term, Queens County. February, 1895.)

1. MANDAMUS-TO MUNICIPAL OFFICERS-WHO MAY OBTAIN.

A contractor to do work for a city under a statute providing for the issue of bonds by the city officers to pay therefor may compel the issuance of such bonds by mandamus.

2. CONSTITUTIONAL LAW-OBLIGATION OF CONTRACTS - AMENDING STATE CON

STITUTION.

The constitutional amendment which took effect January 1, 1895, prohibiting any city from incurring an indebtedness exceeding 10 per cent. of the value of the real estate within its limits, does not affect contracts previously entered into by which a greater indebtedness will be incurred, as state constitutions are "laws," within the provision of the federal constitution that no state shall pass laws impairing the obligations of contracts.