Misc.] Surrogate's Court, Monroe County, May, 1902. ter with whom she had been in such close relations for many years. The executor, Mr. Chew, who was an old friend of the family, and of the deceased, knew of these facts, and drafted the will offered for probate in accordance with these expressed intentions, and with this memorandum of the deceased. He testified that he explained these provisions very carefully to her, and that by the expression of her eyes she appeared to intelligently understand it, and by her nods gave her assent thereto. As this was, therefore, in accordance with her previously expressed wish, and was, in effect, but a formal execution of that which she had informally done, and as she, by these marks of assent, approved of the same, I am led to believe that she possessed sufficient testamentary capacity to appreciate that fact, and also to properly execute and publish the same. As the circumstances of the execution of this will are so unusual the counsel for the disinherited son was amply justified in making this contest, and is to be commended for the careful and intelligent manner in which he conducted the same. Let a decree be presented for settlement, admitting the will to probate, and directing the issue of letters testamentary. Probate decreed. Matter of the Tax Appraisal upon the Estate of HENRY B. BAKER, Deceased. (Surrogate's Court, Monroe County, May, 1902.) Transfer tax-Not enforcible against a widow on the amount due her under an ante-nuptial agreement. The amount due a widow under an ante-nuptial agreement made in contemplation of marriage by which her subsequent husband agreed, in lieu of her renunciation of dower and of her rights as widow and of her rights to a share in his personalty, to provide for her in a fixed sum by his last will or out of his estate in any event, should she survive him, is a debt of his estate and the widow is entitled to full payment without diminution by the transfer tax. Such an agreement is made in contemplation of marriage and not of death. Surrogate's Court, Monroe County, May, 1902. [Vol. 38. THE decedent died intestate July 25, 1901. On November 24, 1899, the decedent made an ante-nuptial agreement with Dora Johnston. It was in writing, and, after reciting their contemplated marriage, and that the party of the first part was desirous of making provision for a fit and proper settlement for the use and benefit of his said intended wife, provided, among other things: "Third. In case said party of the second part shall survive the said party of the first part, he hereby agrees to make provision by his last will and testament or otherwise, that she shall have and receive out of his estate, the sum of twenty ($20,000) thousand dollars, with interest from the date of his decease, in consideration of said marriage and also in lieu of dower and of all rights as widow in his estate; and in case no such provision is made as aforesaid, then such sum is to be paid out of his estate at all events by those who shall administer the same." There was also a provision in the agreement, to the effect that "said provisions so made as herein specified shall be in full satisfaction of her dower in his estate and of all rights as widow in his estate, and shall bar her from claiming the same if she shall survive him after said marriage, and further, if the said marriage shall be had, and she shall survive him, that she will not claim any share in his personal estate (other than said provisions so made as herein specified) unless some part thereof shall be given her by his will or act done by him subsequent to the execution of these presents." The parties were married January 11, 1900. The widow was duly appointed administrator, and on the judicial settlement of her account, was allowed by the surrogate, as a claim against the estate, the sum of $10,000 upon said antenuptial agreement, being said $20,000 mentioned in said agreement less an insurance policy of $10,000, which by agreement between the widow and next of kin was allowed thereon. Pending the entry of the decree on such judicial settlement, this proceeding for tax appraisal of the estate was taken, and was heard by said surrogate, as appraiser. Tax Law, § 229, Laws of 1901, chap. 173. William T. Plumb, for State Comptroller. Misc.] Surrogate's Court, Monroe County, May, 1902. Charles M. Williams, for widow. Hiram R. Wood, for next of kin. BENTON, S. The agreement between Dora H. Johnston and Henry B. Baker made in contemplation of marriage between them was a contract founded upon an ample consideration for the promise of the deceased. Peck v. Vandemark, 99 N. Y. 29, 35. The agreement is not a grant conveying a present interest in property. Johnston v. Spicer, 107 N. Y. 185, 195. Nor is it testamentary in its character. A suit will lie upon its breach for damages. See cases above cited. Vogel v. Vogel, 22 Mo. 161. It is a debt within the meaning of the usual clause in a will directing the payment of debts, and the executor may pay it as such. Warner v. Warner, 18 Abb. N. C. 151. It is not made in contemplation of death, but of marriage. That in this particular case one of the parties to the contract becomes entitled to its consideration upon the death of the other, and so “enters into the possession or enjoyment thereof," at or after such death, is but an incident of, and not of the essence of the contract. The time of payment of the consideration is fixed at death, but it would be equally valid if fixed at some other period or time, and in either case the consideration is none the less a debt payable from the estate of the deceased. The contention that this is a transfer by sale, intended to take effect in possession or enjoyment at or after death, would apply equally to a note made payable after the death of the maker, yet such note is entirely valid and enforcible against the personal representatives of the deceased, for its face and interest. Hegeman v. Moon, 131 N. Y. 462. Mrs. Baker is entitled to the payment of the consideration of that contract for the purposes of this proceeding, $10,000, with interest thereon from the date of Mr. Baker's death, and without diminution, for such is the obligation of that contract. But the Transfer Tax Law makes the transferee personally liable for such tax until its payment. § 222. I doubt if Mrs. Baker could be held to a personal obligation to pay such tax, because she is entitled under that contract to the full payment of its consideration. Surrogate's Court, New York County, May, 1902. [Vol. 38. For all these reasons it seems to me that the $10,000 of the consideration of said antenuptial agreement now payable from the estate of Henry B. Baker, is not subject to tax under the Transfer Tax Law of this State. A decree may be entered accordingly, but taxing the remainder of the estate going to the sister of Mr. Baker at one per cent., which would appear to be about $12,333.55. Decreed accordingly. Matter of the Estate of WILLIAM WADE, Deceased. (Surrogate's Court, New York County, May, 1902.) Surrogate's Court - A nonresident executrix who has failed to comply with the court's orders can ask no favors of it. A nonresident executrix, of a deceased executor, who has been ordered, but has neglected, to render an account of his proceedings as executor, will not be granted any relief against a stipulation made by her under which some moneys have been paid her from the estate of the deceased executor and which contemplates further payments, as the application is addressed to the discretion of the court and until she obeys its order she is not in a position to ask favors of it. PROCEEDINGS upon the accounting of an executor. William C. Beecher, for petition. Edward J. Newell, for respondent, executor. THOMAS, S. The decedent and Edward A. Newell were executors of the will of Mary E. Wade, the first wife of the decedent. Katharine S. Wade, the second wife of the decedent, and Edward A. Newell are the executors of his will. It is claimed by Mr. Newell that assets of the estate of Mary E. Wade were received by the decedent, and have never been accounted for, and that some of them reached the hands of Katharine S. Wade, who resides out of this State. In August, 1897, a proceeding Misc.] Surrogate's Court, Suffolk County, May, 1902. was commenced under section 2606, Code of Civil Procedure, by Mr. Newell, as surviving executor of Mary E. Wade, against Katharine S. Wade, as executrix of the estate of William Wade, to compel her to account for the acts of her testator, as executor of Mary E. Wade. In that proceeding an order was made, on January 3, 1898, requiring that "said Katharine S. Wade, as executrix of the last will and testament of William Wade, deceased, render, file, and judicially settle an account of the proceedings of said William Wade (now deceased), as executor of the estate of Mary E. Wade, deceased." This order has never been obeyed; it seems to have been entirely ignored by Mrs. Wade, and her nonresidence made it impossible to enforce obedience by proceedings to punish her for contempt. She is now before the court as an applicant for relief against a stipulation made by her, under which some moneys have been paid to her from the estate of William Wade, and which contemplated further payments. The application is addressed to the discretion of the court. Until she obeys the order above recited she is not in a position to ask for favors. The application is denied, with leave to renew after the account required by the order of January 3, 1898, has been filed, and after proceedings thereunder have terminated. Decreed accordingly. Matter of the Judicial Accounting of FREDERICK S. VAN SISE and CHARLES FRANKLIN VAN SISE, as Executors of the Will of CHARLES A. VAN SISE, Deceased. (Surrogate's Court, Suffolk County, May, 1902.) Surrogate's Court - Inventory prima facie correct. An inventory is prima facie evidence of the extent and value of the personalty of the decedent, the burden of showing the contrary rests on one who contests its correctness and she must prove her case with reasonable certainty. PROCEEDINGS upon the judicial settlement of the account of executors. Objections to executors' account. |