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it of the character of property, or prevent its transfer by will, and it not being distinguished from the other property conveyed by the will to his executors, it is no part of the duty of the courts to divide up the property transferred and to deprive the State of its present revenues upon a portion of the property thus transferred. It is not necessary now to decide what would be the status of the appellant if the decedent had left no other property than that of his father, which has not been reduced to possessson, but the court, in Matter of Zefita, Countess de Rohan-Chabot (167 N. Y. 280, 284) very clearly intimates that in such a situation it would be the duty of the executors of the father's estate to see to it that the tax was paid before it was transferred to the representatives of the father's beneficiary. But here no such question is involved. The decedent has transferred all of his property to his executors and trustees, and there is an abundance of property in their hands to pay the tax out of the property so transferred, and it is the duty of those charged with the administration of the law to appraise the property thus transferred and to collect the tax fixed by law upon such transfer, leaving the beneficiaries under the decedent's will to take the property thus transferred, less the amount of the tax.

In Matter of Phipps (77 Hun, 325), relied upon by the respondents, the facts are not analogous to those here involved. Elizabeth Fogg, a resident of the State of New York, made a will, in which she gave and devised her residuary estate, some of which was real estate, but where located did not appear, to Hiram Fogg, of Bangor, Me., and John A. Phipps, of Boston, Mass. Phipps died at his home in Boston before the estate of Elizabeth Fogg had been administered, leaving by his will his interest in the estate to his wife. The question presented was whether the interest transferred by Phipps to his wife in the State of Massachusetts was taxable in the State of New York under the provisions of section 1 of chapter 483 of the Laws of 1885, as amended by chapter 713 of the Laws of 1887, and by chapter 215 of the Laws of 1891, and the court held that it was not, the decision going upon the principle that the mere chose in action transferred in another State, although relating to property which was within this State, because it had not been determined and transferred under the original will, was not property transferred by will within the meaning of the statute. The same principle was

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involved in Matter of Chabot (44 App. Div. 340, 344), and the conclusions reached were subsequently affirmed by the Court of Appeals in Matter of Zefita, Countess de Rohan-Chabot (supra).

While it might be doubtful about the importance of determining the exact value of a single share of stock in the brewery property, if no other matters were involved, we are of opinion that it was proper to permit a cross-examination to determine the value of this stock, and this should be taken into consideration in determining the value of the property transferred.

The order appealed from should be reversed in respect to the points considered, and should be remitted to the surrogate for a new appraisal of the estate, in accordance with the foregoing opinion, with costs of this appeal.

GOODRICH, P. J., BARTLETT, HIRSCHBERG and HOOKER, JJ., concurred.

Order reversed and proceedings remitted to the surrogate for a new appraisal of the estate, in accordance with the opinion of WOODWARD, J., with costs of this appeal.

LEAVITT J. HUNT, as Trustee in Bankruptcy of the Estate of ROBERT A. OSBORN, Bankrupt, Appellant, v. CHARLES S. OSBORN and Others, Respondents.

Payment under a guaranty of the indebtedness of a partner to his firm-construction of the will of the guarantor, giving a share of her estate to such partner, by him and the other parties in interest, charging such payments against his share — when conclusive as against his trustee in bankruptcy — when it is the proper construction.

The special partnership of John Osborn, Son & Co. was composed of Frank, Charles, William and Robert A. Osborn, general partners, and Mary C. Osborn, their mother, a special partner. The said Mary C. Osborn executed an instrument in writing, by which she guaranteed the payment of any indebtedness which Charles, William or Robert A. Osborn should incur to the firm, such guaranty to extend "only to the extent of their separate interest they may have in any estate at my death in accordance with my will, which I intend to execute at the earliest moment possible."

She subsequently executed a will by which she provided for an equal distribution of her property among her children and the descendants of a deceased son. She directed in such will that "each of my children and their issue shall be

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charged to the extent of the interest that they may respectively have in my estate at the time of my death (which was the interest less the amount advanced under the guaranty agreement) with whatever sums of money shall appear by my books to have been advanced to them subsequently to June 1st, 1890, by me, or by the firm of John Osborn, Son & Co., at my request, together with the interest thereon, to the time of my death."

The said Mary C. Osborn died December 28, 1891, and it was then found that Robert A. Osborn had overdrawn his account with the firm to the extent of $22,050.65, which amount was, under the terms of Mrs. Osborn's guaranty, charged against her capital in the firm and credited to the account of Robert A. Osborn on the books of the firm. December 31, 1891, Robert A. Osborn made a sworn declaration to the effect that he owed the estate of his mother such sum of $22,050.65.

The surviving partners continued the firm business after their mother's death, but failed in May, 1895. While the firm was still solvent, Robert A. Osborn recognized the existence of his indebtedness to the estate before mentioned and made payments on account thereof. In 1902 Robert A. Osborn, while acting as executor of the estate of Mary C. Osborn, made a sworn inventory of the assets, in which he included the declaration sworn to by him in 1891, to the effect that he owed the estate of his mother the sum of $22,050.65. Held, that Robert A. Osborn and the other parties interested in the estate of Mary C. Osborn, having, at a time when the rights of creditors were not involved, united in construing the will of Mary C. Osborn as providing that the amount of Robert A. Osborn's indebtedness to the firm should be charged against his share of the estate, a trustee in bankruptcy of the estate of Robert A. Osborn had no standing, several years afterwards, to maintain an action to compel an accounting of the estate of the said Mary C. Osborn on the theory that it was the intention of the testatrix that, in determining the amount of Robert A. Osborn's share in the estate, the moneys paid in satisfaction of his indebtedness to the firm should be disregarded.

Semble, that the construction acted upon by the children of the testatrix was the correct one.

APPEAL by the plaintiff, Leavitt J. Hunt, as trustee in bankruptcy of the estate of Robert A. Osborn, bankrupt, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 28th day of November, 1902, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order entered in said clerk's office on the 5th day of November, 1902, confirming the said referee's report.

William D. Gaillard [Charles Capron Marsh and Daniel De Wolf Wever with him on the brief], for the appellant.

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William B. Davenport [A. A. Gardner with him on the brief], for the respondent Mary E. Polak.

William G. Cooke, for the respondents Howard J. M. Cardeza and others.

WOODWARD, J.:

The plaintiff, Leavitt J. Hunt, is a trustee in bankruptcy of the estate of Robert A. Osborn, bankrupt, and seeks, in this action, an accounting on the part of the executors of the will of the late Mary C. Osborn, and to reach certain property alleged to belong to the estate of the bankrupt. Mary C. Osborn was a special partner in the firm of John Osborn, Son & Co., with an investment of $100,000, which partnership expired by limitation on December 31, 1887. The active partners in the firm were her sons, Frank, Charles, William and Robert A. Osborn. Just prior to the expiration of this partnership, and on the 19th day of December, 1887, Mrs. Osborn wrote a letter to her son Frank, in response to letters from him, in which she stated that she was willing to and would give to John Osborn, Son & Co. an instrument in writing guaranteeing the payment of any indebtedness that may be incurred during the limitation of the partnership, or which might then be owing the firm by either Charles, William or Robert, but this was to be "only to the extent of their separate interest they may have in my estate at my death in accordance with my will, which I intend to execute at the earliest moment possible." The letter contained other matters relating to the details, and the evidence shows that an instrument in writing was subsequently executed and delivered to the firm in terms substantially as indicated in this letter, though this instrument had been lost or consumed by a fire which occurred in the office of the firm, which was under the active management of Frank Osborn. With affairs in this condition a new firm was organized, consisting of the same persons as the previous one, and to continue from January 1, 1888, to December 31, 1892. Subsequently, and on the 7th day of June, 1890, Mrs. Osborn made and published her last will and testament, in which her son Frank was made executor, and in the event of his death the will provided that her sons Charles, William and Robert, and her daughter, Mary E. Polak, should assume the office of executors. The testatrix, Mary C. Osborn, died Decem

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ber 28, 1891, and Frank Osborn entered upon the discharge of his duties as executor. It was found that after crediting Robert A Osborn with all of the profits of the firm to which he was entitled, he had overdrawn his account $22,050.65, and this amount, under the terms of Mrs. Osborn's guaranty, was charged against her capital in the firm and credited to the account of Robert A. Osborn upon the books of the concern. Frank Osborn died on the 13th day of March, 1892, and was immediately succeeded by Charles, William and Robert A. Osborn and Mary E. Polak as executors, who, without any intermediate accounting, took up the manage ment of the estate where it had been left off by their brother. These new executors, including Robert A. Osborn, on the 15th day of June, 1892, made a sworn inventory of the assets belonging to Mary C. Osborn, deceased, including a declaration subscribed and sworn to by said Robert A. Osborn, that, as of the date of December 31, 1891, he owed to the said estate both the sum of $22,050.65 (paid to the firm of John Osborn, Son & Co. for his indebtedness) and also the sum of $11,850 advanced by his mother to him. At this time the firm of John Osborn, Son & Co. was solvent and it remained in existence until the expiration of its contractual limitation in December, 1892, at which time it was succeeded by a new firm under the old name, consisting of Charles, William and Robert A. Osborn, which continued the business and failed in May, 1895. While the firm was still solvent, so far as appears from the evidence, Robert A. Osborn recognized the existence of this indebtedness and made payments upon account of the principal and interest at various dates, and the practical construction put upon the agreement and the action of the parties in interest, while they were at liberty to deal with the matter independently of the rights of any creditors; in the absence of fraud, would seem to be conclusive upon the rights of the plaintiff in this action who appears in behalf of creditors under a proceeding in bankruptcy long after the adjustment of the affairs of the estate, except in the distribution of about $34,000 now. in the hands of the executors. The learned referee, to whom the matter was referred for trial, has found in favor of the defendants, and his report has been confirmed by the court, the plaintiff appealing. A trustee in bankruptcy, except in some special statutory matters not involved here, takes no greater estate than that of the bankrupt;