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SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. of administration. The impression of money was fixed upon it; the sons took their interest in the converted property as legatees, and upon their death before actual sale it would pass to their personal representatives.”

The property passed from Mr. Abendroth as realty. By the rule of equitable conversion it became personalty in Mrs. Mills' hands, and the proceeds or the right thereto passed from her to her husband as personalty.

The equitable rule which, under the will of Mr. Abendroth, changed its character, lost its legal fiction, and the property became, not in equity, but in law, personal property passing from Mrs. Mills.

The case of property bought in by a trustee upon a foreclosure of a mortgage investment, the trustee not being authorized to invest in realty, is analogous; the real estate so taken is not to be considered as real estate; it is in law and equity to be regarded as an investment in personalty.

While it may be physically land, it is for the purposes of the trust personal property. It is not a question of what it is physically, it is a question as to what it actually is in law.

The only ground upon which it can be claimed that the succession to the proceeds of the real estate originally owned by Mr. Abendroth, the right to which proceeds passed from his daughter, Mrs. Mills, to her husband, the respondent, can escape taxation, is the assumed right to reconvert in equity and take the property in specie, instead of the proceeds. But as laws providing for systems of taxation are to be construed as relating to facts, and not according to equitable rules, under the authority of Matter of Sutton above cited, the decree assessing the tax must be reversed, and the matter sent back to the appraiser for further hearing.

Let the appellants have costs of the appeal.

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

In the Matter of Anna W. FERRIS, an Incompetent Person. GEORGE B. MEAD, JR., as Executor, etc., of Anna W. FERRIS,

Deceased, Appellant; CRANSTON HAMILTON, Petitioner, Respondent; The Long Island LOAN AND Trust COMPANY, Former Committee of the Estate of Anna W. FERRIS, an Incompetent Person, Respondent.

Incompetent death of, pending proceedings to determine the compensation to be paid

the petitioner for his disbursements, costs, etc.— the erecutor of the incompetent should be made a party and the proceedings be continued - the compensation is a charge on the estate.

Where a person, who has been adjudged incompetent, dies during the pendency

of a proceeding to determine the compensation to be paid, out of the funds in the hands of the committee, to the petitioner for bis necessary disbursements and for costs and counsel fees, as provided by section 2336 of the Code of Civil Procedure, the court has power to direct that the incompetent's executor be brought into the proceeding, and that such proceeding be prosecuted to a

conclusion. The expenses incurred in the proceeding are not ordinary debts of the decedent,

which the petitioner is required to present to the decedent's executor for pay. ment in the ordinary course of administration, but are & charge on the estate in the hands of the committee.

APPEAL by George B. Mead, Jr., as executor, etc., of Anna W. Ferris, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 3d day of April, 1903, substituting said appellant as a party to the above-entitled proceeding in place of Anna W. Ferris, an incompetent person, and directing the Long Island Loan and Trust Company, the former committee of the estate of said incompetent, to reserve out of the fund in its hands a certain sum to the credit of the proceeding.

George H. Fletcher, for the appellant.

Milton A. Fowler and Irving Washburn, for the petitioner, respondent.

Order affirmed, with ten dollars costs and disbursements, on the opinion of Mr. Justice GARRETSON at Special Term.

BARTLETT, WOODWARD, HIRSCHBERG and HOOKER, JJ., concurred.

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. The following is the opinion of Mr. Justice GARRETSON delivered at Special Term: GARRETSON, J.:

During the lifetime of the incompetent, this court, then having exclusive jurisdiction of her person and estate, had under consideration the determination of the amount which should be paid to the petitioner out of the funds in the hands of the committee of the estate for the necessary disbursements of the petitioner and for liis costs and counsel fees as provided by section 2336 of the Code of Civil Procedure. Incidentally thereto, and for its better information, the court had appointed a referee to take proof in respect to the same and report with his opinion thereon. Pending the execution of the reference, the incompetent died. Her will has been proved in the Surrogate's Court and letters testamentary issued to the executor named therein. Upon the theory that the proceeding has abūted by her death, the petitioner asks that the executor be brought in and made a party thereto and that it be directed that the reference be carried on to a conclusion.

Objection is made by the executor to the jurisdiction of the court to grant the motion, on the ground that by section 2344 of the Code, the power of the committee has ceased "and the property of the decedent must be administered and disposed of as if a committee had not been appointed.”

I am of the opinion that this is not a sufficient answer to the application. The funds are still in the custody of the court in the hands of its bailiff, the committee, who is required tr account in respect thereto, and thereupon to pay the same over to the executor upon the order of the court. (Matter of Butler, 8 Civ. Proc. Rep. 56; Matter of Grout, 83 Hun, 25.)

As the duty of the court to fix the disbursements, costs and connsel fees of the petitioner, as required by section 2336, has not been performed, it may yet perform that duty and should do so, notwithstanding the death of the incompetent, for those expenses remain a charge upon the estate. They are not ordinary debts against the estate of the decedent, and the petitioner is not required to present them to the executor to be adjusted and paid in due course of administration. (Matter of Lofthouse, 3 App. Div. 139; Matter of Clapp, 20 How. Pr. 385.)

App. Div.] SECOND DEPARTMENT, JULY TERM, 1903.

The executor should be brought into the matter, the reference be proceeded with and the referee's report made, to the end that the amount of these expenses may be fixed and allowed by the court at an early day. Meanwhile, there should be deposited by the committee in a trust company to the credit of this proceeding $15,000 of the moneys in the committee's hands, to be held subject to the further order of the court. Upon compliance therewith, the committee may account for the purpose of being discharged.

This direction is not to be regarded as even an intimation of the amounts which should be awarded to the petitioner, as to which I can express no opinion for want of sufficient knowledge of the subject.

Let an order be prepared accordingly and submitted for settlement on two days' notice.

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Cases

DETERMINED IN THE

THIRD DEPARTMENT

IN THE

APPELLATE DIVISION,

September, 1903.

SAMUEL EASTHAM, Appellant, v. YORK STATE TELEPHONE COMPANY,

Respondent, Impleaded with EASTERN ELECTRICAL CONSTRUCTION COMPANY.

Corporation - a director thereof may verify a pleading served by it.

A director of a domestic corporation is an officer thereof within the meaning of

section 525 of the Code of Civil Procedure, which provides that the verification of a pleading interposed by such a corporation must be made by one of its officers.

APPEAL by the plaintiff, Samuel Eastham, from an order of the Supreme Court, made at the Tioga Special Term and entered in the office of the clerk of the county of Tioga on the 16th day of May, 1903, directing the plaintiff to receive the answer of the defendant, the York State Telephone Company, verified by one of its directors.

E. Watson Personius, for the appellant.

Boyd McDowell, for the respondent.

PER CURIAM:

The plaintiff has been required by an order of the Special Term to accept an answer of the defendant verified by one of its directors.

The defendant is a domestic corporation. By virtue of the Code of Civil Procedure (9 525) the verification of a pleading of a domestic corporation must be made by one of its officers. The sole

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