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and 114 New York State Reporter access. The dividend checks upon the securities standing in her name must have been payable to her order, and she must have known that she had not property of her own sufficient to produce such an income. The bank account in her name, and upon which she checked, and in which her private income, though small, was kept, charges her with general knowledge of its condition from time to time. It does not appear that at the time the box in the safe-deposit company was rented she had any securities of her own to put there. Neither does it appear that any securities, concededly the private property either of herself or Judge Putnam, were ever placed in this box. It is not unreasonable to assume that the other securities which were not found were transferred to her at about the time the transfers began to be so made, and if so they could be sold only with her consent and under her signature. Here, where her connection with the trust estate has been such that she was at least called upon to explain her connection with it, and from what source she derived this large amount of property standing in her name, it does not appear that at the time of her death Judge Putnam's estate, or she herself, owned any property of any considerable value aside from Putnam Place, which was concededly her property during all the time. It is not reasonable to suppose that Judge Putnam has managed the trust estate so badly that he lost the greater part of it, but managed his wife's business so successfully that she made about what the trust estate lost. For it is a fair inference from the evidence that he purchased these new securities and had them registered in her name, and it does not appear that she carried on any business, or had any private sources of income aside from what she received from this estate. Neither does it appear from the evidence that any particular part of the trust estate was lost by bad investments or otherwise. The referee finds some losses, but those are on securities which are actually found, but which the referee determines should have been sold. We cannot assume that this trustee has deliberately used for his own private purposes this trust estate, and thus become guilty of a deliberate intentional breach of trust, but it is a better means of accounting for the securities to say, as Judge Putnam said in the statement in evidence, that the trust securities are the securities found in the box in the joint possession of himself and wife, and that this joint possession, and the transfer of the securities to her name, arises from the fact of the wrong construction which both he and his wife put upon the provisions of the will. The acts of both of them are more consistent if viewed in that light.

It is undoubtedly the law that the fact that securities stand in the name of a party is evidence that he is the owner, but when we remember that Judge Putnam and Mrs. Putnam put the known trust securities in her name, and seem to have selected that name as the name in which to put the trust securities, the fact that the securities stand in her name is of but very little importance in a question between her and the trust estate as to their ownership. They were as much in his possession as in hers, and the new securities were as much iri his control as the old securities were, which undoubtedly belonged to the trust. Her evidence of title to the one is as good as to the other, so far as the place in which they were found and the name in which they stand is concerned. The giving of her note to the trust for the deficiency in the trust fund is in the line with their joint control and use of the trust. And that fact, and the way in which this husband and wife managed this trust property, leads to the conclusion that she is fairly chargeable with the knowledge of the contents of the statement Exhibit No. 27, and that that exhibit states the facts as they both understood them.

But it is most seriously contended that the Delaware & Hudson Canal Company stock, of the stated value of $35,960, and now of greater value, found in the safe-deposit box standing in the name of Mrs. Putnam, was purchased with money actually belonging to her. It seems that when Putnam Place burned the $25,000 insurance money concededly hers was deposited in this bank account, and used by him in purchasing in her name New York Central stock, and that it is probable that the proceeds of that stock deposited in this bank account produced the particular fund which bought this Delaware & Hudson Canal Company stock. It also appears that after the purchase, and before the sale of this New York Central stock, Putnam Place was rebuilt at an expense of upwards of $25,000, and the expenses thereof were paid from this same bank account. The referee finds that equity is satisfied by treating this Delaware & Hudson and other new stocks as substitutes to make up the corpus of the estate, and that no charge should therefore be made upon Putnam Place for the moneys spent in rebuilding it. His conclusion is right, but it may be also said that it is unnecessary to trace particular moneys and the use of them, so long as there is a deficiency in the corpus of the estate arising from the way in which it was administered. Equity will not allow to Mrs. Putnam the rebuilt house and the securities bought with the insurance moneys under the circumstances of this case. The trust certainly should be allowed to keep the money from the New York Central stock to replace the money used in rebuilding Putnam Place. The estate of Mrs. Putnam is called upon to follow this bank account further. By her dealings she has so complicated and involved the trust estate that she, rather than the cestui que trust, may properly be charged with proving whose money any particular money found in this bank account was, especially as by placing the known trust securities in her name she cannot rely upon the presumption, which might otherwise apply, that the securities in her name are hers. Whether this money deposited in this account which went to buy the New York Central stock or the Delaware & Hudson Canal stock was actually hers, or the trust's, or Judge Putnam's, depended upon the actual state of the accounts of each with the trust. The moment it went into the general bank account it was such a commingling of trust and individual funds that it lost its identity, and before either individual could claim it as against the trust it should appear that his or her account with the trust is such that it is not needed to make up the deficiency in the trust fund. It may have taken all of this deposit of insurance money, or the money from the New York Central stock, to make up trust funds which had previously been used and 114 New York State Reporter by Mrs. Putnam from this same account, or of securities taken by her consent or act from the trust fund.

It is contended that the statement of Judge Putnam, Exhibit No. 27, is inadmissible under section 829 of the Code of Civil Procedure, as Judge Putnam, if living, would be an incompetent witness against her estate. But this statement was made when both were living, and if admissible in evidence its competency should properly be determined as of that time. Moreover, the receipt of such a statement is not "being examined as a witness," within the meaning of that section. Lyon v. Ricker, 141 N. Y. 225, 231, 36 N. E. 189; Matter of Callister, 153 N. Y. 294, 305-307, 47 N. E. 268, 60 Am. St. Rep. 620.

Nor does any party here derive any interest from Judge Putnam. The interest comes from the Shoemaker will. Neither is the evidence of the Shoemaker executors as to what funds they turned over to Judge Putnam inadmissible under section 829. They are not interested in the event of this action. Eisenlord v. Clum, 126 N. Y. 552, 27 N. E. 1024, 12 L. R. A. 836.

The referee has properly charged the trustee with the losses on some bank stock and some railroad income bonds. While those securities came to him with the trust he was a high judicial officer, familiar with the law, and his retaining them until they became worthless is unexplained, aside from the fact that it is probable that his peculiar construction of the will that those were more private than trust funds may have been the reason for such retention. This was certainly an erroneous and unjustifiable view of the situation, for the courts of Ohio had determined, in an action to which he was a party, and before he received the property, that he was to receive it as trustee.

It is contended that the proceedings in the court of ordinary in Georgia, by which the Atlantic Factory stock and the Sibley Manufacturing Company stock were divided in kind as undevised real estate, is an adjudication that such property was real estate, and was not a part of the trust fund, and is binding upon this court, and that the referee has erred in treating those stocks as trust property. The proceedings in Georgia were apparently by consent, and the cestuis que trustent were not parties. The proceedings do not allege that the principal property or investments of the companies were in real estate, which was necessary to make the stock real estate, under the Georgia law, and from the Georgia statute in evidence it appears that such stocks "may be transferred from one person to another for any purpose whatsoever by the same means as are or may be allowed by law for the transfer of personal property.” It is therefore evident the title to this stock passed by the Shoemaker will, although it did not have three witnesses, as required by the law of Georgia for the transfer of real estate. We therefore view this proceeding in Georgia as a proceeding taken by consent as a convenient means of getting possession, by the trustee and the other legatees under the Shoemaker will, of this factory stock, and as not a binding decision upon the parties to this action. This was evidently the view of both Judge and Mrs. Putnam, as the stocks, when received, were treated in the same manner as the other trust securities.

A careful consideration of the other questions raised does not affect the validity of the findings of the referee, and the referee's report, except so far as has been changed in some matters of detail by the court, is approved, and an order should be entered confirming said report, and for final judgment thereon. An additional allowance of $2,000 is granted to the plaintiff, an additional allowance of $1,750 is allowed to the defendant John R. Putnam; such allowances and taxable costs to be charged against the defendant Israel Putnam, Corliss Sheldon, as administrator of John R. Putnam, and C. H. Sturges, as executor of Mary S. Putnám. Costs and an additional allowance of $250 allowed the defendant the Lincoln Safe-Deposit Company, same to be payable from the trust fund before division.

Ordered accordingly.

(39 Misc. Rep. 715.)

LE BRANTZ y. CONKLIN et al. (Supreme Court, Special Term, New York County. February, 1903.) 1. WILLS-CONTEST-INJUNCTION.

Testatrix executed three separate wills. The beneficiary of the oldest will alleged that she was suffering from senile dementia for the last two years of her life, during which time she executed the two other wills. Held, that such beneficiary could sue in the Supreme Court to have the beneficiaries of the other wills enjoined from proceeding to probate them, in order that the rights of all the parties might be established in one

action. 2. SAME-RECEIVER.

Where testatrix executed three wills, and the beneficiary under the first sought in one suit to determine the rights of all the parties, and also asked that certain transfers from testatrix to the chief beneficiary under the second will be declared void, and that he be enjoined from disposing of any of the property received, the Supreme Court may appoint a receiver of such property, and a trust company, which has been appointed temporary administrator under the second will, will be appointed as such

receiver. Action by Sarah May Le Brantz against William G. Conklin and others to establish a will. Proceedings in Surrogate's Court enjoined.

Alexander S. Bacon, for plaintiff.
Delafield & Longfellow, for Wm. G. Conklin.
Morton Stein, for defendant Una May Mullins.
M. W. Divine, for defendant Campbell.
Gifford, Stearns & Hobbs, for Mary E. Corkery.

Hornblower, Byrne, Miller & Potter, for defendant New York Security & Trust Co.

Jolin K. Erskine, for defendant W. L. Le Brantz.

LEVENTRITT, J. This is an action brought by the plaintiff, child of an adopted daughter of the testatrix, to establish as her last will and testament an instrument dated January 28, 1899; that two subsequent wills, dated, respectively, April 14, 1902, and November 11, 1902, be canceled and decreed void; that certain deeds and assignments of mortgages standing in the name of the defendant Conklin, who is the chief beneficiary under the will of April 14, 1902, be canceled and decreed void; that he be directed to turn over to the exec

and 114 New York State Reporter

utors of the earliest will all the property he has received from the testatrix during the last two years of her life; that he be enjoined from otherwise disposing of any of the property received from her, and, together with the defendants claiming under the will of November II, 1902, from proceeding to the probate of the subsequent wills or the appointment of an administrator. The complaint also prays for the appointment of a temporary receiver.

It is claimed in the complaint and in the numerous affidavits submitted, that the testatrix, Sarah Ann Waters, was incompetent, and suffering from senile dementia, during the last two years of her life, and that both of the wills executed during that time were procured by fraud, trick, duress, and undue influence. It also appears that the defendant Conklin, on the day of the testatrix's death, filed the will under which he claims for probate, and secured the appointment of a trust company as temporary administrator, to which he then, or since then, turned over all the property in his possession, with the exception of a certain house, which he claims under a deed to him during the lifetime of the testatrix, but which, according to his own affidavit, it appears he took to hold in trust during her life, to become his at her death.

The defendant Conklin, in his answer, containing substantially a general denial, asks the disinissal of the complaint, while the defendant Campbell, claiming under the third will, asks, in addition, that that will be established.

I do not propose, on this application, to be drawn into any discussion of the voluminous facts, charges, and countercharges. It would be manifestly unfair to all the parties to allow the disposition of the preliminary motion to depend in any wise on decisions of questions of fact which can only be satisfactorily determined on the trial. Even were it desirable, I would find it impossible to do so. The preliminary question of the testatrix's capacity underlies the whole proceeding. On the papers before me, that is a complicated question. Beyond that the liberal charges of fraud and undue influence, empliatically made and circumstantially supported, and as emphatically and circumstantially denied, make this peculiarly a case where the court without the parties before it is on extremely dangerous ground in seeking to place its judicial finger on the exact truth.

In view of the varied interests represented, and in furtherance of such litigation as will best dispose of most of the questions in one suit, I am disposed to enjoin the proceedings in the Surrogate's Court until the determination of this action. The form of action brought by the plaintiff has the support of authority. Code Civ. Proc. § 1865; Voorhees v. Voorhees, 39 N. Y. 463, 100 Am. Dec. 458; Bowen v. Idley, 6 Paige, 46. If she succeeds in establishing the will, she may obtain the relief canceling the deeds and assignments prayed for. Voorhees v. Voorhees, supra. So, too, the subsequent wills will be set aside as invalid. Bowen v. Idley, supra. Failing in her attempt. the defendant Campbell may, by virtue of the prayer in his answer, establish, if he can, the will under which he claims, or the defendant Conklin, by an amendment of his pleading, obtain the relief so far as his instrument is concerned. It must be obvious that, granting the

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