4. PAYMENT OF LEGACY-PETITION TO COMPEL-SUFFICIENCY OF ANSWER. The beneficiary filed a petition under Code Civil Proc. § 2804, to compel the payment of such legacy, alleging that the trustee had failed and refused to provide a comfortable home for petitioner, or to furnish him money from such legacy with which to provide himself a home. Code Civil Proc. § 2805, provides that if on the return of the citation, in such a case, an answer in writing, duly verified, is filed, setting forth facts which show that it is doubtful whether petitioner's claim is valid and legal, and denying its validity or legality absolutely, or on information and belief, a decree must be made, dismissing the petition. Held, that a verified written answer filed by the trustee, denying the charge of the petition, and alleging that he had performed, and was willing to perform, the duties of the trust, but that the petitioner insisted on going away from home, and in being influenced by those who were seeking to obtain the legacy, was insufficient to entitle the trustee to a dismissal of the petition.

Petition by John Riley against James J. Riley to compel the payment of a legacy. Petition granted.

T. H. Dowd, for petitioner.

M. B. Jewell, for trustee.

DAVIE, S. The will of James Riley, deceased, was admitted to probate by the surrogate's court of Cattaraugus county on the 21st day of September, 1891, and letters thereupon issued to James J. Riley, executor. The will, among various other bequests, con

tains the following:

"I give and bequeath to my brother John Riley the sum of one thousand dollars; said sum of one thousand dollars to be in lieu of, and in full for, any claim that my said brother may have, or claim to have, against me or against my estate, after my decease, and, if not accepted by him in lieu of any such claim, said bequest to become a part of my residuary estate. I hereby appoint my son, James J. Riley, sole trustee of said bequest, without bonds, to take charge of said sum of one thousand dollars, and to use it, for the comfortable support of my said brother, and to pay his funeral expenses; and, if any part of said sum shall remain after the decease of my said brother, said residue or remainder shall be divided equally between my son and daughters."

On the 29th day of May, 1893, the legatee, John Riley, filed his petition under section 2804, Code Civil Proc., alleging, among other things, that the said executor and trustee had failed and refused to provide a comfortable home for the petitioner, and to pay him any money from said legacy with which to provide himself a home. On the return of the citation the trustee appeared, and filed an answer in writing, duly verified, denying the charge of neglect and refusal to provide for the petitioner, and alleging "that he has provided, and been willing to provide, sufficient funds and a home for the said John Riley, and all things sufficient and proper for his comfort and support according to his station in life, but that said John Riley insists on going away from home, and being influenced by the advice of others, who want the funds which may be procured by the petitioner;" and thereupon the said trustee moved for a dismissal of said proceedings, pursuant to the requirements of section 2805, Code Civil Proc.

The determination of the jurisdictional question thus raised was reserved until the final submission of the case, and is now the

Surr. Ct.]

IN RE RILEY'S ESTATE.

The section of the Code refirst subject claiming consideration. ferred to (2805) provides that if, upon the return of the citation, an answer in writing, duly verified, be filed, setting forth facts which show that it is doubtful whether the petitioner's claim is valid and legal, and denying its validity or legality absolutely, or upon information and belief, a decree must be made, dismissing the petition. The requirements of an answer under this section are the same as under section 2718, where a creditor files a petition to The character of its contents is compel the payment of a debt. It must contain both a specific denial of the distinctly defined. validity of the claim, also an affirmative allegation of facts showing An answer denying the validity the doubtful nature of the claim. of the claim, without alleging the facts, is insufficient. In re Macaulay, 94 N. Y. 574. So is an answer which alleges the facts, Lambert v. Craft, 98 N. Y. 343. without the denial of validity. It contains The answer filed in this proceeding is insufficient, in both form and substance, to divest the surrogate of jurisdiction. no distinct denial of the legality or validity of the claim, nor does it deny the execution or probate of the will, or the existence or It does not allege an insufficiency of funds, validity of the trust. or any other valid reason for not performing the trust in accordance with the spirit and intent of the bequest. It simply alleges, in substance, that the trustee has performed, and is willing to perform, The only issue presented by the answer the duties of the trust. relates to the manner in which the trust is being executed, and that is a matter peculiarly within the jurisdiction of the surrogate's court. Express authority is conferred upon surrogates' courts to direct and control the conduct of testamentary trustees, (section 2472, subd. 3;) and to hold that an answer which simply puts in use the conduct of the trustee ousts the court of jurisdiction would render the provisions of the Code, last above cited, pracThe motion to dismiss the petition herein must tically nugatory.

be denied, and the case disposed of upon its merits.

The petitioner, who is now of the age of about 60 years, having no family of his own, had resided with the testator for several years After his death the trustee, who prior to the decease of testator. is one of the principal legatees under the will, continued to maintain the homestead, and petitioner resided with him continuously until the 25th of May, 1893, and during such period was reasonably well supplied with the comforts of life by the trustee. On that day, however, an altercation took place between petitioner and the trustee, and, in consequence, petitioner went to reside The attitude of the with a brother in the village of Salamanca. trustee in this matter, which perhaps is not so distinctly indicated by the answer as by the evidence produced upon the trial, is that he is willing to support and maintain petitioner at his own home, but that he is unwilling to advance any money out of said legacy to procure support for him elsewhere. The trustee asserts that he is clothed with a discretion as to the particular manner of executing this trust, and that his requiring the petitioner to reside with him

is only a reasonable and legitimate exercise of such discretion, with which the court should not interfere. It is undoubtedly true that, where a trustee is given a discretion as to the method of performing the trust, courts will not ordinarily interfere with a reasonable use of such discretion; but the claim of the trustee in this case is neither sustained by law, nor consistent with the equities. It is quite apparent that the legacy to the petitioner was not a gratuity prompted by love and affection, but a legacy. in satisfaction of a debt. Hence, if there was any ambiguity in the terms of the bequest, it should receive a liberal construction in favor of the petitioner. But no such ambiguity exists. The will neither by its express terms nor by implication confers upon the trustee any authority over the person of the petitioner, nor does it give him the right to dictate as to where petitioner shall reside. The bequest of the $1,000, or so much thereof as may be necessary for the maintenance of petitioner during life, is absolute, not dependent to any extent upon his place of abode. Petitioner has the free and unrestricted right to reside where he desires. Forman v. Whitney, 2 Abb. Dec. 163.

The petitioner is entitled to demand and receive from the trustee such portion of said legacy as is necessary for his support and maintenance, without regard to the question of his ability to support himself. Holden v. Strong, 116 N. Y. 471, 22 N. E. Rep.

960.

The will, in this case, does not make the trustee the judge of the amount required by the petitioner for his support, nor does it make the petitioner himself the judge of his own necessities. Where a will does not authorize the trustee to determine the amount to be paid for the support of the beneficiary, and does not authorize the beneficiary himself to determine the amount, such amount should be fixed by the court. Bundy v. Bundy, 38 N. Y. 410. The petitioner is a man of usually good health for one of his age, and at the present time undoubtedly capable of contributing to some extent, by his own exertions, to the expense of his maintenance. It does not appear that he has any property, aside from the avails of the legacy. Consequently, a proper regard for his future welfare and ccmfort dictates an economical management of this fund, and no greater amount should be directed to be paid to him than actually necessary; and I am satisfied, from the evidence in the case, that the sum of $150 per annum will be sufficient. And in fixing the limit at the comparatively small sum named I have considered the interests of the petitioner, alone, and not, to any extent, those of the residuary legatees, who are entitled to take whatever may remain of this fund after the death of the petitioner.

The evidence given upon the trial was largely directed to the conduct of the parties on the 25th of May, 1893, when the difficulty arose between them; the petitioner claiming that the trustee, on that occasion, assaulted and beat him without reason, and the trustee, on his part, denying such charge, and asserting that such

injuries as the petitioner then received were occasioned by his intoxication. The evidence is very contradictory, and by no means satisfactory, upon this subject; but it is of little consequence who was the party in fault at that time, so long as it now appears that the feeling of ill will thereby engendered, and still existing, between the parties, would render the home of the trustee by no means a congenial place of abode for the petitioner, and affords an additional reason for holding that the support and maintenance of the petitioner is not dependent to any extent upon the continuance of his residence with the trustee.

The amount to which the trustee is entitled on account of expenses incurred in the support of the petitioner will be adjusted and allowed to him upon his judicial settlement as such trustee, and in the mean time the trustee should file in the office of the surrogate an annual account of his proceedings as such trustee, and should also set apart the balance unexpended of this legacy, keeping the same invested, so far as practicable, for it is more than likely that the trustee would be required to account for interest upon this fund in case the principal proves insufficient for the support of petitioner during his lifetime.

(4 Misc. Rep. 355.)

In re CLAPSADDLE'S ESTATE.

(Surrogate's Court, Herkimer County. June 19, 1893.)

1. STATUTE OF LIMITATIONS-PAYMENT EVIDENCE.

Code Civil Proc. § 395, provides that an acknowledgment or promise in writing, signed by the party to be charged, is the only competent evidence of a new contract to take a case out of the statute of limitations, but that the section shall not alter the effect of a payment. A note against a decedent, barred by the statute, showed an indorsement of $50 within the statutory period. There was little evidence of any payment of money, but evidence that decedent said to his wife, the payee, at the time of the indorsement, "There; the note is all right now. My indorsement makes it all right." Held insufficient to bar the statute.

2 CLAIMS AGAINST DECEDENT-AFFIDAVIT.

An affidavit as to a claim presented by an administratrix against the estate is insufficient which does not state that no payments have been made on it.

Accounting by Hattie Clapsaddle, administratrix of Dennis L. Clapsaddle. Objections to allowance of claim. Sustained.

Upon the accounting in the above-entitled proceeding, the administratrix sought to prove and have established, as a debt due from the estate to her, the amount of a promissory note dated April 4, 1867, made by Dennis L. Clapsaddle and Lawrence Clapsaddle, promising to pay jointly to Harriet Clapsaddle, three years from date, $2,100, with use. J. M. Hyde, a creditor, filed objections to the claim of the administratrix, viz.: First, that the claim was barred by the statute of limitations; second, that the administratrix had not made sufficient proof of the claim, and that the proof and papers submitted were not sufficient to authorize the allowance of the claim. The note had indorsements written upon it in the handwriting of Dennis L. Clapsaddle, as follows: "May 1st, 1871. Received $200.00 as interest on within note. May 1st, 1875. Received $200.00 as interest on within note. May 1st, 1879. Received $200 as interest on within note. May 1st, 1890. Re

crived fifty dollars towards back interest." The administratrix presented on the hearing, as her claim, a copy of the note and indorsements, and statement that the amount claimed to be due from the estate of Dennis L. Clapsaddle to the claimant on the note September 30, 1891, for principal and interest, was $6,635.68, and this was verified by the affidavit of the administratrix, "that the amount of the above promissory note, as stated in the within note, is now justly due, and owing to her from the estate of Dennis L. Clapsaddle, and that there are no offsets thereto."

James Conkling, (James B. Rafter, of counsel,) for administratrix.

Charles D. Thomas, for creditors.

SHELDON, S. By the provisions of section 395 of the Code of Civil Procedure, "an acknowledgment or promise contained in a writing, signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract whereby to take a case out of the operation of the statute of limitations;" but this section does not alter the effect of a payment of principal or interest. The indorsement, in the handwriting of Dennis L Clapsaddle, dated May 1, 1890, was an acknowledgment by him at that date that he was indebted upon that note to the holder in the amount of the note, and interest, less the payments indorsed thereon; but the acknowledgment, though in writing, was not signed by the decedent, and therefore was not alone sufficient to lift the bar of the statute. The indorsement, however, is the admission and declaration of both the holder, Harriet Clapsaddle, and the maker, Dennis L. Clapsaddle, that $50 was paid on the note on the day of the indorsement, and a payment made that day would have the effect of renewing the note from the date of the payment. If this indorsement were the only proof on the subject of the payment represented by that indorsement, it would be suffi cient to support and require a finding that a payment of $50 was in fact made on May 1, 1890, on the note by decedent. Additional evidence upon the subject of that indorsement and the payment supposed to be represented by it was given, and the effect of it must be considered. In the case of Hulbert v. Nichol, 20 Hun, 457, Maynard, J., says:

"When it appears upon the face of the instrument declared upon that the statute has run against it, the burden is upon the party claiming under it to show that the case is excepted from the statutory bar; and, where the exception contended for consists of a constructive acknowledgment of the debt arising from part payment, the partial payment must be clearly established, and not be a matter of conjecture merely." And "the evidence to establish a part payment from which an acknowledgment of the debt and a promise to pay it is to be implied ought to be as clear, explicit, and unequivocal as that required to support a written acknowledgment or express promise to pay. Evidence which is just as consistent with the theory that no payment was made as with the presumption of payment should not be deemed sufficient."

The only testimony in support of the claim was given by Ellen H. Clapsaddle, a daughter of decedent and the claimant, who testified that she was not quite 26 when her father died; and that she had always lived at home with her father and mother; and