cept in the event that they should be living at the time of the death of the life tenant, or, if not then living, in the case that those dying left children who survive the life tenant. Except so far as there was a survivor coming within the designation employed in this sixth paragraph, it is apparent that there was no vesting of an interest in any particular case. Now, as to this infant defendant, it appears that her grandfather, Samuel T. Keese, a son of the testator, died before the life tenant, and so before any estate in remainder had vested in him. This defendant's mother also died before the life tenant; and, according to the second sentence of the sixth paragraph of the will, the share of Samuel had descended to her (the mother). But upon her death the share so vested apparently devolved upon the surviving children of the testator, since she, a grandchild of the testator, had no interest which survived her death, in the event that there were children of the testator who might take. That this was the scheme of survivorship which the testator had in mind is rendered perfectly clear by the concluding words of paragraph 6 which definitely stop the successorship in any share at grandchildren of the testator. The defendant Zaydee B. Hickox, being a great-grandchild whose mother and whose grandfather both predeceased the life tenant, took no interest, therefore, in the distribution of this trust fund.

Form of decision and judgment in accordance with this opinion may be presented upon notice of settlement.

Judgment accordingly.

(127 App. Div. 455.)

AMERICAN DISTRICT TELEGRAPH CO. v. WOODBURY et al., State Board of Tax Com'rs.

(Supreme Court, Appellate Division, Third Department. June 18, 1908.) TAXATION-ASSESSMENT OF FRANCHISES-REPORTS TO STATE BOARD OF TAX COMMISSIONERS-RIGHT OF BOARD TO ALLOW INSPECTION.

Tax Law, § 43, added to Laws 1896, p. 795, c. 908, by Laws 1899, p. 1591, c. 712, requires every person, etc., subject to taxation on a special franchise, to make a written report to the state board of tax commissioners, describing fully every special franchise possessed by such person, together with any other information required by the board; such reports to be made under oath, and a penalty being imposed for failure to make them. Plaintiff corporation sought to enjoin the state board of tax commissioners from making public its reports. Held, that the statute neither authorized nor prohibited publishing such reports, and hence the commission could exhibit them to any one having a legitimate interest in inspecting them, and should deny inspection thereof for improper purposes, whether or not such inspection could be had being in the discretion of the board.

Appeal from Special Term, Albany County.

Suit by the American District Telegraph Company against Egbert E. Woodbury and others, constituting the state board of tax commissioners of the state of New York, to restrain defendants from disclosing any reports made to them under the tax law. From an order denying a motion for an injunction pendente lite, and from an interlocutory judgment on demurrer to the complaint, plaintiff appeals. Order and judgment affirmed.

and 146 New York State Reporter

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

Elbridge L. Adams, for appellant.

William S. Jackson, Atty. Gen., and Timothy I. Dillon, Deputy Atty. Gen., for respondents.

CHESTER, J. The plaintiff seeks by this action to restrain the defendants, constituting the state board of tax commissioners, from disclosing the reports made or hereafter to be made by the plaintiff, under section 43 of the tax law (added to Laws 1896, p. 795, c. 908, by Laws 1899, p. 1591, c. 712), to the defendants, for the purpose of enabling them to determine the value of the plaintiff's special franchises in order to assess the same. The statute in question requires that:

* *

"Every person, copartnership, association or corporation, subject to taxation on a special franchise, shall make a written report to the state board of tax commissioners, containing a full description of every special franchise possessed or enjoyed by such person, copartnership, association or corporation, * ** * together with any other information relating to the value of such special franchise required by the state board."

And the section further provides that the state board"may, from time to time, require a further or supplemental report containing information and data upon such matters as it may specify."

These reports are required to be made under oath to the effect that the statements contained therein are true, and the board is authorized to prepare blanks to be used in making such reports, and a penalty is imposed for the failure to make them. The plaintiff insists that there is no warrant in law for making its reports public, and that to permit this to be done would work an irreparable injury in its business, and would be against public policy.

The tax law itself does not contain any provisions either authorizing or prohibiting the publicity of any reports required to be made. There is no provision in the law that the reports shall be private or confidential, nor is there any provision that they shall be public or open to the inspection of any one who desires to see them. The subject-matter has not been covered in the statute in one way or another. The fact is pointed out in the appellant's brief that several of the states have enacted statutes requiring reports of a kindred character to be kept private. While this may indicate the tendency of public sentiment in that direction, it also indicates that such states have deemed it necessary to enact laws to accomplish that result. This would also seem to be a cogent argument that the plaintiff's grievances should be addressed to the Legislature, rather than to the courts, which pos sess no legislative power. No aid is furnished by the citation of decisions in other states in cases which have arisen there under the statutes referred to. The defendants are public officers, charged with important public duties, yet I cannot believe that the reports which are required to be made to them under the tax law are public records in the sense that documents are which are required by law to be filed or recorded in public offices. They could, I think, properly exhibit these

reports to any one who could convince them that he had a legitimate interest in inspecting them. So, too, I think they could and should deny inspection of them to persons desiring to see them for the purpose of prying into the business secrets of a rival, or for idle curiosity, or for any other improper purpose. The matter is left wholly within their control.

The statute being silent on the question, the defendants, who are responsible for the due administration of their office, may, in the exercise of a wise discretion, either withhold or permit the inspection or disclosure of these reports, depending upon whether they can be convinced that such inspection or disclosure is for a legitimate purpose or not. For these reasons, the court should not enjoin the defendants from allowing any inspection or disclosure of these reports, because whether any ought to be allowed or not should be determined by them in the proper discharge of their public duty, having regard, of course, to the purpose for which they were required and made. I think the order made by the learned court at Special Term, denying the injunction pendente lite and granting an interlocutory judgment sustaining the demurrer to the complaint for insufficiency, was proper, and should be affirmed.

Order affirmed, with $10 costs and disbursements, and the interlocutory judgment should be affirmed, with costs. All concur.

In re ANDREWS.

(Supreme Court, Special Term, New York County. August 14, 1908.)

1. INSANE PERSONS-GUARDIANSHIP-ACCOUNTING BY COMMITTEE.

On motion by the committee of the estate of an incompetent for instructions as to payment of certain items, it appeared that the assets of the estate were $366,000, including furniture, etc., leaving securities of the market value of $320,000, yielding an income of $21,000 yearly, with cash in hand about $200, and that there would be due the committee in several months $4,500 allowed by the court, and the only probable income in the near future was some $1,700, leaving a deficit of $10,000. About $23,000 has been allowed the committee within eight months by orders of the court. The bulk of the estate consists of stock in a coal company, paying bimonthly dividends, recently decreased from 11⁄2 per cent. to 1 per cent. The incompetent was probably incurable, but her bodily health was good. Held, that as the estate, if carefully managed, would yield an income sufficient for every comfort until the death or recovery of the incompetent, the principal of the estate should not be impaired while it produced its present income, or until there was a substantial failure of income.

2. SAME-ACCOUNTING BY COMMITTEE.

In settlement of the accounts of the committee of an incompetent, the lease on certain premises should be surrendered, the incompetent having been taken to another place for treatment; the purchase price of an automobile, the necessity for which was not shown, should not be allowed; attorney's fees for removing a committee of the estate should not be allowed, an appeal in the proceedings therein being still pending; attorney's and physicians' fees incurred in removing the incompetent from one dwelling place to another should not be charged to either the principal or the interest of the estate, it not appearing that the welfare of the incompetent was subserved by the proceedings; and the allowance to the committee of the person should be reduced from $1,500 to $1,000

and 146 New York State Reporter

a month, on shrinkage of income, but the committee of the estate should be reimbursed for rental of a house for the incompetent during the term such rental was authorized by a prior order of court.

On

In the matter of Blanche L. Andrews, an incompetent person. motion by the acting committee of the estate for instruction as to the payment of certain claims. Claims directed to be paid as stated, and order to be settled on notice.

See 111 N. Y. Supp. 417.

John F. Devlin, for petitioner.

William M. Seabury, for Constant A. Andrews.

Cornelius J. Sullivan, special guardian.

DAYTON, J. Motion by acting committee of the estate for instructions as to the payment of $7,223.30, as follows:

"(1) Expenses incurred and paid by the committee of the person for support of incompetent and her household, including portion of rental of No. 737 Madison avenue prior to December 1, 1907, paid by committee of person, and for which he has not been reimbursed, $1,061.15.

“(2) Automobile purchased by Constant A. Andrews, as committee of the person, prior to December 1, 1907, for which he has not been reimbursed, $4,534.79.

"(3) Counsel fee and disbursements for services of counsel for Constant A. Andrews in appeal to Court of Appeals and in connection with application for change of abode of incompetent, $1,527.36.

"(4) Dr. Booth. for services in connection with application for change of incompetent, $100.”

The petition of John E. Roosevelt and Constant A. Andrews, as acting committee of the estate, shows assets as of January 6, 1907, to be about $366,000, including jewelry, furniture, glassware, etc., $26,000, leaving about $340,000 in securities. A subsequent statement as of July 31, 1908, has been furnished, showing the market value of said securities to be about $320,000, yielding an income of about $21,000. Cash on hand is about $200. The petition further shows that on September 26th next there will be due the committee of the person $4,500, as provided by an order of this court entered November 26, 1907, and that the only income to be expected in the near future is about $1,714, thus creating a deficit of about $10,000, to be met by a proposed invasion upon the principal through a sale of securities. The committee of the person is allowed by said order $1,500 per month for the support of the incompetent. Since that order was made the estate has been directed to pay $9,758.50 for the expenses of the proceeding to remove the committee of the estate, $1,383.39 for expenses of habeas corpus proceedings, $1,137.56 taxed costs and disbursements on appeal to Appellate Division from the order removing said committee, which order was affirmed, $10,500 to the committee of the person-a total of $22,779.45, all within a period of eight months. To this it is proposed to add the above $10,000, making a total of about $33,000. Annual income about $21,000. The $18,000 per annum so allowed to the committee of the person was to be expended in part by maintaining the Madison avenue house at a rental of $3,500, where alone the committee of the person resides, upon the suggestion that the incompetent would be benefited by the thought of her return there, and in

part by maintaining the incompetent at the Knolls, and now at Bloomingdale. For those expenditures he is, by that order, required to account, but so far as I am informed has not done so.

The bulk of the estate consists of 1,714 shares of the Elkhorn Valley Coal Company, valued at $257,000. Dividends therefrom, usually declared bimonthly, have recently been reduced from 12 to 1 per cent. If this shall continue, a considerable decrease of income will follow. If the principal be diminished, further decrease of income must ensue. In a former opinion I intimated that the maintenance of the Madison avenue house was ill-advised and that the furniture should be stored. I deem it proper to say at this juncture that the lease of those premises, expiring September 30th next, should not in my opinion be renewed. Less than $18,000 per year is more than sufficient for the luxurious care of this unfortunate lady in Bloomingdale or any similar institution, including automobile service, if those in charge so advise. The details of the claim for $1,061.15 are not supplied by the petitioners. So much thereof as was paid for rent of No. 737 Madison avenue prior to December 1, 1907, may be reimbursed out of income on presentation of a proper voucher. The other items thereof must be shown to have been properly expended, with vouchers attached, before passing upon their allowance. The purchase of an automobile was unauthorized. The necessity for its purchase or use is not satisfactorily shown. No good reason is advanced for diminishing the principal of the estate to pay for it. The special guardian has filed with me a letter in which he says:

"I feel that I ought to enter my protest as special guardian in the Andrews matter against the reimbursement to the committee of the person of the cost of an automobile. I do not think the purchase of one was at all necessary, and, coming at a time when the income of the estate has been reduced and the market value of the principal decreased, the responsibility of such a purchase should be placed upon the committee personally."

With

Mr. Andrews did not appeal to the Court of Appeals from the order of the Appellate Division removing him as one of the committee of the estate. That appeal is still undetermined. He may not therefore be reimbursed out of this property for his counsel fees and expenses, which doubtless are reasonable. At his instance habeas corpus proceedings were had in May or June, 1908, for the purpose of having the incompetent transferred to No. 737 Madison avenue. He was unsuccessful. He appealed. The order was affirmed. He made still another similar application, with the result that Mrs. Andrews was removed from the Knolls to Bloomingdale, where she now is. out questioning the value of the services of "counsel for Constant A. Andrews," $1,527.36, I am not satisfied that the welfare of the incompetent was involved or subserved in any of these proceedings, and therefore the expense thereof may not be charged against either the principal or income of her estate. Without questioning the value of Dr. Booth's services, the observations as to the $1,527.36 claim apply. Every dollar of the present principal of Mrs. Andrews' estate should be preserved, if possible. Her malady is pronounced by eminent experts, whose opinions have been approved and relied upon by this court in several proceedings relating to this incompetent, to be incurable;