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The Revised Statutes provide that:

"Every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless expressly declared to be a joint tenancy." Rev. St. (1st Ed.) pt. 2, c. 1, tit. 2, art. 1, § 44; Everitt v. Everitt, 29 N. Y. 39, 72; Bliver v. Seymour, 88 N. Y. 469, 478; Van Brunt v. Van Brunt, 111 N. Y. 178, 187, 19 N. E. 60; Mills v. Husson, 140 N. Y. 99, 104, 35 N. E. 422.

In this case the gift was not to the children of the testator as a class, but to children specifically named; and therefore, upon the death of Sebastian and Anna, the legacies to them lapsed, and the decedent died intestate as to the portion of his property they would have taken, had they been living at the time of his death. Matter of Kimberly, 150 N. Y. 90, 94, 44 N. E. 915; Moffett v. Elmendorf, 152 N. Y. 475, 489, 46 N. E. 845, 57 Am. St. Rep. 529. In the Case of Kimberly the estate was to go to three sisters of the testator, Mary, Anna, and Louisa, of whom Mary predeceased the testator. In Moffett v. Elmendorf certain real property was devised to an aunt and seven cousins, specifically named, two of whom died before the testator. In both cases the court held that, certain designated persons having been named as legatees or devisees, they took as tenants in common, not as joint tenants, and that, therefore, there was an intestacy as to the portions of the estate that would have gone to the deceased legatees or devisees.

The special guardian claims that, the beneficiaries in this case being children of the testator, it was his intention that they should take as a class. But, if such was his intention, he failed to express it in his will, and, as there is nothing else to distinguish the case before me from those cited, it follows that the testator died intestate as to the portion of his estate bequeathed to the two children who predeceased him.

The special guardian has also submitted that the life tenant should be required to give security for her proper care and management of the residuary estate to be held in trust under the terms of the will; and her attorney has stated that she has no objection to giving such security as trustee, and not as executrix, but questions the right of the court to require it under section 2638 of the Code of Civil Procedure. The executrix may turn over the fund to herself as trustee, upon giving security.

Decreed accordingly.

(60 Misc. Rep. 52.)

In re BROWNELL.

(Surrogate's Court, Oneida County. June, 1908.)

1. TRUSTS-PAYMENT OF EXPENSES.

Attorney's fees and expenses incurred in the management of a trust estate, created by a will showing intention that trust fund should remain intact, should be paid out of the income.

[Ed. Note. For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 389–392.] 2. WILLS-CONSTRUCTION-DIVISION OF ESTATE.

Testator devised a certain sum in trust, the income to be paid to his wife for life, and on her death to be divided equally between his brother and two sisters and the children of his deceased brother, share and share

and 146 New York State Reporter

alike, and provided that, if any of them should be dead with issue at the time of the decease of the wife, the share of the decedent should go to her issue, and if either of his sisters or brothers should not be living, but should have heirs of their body, the share of those so deceased should go to the heirs. Held, that the estate should be divided into four equal parts, one to go to his brother, if alive, and otherwise to his issue, one to each of his sisters if living, and to the issue of either if dead, and the remainder to the children of the deceased brother then living, and if any child should then be dead the issue of the dead child to take his parent's share.

In the matter of the judicial settlement of the account of George F. Brownell, as trustee under the will of Charles J. Fox, deceased. Decree rendered.

George M. Palmer, for Clarence Fox and others, administrators, and others.

George H. Minor, for George F. Brownell, trustee, and others. Brownell C. Fox (S. M. Lindsey, as counsel), in pro. per., and for James S. and Edwin P. Fox, contestants.

SEXTON, S. This is a proceeding for final judicial settlement of the account of George F. Brownell, as trustee in this estate. Objections were filed to an item of $172.33 and one of $200, balances due attorneys on the last accounting of the trustee and since paid by him out of the principal of the trust fund.

etc.

It is contended by the contestants that the payment should have been made out of the income. The facts are conceded. The fourth clause of the will directs the trustee to invest $15,000, and pay the income and profits thereof to the testator's wife during her lifetime, and upon her death "said sum of $15,000 to be divided equally," From the language used the testator intended that the trust fund of $15,000 should remain intact, else his direction, "said sum of $15,000 to be divided equally," etc., is barren. It is the duty of a trustee to handle the trust fund as directed by the will. He could spend no part of the $15,000, as that sum was to be divided upon the death of the testator's wife. It appears that, on March 15, 1898, the trustee paid said items of $200 and $172.33, respectively, at which time he had accrued interest on said trust fund, amounting to $711.59, which should have been used, instead of the principal. Matter of Albertson, 113 N. Y. 435, 21 N. E. 117.

The persons interested in the $15,000 trust fund, referred to in the fourth paragraph of the will in this estate, filed objections to the division of said sum per stirpes, as proposed by said trustee in his account, and insist that the same shall be divided per capita. To ascertain the intention of a testator in the disposition of his property, such intention must be gathered from the language used by the testator in his will, if possible. In the fourth paragraph of the will the testator provided a trust fund of $15,000 for the benefit of his wife during her lifetime, and upon her death directed that

"said sum of $15,000 to be divided equally between my brother, George Fox, and my sister, Kate Brownell, wife of Samuel C. Brownell, and my sister Edna, and the children of my deceased brother Jeremiah, share and share alike. Should any of them be dead at the time of said wife's decease, leav

ing issue, the share or shares of those so deceased shall go to their said issues, respectively; and in case, at the time of my said wife's decease, either of my said sisters, or my said brother George, shall not be living, but shall have heirs of their bodies, the share or shares of those so deceased shall go to their said heirs, respectively."

From the foregoing language I am convinced that the testator intended that said $15,000 should be divided into four equal parts, and one-fourth thereof, upon the death of the testator's wife, should go to George Fox, if living, and to his issue, if dead; that one-fourth thereof should go to Kate Brownell, if living, and to her issue, if dead; one-fourth thereof to testator's sister, Edna, if living, and to her issue, if dead; and the remaining one-fourth thereof should go to the children of testator's deceased brother, Jeremiah, living at the time of testator's wife's death, and, if any of said children should then. be dead, the issue of the dead child should take the parent's share.

The expression, "share and share alike," it is claimed, is meaningless in connection with the construction suggested. It seems to me that the expression, "and the children of my deceased brother, Jeremiah," refers to a class. There is nothing before the court, or in the will, to indicate that the trustee meant to give the children of Jeremiah more than he would have given their father, had he been living. So far as appears, had he lived, he would have shared equally with his brother and sisters, taking only one-fourth. Naturally, the testator would give the children the parent's share; and such intention in this particular case is borne out by the language used in the fourth clause of the will to the effect that, if any beneficiary should die, his or her share should go to the issue of the dead person's body. Jeremiah's children are not mentioned by name, but designated as a class. They were called "the children of my deceased brother, Jeremiah," indicating the testator's intent to substitute them in place of

their father.

I hold and decide that the children of Jeremiah take as a class, together receiving but one-fourth or share of said $15,000. In support of this construction, see Ferrer v. Pyne, 81 N. Y. 281; Matter of Walker, 39 Misc. Rep. 680, 80 N. Y. Supp. 653; Vincent v. Newhouse, 83 N. Y. 505.

The trustee is therefore charged with $15,000 under the fourth clause of the will, the same to be distributed as indicated in the trustee's account.

Decreed accordingly.

(60 Misc. Rep. 35.)

In re BROWN'S ESTATE.

(Surrogate's Court, Cattaraugus County. June, 1908.)

1. EXECUTORS AND ADMINISTRATORS-CLAIMS AGAINST ESTATE -PRESENTATION. A presentation to an administratrix of a written statement of a claim against the decedent's estate, showing the amount thereof, is necessary for its approval, and the fact that the administratrix was acquainted with its existence is insufficient to supply the want of such statement.

[Ed. Note. For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, §§ 764-766.]

2. SAME-ALLOWANCE.

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A statement of claims which have never been presented in writing to the administratrix, in her account filed, in the schedule of claims presented, together with the names of the claimants and the nature of their claims, is not an allowance of the claim.

[Ed. Note. For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 834.]

3. SAME.

Where a claim has been presented to an administratrix, an allowance is not to be inferred without some affirmative recognition thereof.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 834.]

4. SAME-CLAIMS OF ADMINISTRATRIX.

Where it appeared that the administratrix of an estate during the lifetime of the decedent paid premiums on a policy on his life, payable to her on his death, and after his death she received the amount of the policy, a claim by her for the premiums so paid should not be allowed, without proof of any request by decedent that she should pay such premiums.

5. SAME-PAYMENT OF TAXES.

Where an administratrix paid taxes on decedent's land before his death, and while he was incompetent, the amount thereof should be allowed her, though no request on his part to pay the taxes were shown.

[Ed. Note.

For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 734.]

6. SAME-Support of Decedent.

Where an administratrix before decedent's death expended money for the support of decedent and his family on his promise that it should be paid out of the estate, the amount thereof will be allowed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 734.]

In the matter of the estate of David N. Brown. Proceedings on settlement of administratrix's account. Decree rendered.

Nash & Bird, for administratrix.

D. E. Powell, for contestants.

DAVIE, S. David N. Brown died, intestate, February 7, 1905, leaving him surviving his widow, six children, and one grandchild, his heirs at law and next of kin. At the time of his decease he possessed a small amount of personal property, and real estate of the value of $6,000. Letters of administration upon his estate were issued, February 25, 1905, to the widow, who now presents her accounts for final judicial settlement, to which various objections are filed.

It is asserted on part of the contestants that the administratrix has failed to account for all the assets of the estate, but such claim is not sustained by the evidence. Decedent was married to the administratrix, his second wife, in 1872. He was then 50 years of age, actively engaged in business, apparently financially prosperous; and during the succeeding years he accumulated property to a considerable extent. For a year or more immediately preceding his decease he was incompetent, in consequence of ill health, and the administratrix assumed the general control of his business affairs, and the estate, for reasons not fully explained, has greatly decreased in value; but there is absolutely

no proof which would justify charging the administratrix with any other assets than those accounted for by her.

The account filed contains Schedule C, showing funeral expenses and disbursements of administration, and Schedule D, showing the debts of the decedent actually paid by the administratrix; and no substantial controversy arises in regard to the items thereof. The account also contains Schedule E preceded by the following explanation: "A statement of all claims presented to me against said estate, which remain unpaid, together with the names of the claimants, the general nature of the claims, and the amount of each."

In this schedule is set forth an itemized statement of the personal claim of the administratrix for taxes paid by her upon the real estate of the decedent and for moneys expended by her for miscellaneous expenses prior to decedent's death, to the amount of $451.66. She subsequently filed a supplemental personal claim to the amount of $2,759.98 for premiums paid by her upon two life insurance policies upon the life of decedent. This schedule also contained an itemized statement of the claim of Chloe Brown and of Olive Brown, two daughters of decedent, for $135.60 and $599.45, respectively, for moneys alleged to have been expended by them in the support and maintenance of the family for several years preceding the death of decedent. The controversy upon this accounting relates to these claims.

The daughters' claims will first be considered; and, as the facts are the same in regard to both, they will be considered together. It appears from the evidence that these claims were never formally presented to the administratrix by written statement, verified or otherwise; nor does it appear that either of the daughters has ever demanded or requested payment of her claim. The only recognition of either, in the course of administration, is the statement in Schedule E in relation thereto.

It is contended, on the part of the claimants and of the administratrix, that such recognition of these claims constitutes an allowance of the same, obviates the necessity of any formal presentation, and renders them liquidated demands against the estate, and that the burden of disproving them is upon the contestants. On the part of the contestants it is asserted that these claims are invalid, that they have never been presented to or paid by the administratrix, that they have not become prima facie liquidated demands, and, no consent having been filed under the provisions of section 2718 of the Code of Civil Procedure, that there is no jurisdiction upon this accounting to adjudicate upon the merits of the claims.

The Surrogate's Court has jurisdiction upon an accounting to determine whether or not a claim has been presented to and paid by the representative; but, if a claim has not been allowed within the legal signification of the term, and is disputed, no jurisdiction on the part of the Surrogate's Court exists without the filing of the consent provided for by the statute. The law is well settled that, where a claim has been properly presented, allowed, and paid by the representative, the production of the proper voucher for such payment upon judicial settlement makes a prima facie case for the representative, and the

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