and 118 New York State Reporter over a shoe shop, and the last one (106), occupied by Leonard, is the only one that can be counted, and that I do, although it is in the same building with the shoe shop, as there is some evidence that it is entirely separated by appropriate walls. George Stephens, as agent for 505 West Seneca. Louis Coryell for 517 West State. But before the application for the certificate was made Louis Coryell had died. His death revoked his consent, and as to whether or not he was the owner of the property, or who owned it at the time the application was made, there is no proof other than that of occupants. The consent of the widow and one of the children, a minor of said Louis Coryell, I cannot count, for the reason at least one of the owners of the property did not sign, if it be conceded that Louis Coryell owned the property and died intestate. The number of valid consents which the defendant obtained was therefore five. There were II buildings used exclusively for dwellings within the 200-foot limit, and, since two-thirds of this number were not obtained, defendant was not entitled to the certificate in question, and it must be revoked. Ordered accordingly. (41 Misc. Rep. 465.) In re FERGUSON. (Surrogate's Court, Kings County. October, 1903.) 1. ADMINISTRATOR-APPOINTMENT-LEGATEE. A person whose share in the residuary estate is directed by the will to be held in trust for him during his life is only a beneficiary of a trust, and not a legatee, within the meaning of Code Civ. Proc. § 2643, giving a preference in administration of an estate with the will annexed to a legatee. 2. SAME-QUALIFICATIONS. Where a person has not been able to accumulate any property or support his children, but continually borrows money for his support, his application for an appointment as administrator should be denied for his "improvidence," within Code Civ. Proc. § 2661. In the matter of the application for the appointment of an administrator of the estate of Adelia K. Ferguson, deceased. Application granted. J. Alexander Koones, for petitioner. Robert T. B. Easton, for Margaretta A. Pomeroy and others. CHURCH, S. The executor nominated under the will which has been admitted to probate died before the issuance of letters testamentary. Application is made by Hamilton Pomeroy for the issuance of letters of administration with the will annexed to him, on the ground that he is the residuary legatee, and therefore entitled to same under the provisions of section 2643 of the Code of Civil Procedure. The question as to his rights to these letters turns, therefore, solely upon the question of whether or not he is the residuary legatee within the meaning of such section of the Code. 12. See Executors and Administrators, vol. 22, Cent. Dig. § 62. Under the provisions of the will in question, after making certain specific legacies, the will gives to the executor the residuum of all of the property, with full power of sale, with instructions to dispose of the residuum. It provides that certain specific sums shall be set apart and held by the executor in trust for certain beneficiaries, and after this is done it directs that of the remainder one half is devised absolutely to a person therein named, and the other half is directed to be held in trust during the lifetime of the petitioner herein, Hamilton Pomeroy, and upon his death to be held in trust until his youngest child becomes 21 years of age, when such money is to be divided among the children of said Hamilton Pomeroy. It has been held that the beneficiaries of a trust created under a will are entitled to be regarded as residuary legatees under the provisions of this section. Matter of Roux, 5 Dem. Sur. 523. But the question under discussion in that case was not applicable to the circumstances of the present case, as the question there rather turns as to the respective rights' of the beneficiary or a third party. In Matter of Treadwell, 37 Misc. Rep. 584, 75 N. Y. Supp. 1058, Surrogate Thomas has expressly held that, where a residuary estate is divided between certain persons, portions of which being given absolutely and the other portions in trust for the benefit of the persons therein named, the beneficiaries of the trust are entitled equally with the persons who share absolutely to letters of administration with the will annexed. it seems to me that this decision ignores the interpretation which the courts have put upon the word "legatee," namely, that it is a person who takes personalty under a will. Weeks v. Cornwell, 104 N. Y. 325, 10 N. E. 431. Judge Thomas, in his opinion, states that this is so, but states that the persons all being remaindermen or general legatees should be classed together. It seems to me that the Legislature, in providing for the persons who are to be entitled to letters of administration with the will annexed must be presumed to have had in mind the fact that many estates were left in trust, and so that when they used the word "legatee," which had received a specific and definite meaning by the decisions of the courts, they were presumed to use it in its strict interpretation, and that, if there had been any intention in their minds to permit the beneficiaries of certain trusts to have equal rights with persons who are direct legatees, they would have stated so. This is more evident to my mind as we know that in many cases property is specifically left in trust in consequence of the fact that the beneficiary of the trust is deemed by the testator incapable of attending to the management of his property if it was left to him intact. In fact, in this very will in question there is no doubt that the testatrix, while having regard and affection for Mr. Hamilton Pomeroy, did not regard him as a person of sufficient ability to take charge of his own property, and consequently she left it in trust for his benefit. If she had so regarded, or if she had thought that it was possible for him to act as trustee for this entire estate, there is no question that she would have named him with his brother, Ralph Pomeroy, as an executor and trustee, or at least would have provided that in the event of his brother Ralph's death he should then be entitled to act as such trustee. I am therefore and 118 New York State Reporter compelled, with reluctance, to disagree with Judge Thomas on this matter. But it seems to me that, even if Mr. Hamilton Pomeroy was entitled, as residuary legatee, to letters of administration with the will annexed, he is not a proper person to receive the same, on the ground that he is improvident, within the meaning of section 2661 of the Code. The generally accepted definition of "improvidence" is lack of prudence, care, and foresight, and this provision of the Code has been interpreted to mean as follows (Coope v. Lowerre, 1 Barb. Ch. 45): "The improvidence which the framers of the Revised Statutes had in contemplation as a ground of exclusion is that want of care or foresight in the management of property, which would be likely to render the estate and effects of the intestate unsafe, and liable to be lost or diminished, in case administration thereof should be committed to such improvident person." With this legal definition of the meaning of this word, the matter is therefore left to the sound discretion of the surrogate in the peculiar and special facts of each particular case. In this particular case it appears that Hamilton Pomeroy has not made a success of his business life. It appears that he has been a lawyer, a stenographer, a book agent, has acted as editor on some small fraternal paper, and been engaged in many things. It also appears that for a large portion of the time when he was engaged in the practice of law he was acting as clerk at a very moderate salary for a firm in New York City, and that his services were of a general character as lawyer, stenographer, clerk, and incidentally editor of a fraternal paper in which the persons were interested. It appears that he has been unable to support his family, and that the support of the children has been largely due to assistance received from his relatives, and it also appears that he has been almost continually borrowing from his brother, Ralph Pomeroy, various sums of money, mostly in small amounts. It may be that this man has been particularly the victim of bad luck, but, after listening attentively to his own testimony and the evidence which was given in the matter, it seems to me that he belongs to one of that class of persons who seem to be absolutely incapable of making a success of their business life. This is further accentuated by his failure to make his living expenses conform to the amount of his earnings, thus necessitating repeated applications to near relatives for sums of money to relieve him from the indebtedness into which he had become involved. It seems to me that in testing the meaning of the word "improvidence" we should not limit it by a man's ability to hold large sums of money which he has never obtained, but rather we should consider whether a man has care and foresight so as to be enabled to acquire any property. It seems to me, therefore, that to place a man who has been unable to acquire any property to any extent whatever, who has been unable to make a success of his life, as trustee of a large estate of this kind, is subjecting the same to a risk which was not within the contemplation of the statute or of the testatrix. It is quite evident that this testatrix did not regard this Hamilton Pomeroy as possessed of suf ficient ability and foresight to take care of that which she would naturally give him, as she devised the same in trust for him to his brother Ralph, and made no provision whatever for the possible contingency which has arisen by the death of Ralph. If she had regarded this nephew who now seeks to be appointed administrator with the will annexed as being of sufficient competency, there is no doubt but that she would have given him his share absolutely; or if, for any reason, she did not wish to do that, it is very probable that she would have made a provision that, in the event of the death of the executor, then he should act in his brother's stead. Nor does it seem to me sufficient to say that the man could give a bond of a surety company, who will be responsible for his actions. If we consider that to control, then the personnel of the administrator would not enter into the case in any event, and the provisions of this section of the Code would be rendered nugatory. The theory of this section, as I understand it, is this: It is not as to whether the estate, in the event of an administrator's mistake, will be enabled to recover from a surety company for the mistakes, but that it should not be subjected to the chances of loss in the first instance. Accordingly Margaretta Pomeroy, the executrix and principal beneficiary of Ralph Pomeroy, and who is also a specific legatee under this will, seems to me to be the person best entitled to letters of administration upon this estate. Letters of administration with the will annexed will issue to her accordingly upon giving the bond required by statute. Application granted. (41 Misc. Rep. 414.) In re MATHER'S ESTATE. (Surrogate's Court, Oneida County. September, 1903.) L SURROGATE's Court-VACATING DEcree. Code Civ. Proc. § 1290, providing that a motion to set aside a final judgment for error in fact not arising upon the trial shall not be heard, except as specified in the following section, after two years from the filing of the judgment roll, does not apply to the Surrogate's Court, and he has power without limitation as to time to vacate or modify a decree in a proper case. 2. TRANSFER TAX-VOLUNTARY PAYMent-Recovery. An uncle conveyed property to his nephew, who did not record the deed. Thereafter the uncle devised the nephew a life estate in the same property, and at the appraisal for the transfer tax the nephew testified falsely that his uncle died seised of the property, and the nephew paid the transfer tax on his life estate. Held, that eight years after the entry fixing the tax generally the judgment will not be modified by deducting the tax paid by the nephew, he having paid the same voluntarily, and with a full knowledge of the facts. In the matter of the estate of Joshua Mather. Motion to modify order assessing transfer tax. Granted. Lindsley & Mackie, for Ida Mather Lovelace and others, as administrators. Josiah Perry, for Maud Mather McChesney and special guardian. Charles R. Coville, for State Comptroller. 84 N.Y.S.-70 and 118 New York State Reporter CALDER, S. This is an application made by the administrators of the estate of Charles W. Mather, deceased, and by certain of his heirs at law to modify an order dated January 8, 1895, assessing a transfer tax upon the estate of Joshua Mather, deceased, by deducting therefrom the sum of $4,852, the amount of the tax paid by Charles W. Mather upon his life estate in the Arcade property, situate in the city of Utica, N. Y., and by excluding therefrom the sum of $175,000, the amount at which said property was valued, upon the ground that the same was not owned by Joshua Mather at the time of his death, but was the property of said Charles W. Mather, and that the Surrogate's Court did not have jurisdiction over it for any purpose of taxation. Joshua Mather died on the 18th day of August, 1893, leaving a last will and testament, dated January 10, 1893. Said will, among other things, devised to his nephew, Charles W. Mather, a life estate in his real property, with power to dispose of the same by will to any or all of his children, and, in case he did not exercise that right, then said real property should go to the heirs of said Charles W. Mather in equal portions. On October 2, 1893, proceedings were instituted to assess the transfer tax, and on January 8, 1895, an order was made fixing the value of the life estate of said Charles W. Mather at the sum of $216,331, in which was included the sum of $175,000, the value of the Arcade property, and the amount of the tax was fixed at $10,911, in which was included the sum of $4,852, the tax upon his life estate in said Arcade property, and the tax upon the remainder over was suspended for the reason that it was subject to be defeated. Said sum of $4,852 was paid by Charles W. Mather personally to the treasurer of Oneida county on or about February 12, 1895. Upon the hearing before the appraiser said Mather testified that at the time of his death Joshua Mather owned certain pieces of real property, among them being "lot and store known as 'Arcade Property,' being 120 feet on Genesee street, thence 56 feet and 40 feet to Bleecker street, thence along Bleecker street 152 feet to Charlotte street, thence northerly along Charlotte street 80 feet, thence 150 feet to Genesee street, the place of beginning." Said Charles W. Mather died November 4, 1899, and administrators of his estate were duly appointed by the Surrogate's Court of Oneida county. On or about the 1st day of April, 1891, Joshua Mather, for the expressed consideration of $1, executed and delivered to said Charles W. Mather a deed of the Arcade property, above referred to, and the same was owned by the said grantee at the time of his death. Said deed, however, was not put on record until November 11, 1899. The application for the relief herein sought was made on or about February 17, 1903. It is urged in behalf of the State Comptroller that the Surrogate's Court has not power to vacate or modify the order in question, as the remedy of petitioners was by appeal, and the time to do so has expired; and that the relief asked for is not based upon any of the reasons stated in section 2481, subd. 6, of the Code of Civil Procedure, which, among other things, provides that the surrogate has power "to open, vacate, modify, or set aside, or to enter, as of a former |