and 118 New York State Reporter insane through the birth of a child, and was thereafter confined in a lunatic asylum until 1878, although from 1872 until her discharge in 1878 she was in the convalescent hall attached to the hospital, attending to various duties that had been assigned to her. Upon leaving the asylum she went to live with her aunt, Emma Sanford, in Gowanda. In 1881, on account of treatment and under the belief that her aunt intended to send her back to the asylum, she left the home of Mrs. Sanford, to live with the family of Samuel M. Stuart, in Hamburg. In 1881 she applied to the Supreme Court for the removal of one George J. Greenfield, then her committee, and for the restoration of her property. The proceeding resulted in the continuing of the committee, but allowed the deceased to select her residence. and the persons with whom she desired to live. In 1888 her sisterthis contestant-was substituted for Greenfield as committee of her person and estate. In 1889 the deceased again applied to the Supreme Court for the discharge of her sister as committee, and also asked that the property held as such committee be transferred to the deceased. Then followed a protracted litigation between the sisters. Mr. George Gorham, to whom the matter was referred, reported that the deceased was competent to manage herself and her affairs. His report was confirmed by Mr. Justice Lambert, and on appeal to the General Term the same was affirmed; and in 1895 the Court of Appeals dismissed the appeal of Mrs. Mitchell to that court. In 1893 the decedent received from her committee, after deducting costs and expenses, approximately the sum of $64,000. About that time the decedent gave to Samuel M. Stuart a power of attorney to act for her, and Stuart seems to have continued to do business for her until she died. In one of the decedent's letters she says: "I have this day given to my uncle Samuel M. Stuart a power of attorney to act for me. I have known him since May 25, 1873, and he never betrayed my trust. It was the wish of Honorable Edward Sanford, my uncle, that I should cling to him, and I shall follow his advice." Through all her trials the evidence discloses the Stuarts to be steadfast in their friendship. In a postscript to a letter written by the deceased to Mrs. Blackmon in 1893 she says: "You speak of my generosity to uncle Samuel's family. I never shall have money enough to reward them for services rendered me for the past thirteen years. They have watched and protected me constantly from enemies far and near. They have advanced money to carry on a long litigation not knowing that they would ever be compensated for either money or services, and were it not for their true friendship I would to-day be in an asylum or in my grave. Yours was the service of a day. Theirs for years." The Stuart family undoubtedly from time to time received large sums of money from the deceased, causing her property to diminish from the amount which came to her in 1893 to the amount she possessed when she died. The deceased was a woman of refinement and intellectuality. She had a feebie mind. She was afflicted with deafness. She was shy of strangers, and lived a quiet and secluded life in the family of the Stuarts and their children, and in their society and in the society of their friends. Under all the circumstances of this case the contestant contends that, because of the confidential relations existing between the deceased and the Stuarts, the proponents must establish affirmatively that the will asked to be admitted to probate is the product of the mind of the deceased, and is her free, voluntary, and unconstrained act. While not sustaining the contention of confidential relations, it seems to me that the proponents have affirmatively established that the testamentary dispositions of her property, as found in the will, emanated from her mind, and that the execution thereof was her free, voluntary, and unconstrained act. The proceedings in the Supreme Court settled the question of her competency to manage herself and her property. She made a will before that time, for in 1894 she writes in a letter to Mr. Stuart: "I desire to make a new will, because the one I have calls for more money than I have. Please give this your immediate attention. I am so happy in my new home and my every wish is gratified." Again, in the same year she writes, in another letter to Mr. Stuart, "I am desirous of making a will which will secure my money in the possession of you both and your children." In 1896 the deceased called on Robert C. Titus, then a justice of the Supreme Court in this county, in his chambers in the city and county hall in the city of Buffalo, and he prepared a will under her directions, by which she bequeathed all her property to the Stuarts. The will in question in this proceeding was drafted by Judge Titus, who sent Frank J. Titus, an attorney in his office, to the deceased to witness the will and superintend its execution. While I realize that a substantial argument might be made from which directly opposite conclusions would be warranted than those reached by me, along the lines of an enfeebled mind, long confinement in the lunatic asylum, and certain eccentricities developed either through the encroachments. of old age, or from such feebleness and enforced confinement and the distressing effect such circumstances might have made upon the decedent, who was a woman of an extremely delicate and nervous temperament, and that the beneficiaries under this will are not blood' relatives or relatives by marriage, and that such beneficiaries have received in the course of their association with the deceased many substantial gifts of large sums of money, with all the pathos and struggles which mark the life history of this woman, it nevertheless seems to me that the deceased, from motives of affection and gratitude, chose the Stuarts to be the objects of her bounty, rather than her sister, and this view of the case I am constrained to follow. There are innumerable evidences appearing throughout the history of this whole proceeding covering the period that the deceased resided with the Stuarts, which satisfy my mind that a steady and continued design and purpose, prompted by the high motives of affection. and gratitude, was ever uppermost in her mind, to make the Stuarts, whom she believed to be responsible for her happy existence, the beneficiaries of her estate. While the evidence might be fairly construed to show that the mind of the deceased was somewhat enfeebled, it nevertheless appears that her mind was sufficiently strong, as manifested. by her various letters in her own handwriting testifying her delight in the way she was being treated, and manifesting gratitude and af and 118 New York State Reporter fection for the Stuarts, and showing a purpose, fixed and strong throughout all those years, to ultimately reward the Stuarts and their children for what the decedent considered, to use her own words, "Yours was the service of a day; theirs [referring to the Stuarts] for years." A decree may be entered granting probate. Probate granted. (41 Misc. Rep. 268.) In re HAMILTON'S ESTATE. (Surrogate's Court, Otsego County. July, 1903.) 1. TRANSFER TAX-MODIFICATION of Order. The surrogate has no power to modify an order fixing a transfer tax and allow a partial refund to the executor on discovery of a debt due by the estate, where no appeal has been duly taken from the order fixing the tax. In the matter of the estate of Hosea A. Hamilton. Proceedings for the modification of an order assessing the transfer tax. Application denied. Edson A. Hayward, for petitioner. WILLIS, S. This is an application for the refunding of a part of the transfer tax assessed against the estate of Hosea A. Hamilton, deceased. It appears by the petition and proofs submitted in support thereof that the decedent died on the 5th day of December, 1898, leaving a last will and testament, which was, on or about the 16th day of March, 1899, duly admitted to probate by the surrogate of the county of Otsego, N. Y., and letters testamentary thereon duly granted to the petitioner and one Topping as executors of said will. On March 27, 1899, an order was made by the surrogate of Otsego county, appointing Edson A. Hayward appraiser of the property of the estate, subject to the transfer tax law. On or about the 25th day of September, 1899, the report of the appraiser was filed in the office of the surrogate of Otsego county, in which the fair market value of the estate was appraised at $13,315.02. The report showed debts, claims, and expenses of administration, to the amount of $2,272.88, to be deducted from the value of the estate, as above stated, making the cash value of the property subject to tax $11,042.14, and the amount of tax thereon $552.10. On the 25th day of September, 1899, the surrogate of this county made an order confirming the said report, and assessing the tax upon the property of said decedent in accordance with said report. No appeal was ever taken from said order of confirmation and assessment of said tax. The time for taking said appeal has long since expired. In the petition now presented it is alleged that since the assessment of said tax another debt chargeable to the estate has been discovered, and the surrogate is asked to modify the decree of the said Surrogate's Court assessing said tax, and to direct that a proportionate part of the tax, based upon the amount of such debt, be refunded. It is claimed on the part of the comptroller that the surrogate has no jurisdiction to modify the decree at this time, the time to appeal having expired. There are cases holding that, where the surrogate has made a decree assessing a tax upon property not liable to taxation under the provisions of the transfer tax law, the surrogate, in making such decree, acted without jurisdiction, and that his decree was not merely erroneous, but, in so far as it included the nontaxable property, was entirely without jurisdiction. On the other hand, it has been held that the surrogate has no power to open or modify a decree assessing a transfer tax for errors of law made in treating the interest of a decedent in firm real estate as personalty, and in failing to make a deduction for mortgages existing upon the firm personalty, and that the decree cannot be opened or modified because of having appraised firm assets too high, or not making a sufficient deduction for firm debts. Matter of Wallace's Estate, 28 Misc. Rep. 603, 59 N. Y. Supp. 1084; Greene, Law of Taxable Transfers (Ed. 1901) 71, 72. In Matter of Morgan's Estate, 36 Misc. Rep. 753, 74 N. Y. Supp. 478, it is held that where, at a transfer tax appraisal, alleged deductible debts of a decedent have not been urged before the appraiser nor reserved for future action, as they may be in a proper case, and the time for an appeal from the order fixing the tax has expired, the surrogate is without jurisdiction to grant any relief in regard to said debts. See, also, Matter of Schermerhorn's Estate, 38 App. Div. 350, 57 N. Y. Supp. 26. In Matter of Connelly's Estate, 38 Misc. Rep. 466, 77 N. Y. Supp. 1032, the precise question presented here seems to have been decided adversely to the petitioner's claim in this proceeding. In the case last cited, after the appraisement of the transfer tax, a judgment was recovered against the executor upon a rejected claim, and a new claim, before unknown to the executor, had been presented to him, and he asked for a refund of the tax paid upon the amount represented by these claims, and some expenses incurred in the management of the estate. The application was denied by Surrogate Lester, and his well-reasoned opinion seems to cover the question here presented. I feel compelled to follow the cases above cited. The surrogate of this county undoubtedly had jurisdiction to decide as to the amount of debts with which this estate was chargeable, and, so far as appears, no tax was assessed against property not subject to taxation under the transfer tax law, and, as no appeal was taken from the order fixing the tax, I think that the said order should stand as made, and that this application should be denied. Application denied. Order to be entered accordingly, without costs. Application denied. (41 Misc. Rep. 278.) and 118 New York State Reporter In re STANTON. (Surrogate's Court, Rensselaer County. July, 1903.) 1. EXECUTORS-ALLOWANCES-EXPENSES. Where an executor conducts fruitless suits, he will not be allowed the expense thereof, though they were brought under advice of counsel. 2. SAME LIABILITY FOR INTEREST. An executor who mingled the funds of the estate with his own, but acted honestly and in good faith, will be surcharged with interest on such sums as have remained in his hands at the rate of 4 per cent., with annual rests. In the matter of the estate of William Stanton, deceased. Proceedings on the settlement of the accounts of the administrator. Decree rendered. Frank E. McDuffee, for executor. S. Edgar Reynolds, for Camile G. Mooney, guardian of Stanton G. Mooney, an infant. M. A. Tierney, for William A. Sherman, general guardian of Stanton Sherman, an infant. HEATON, S. On the 17th day of April, 1902, William A. Sherman, general guardian of Stanton Sherman, an infant residuary legatee named in the will of William Stanton, deceased, filed a petition asking that John S. Barry, as executor of the will of said William Stanton, be cited to show cause why he should not pay the legacy due said infant and render an account of his proceedings. Thereafter such proceedings were had that said executor filed his account for judicial settlement, and a citation was issued to all proper parties to attend such settlement. Objections were filed on behalf of two infant residuary legatees, and such objections have been tried. William Stanton died in December, 1893, and his will was probated March 9, 1894, when letters testamentary were issued to John S. Barry, executor therein named. The estate consisted of a farm, of which the executor was given power of sale, a few hundred dollars in bank, and about $1,200 worth of stock, implements, etc.; and yet, after nearly 10 years had elapsed, the two infant residuary legatees had to force. an accounting from the executor. So long a delay in the settlement and distribution of an estate left by a testator, free from complications, calls for the unqualified disapproval of the surrogate. The account, when filed, showed total receipts of $4,417.02, nearly all of which was received within six months of the appointment of the executor, and yet the account shows a charge of only $17.45 for interest received. From the oral examination of the executor, it appears that he did not keep, or at least was not able to produce, any written account for his receipts and disbursements on account of the estate; and, further, that he kept no separate bank account of the funds of the estate, but mingled them with his own. While Mr. Barry may have accounted for every cent of the estate money that he received, yet his failure to keep an accurate book account and a special bank 11. See Executors and Administrators, vol. 22, Cent. Dig. § 448. |