ties. In re Hoyt, 160 N. Y. 607, 55 N. E. 282, 48 L. R. A. 126; McLouth v. Hunt, 154 N. Y. 179, 48 N. E. 548, 39 L. R. A. 230.

The executor would probably be justified in retaining a reasonable sum in his hands out of the income from the boat to provide for emergencies in the way of repairs and current expenses and possible losses in the business. But the fund would belong to the widow, and if it were not needed for those purposes it should be paid to her. As arrangements have been made for the sale of the boat, it is not now necessary to make future provision for these contingencies.

If I am correct in this construction of the will, it follows that the widow is entitled to receive the $1,345.92 deducted from income and used to pay an obligation incurred during the lifetime of the testator, and the $3,075 reserved from income to meet depreciation. She is not, however, entitled to interest upon either of these sums. She has received the income from the $3,075, which was invested by the executor, and she has also indirectly received the income from the $1,345.92 because the principal of the estate has been increased by that amount.

I am asked by counsel to construe the will of Richard B. Chapman (father of the testator), under which Frank Chapman is the executor and Richard A. Chapman was one of the beneficiaries, and to pass upon the right of the executor to continue paying to himself a salary for his management of the estate. The executor claims that he has paid to the widow, as income derived from the Richard B. Chapman estate, some moneys which are properly part of the principal of the Richard A. Chapman estate, but the evidence fails to show just what income accrued from the Richard B. Chapman estate before and what accrued after the death of Richard A. Chapman. It seems to me that such questions ought to be determined in proceedings arising directly under the will of Richard B. Chapman, and I therefore refrain from making any ruling on those questions here.

Let a decree be drawn settling the executor's account in accordance with the foregoing, and submitted for signature on two days' notice. The decree should reserve all questions relative to the estate of Richard B. Chapman and payments therefrom. Upon the settlement of the decree, I will hear such suggestions as counsel desire to make in regard to the allowance of costs, disbursements, and commissions. Decreed accordingly.

(32 Misc. Rep. 193.)

In re DE CASTRO'S WILL.

(Surrogate's Court, Suffolk County. July, 1900.)

WILLS-PROBATE EVIDENCE TO ADMIT-Burden of Proof.

Where the alleged testatrix had been an invalid for years, and was much enfeebled, and the instructions as to the provisions of the will came from her husband, and there was no evidence that they emanated from deceased, nor that she ever knew of the provisions of the will, or that they expressed her wishes, probate was denied, since the burden of proof was on proponent to show that testatrix had an intelligent knowledge of the contents of the alleged will.

and 100 New York State Reporter

Petition to admit the will of Lulu V. De Castro to probate, to which objections were filed by one of the heirs and next of kin. Probate denied.

George G. Raynor, for proponent.

Theodore D. Dimond, special guardian for Jennie W. Jetter, contestant.

Timothy M. Griffing, special guardian for Madge L. De Castro, a minor.

PETTY, S. The instrument offered for probate as a will was executed by Lulu V. De Castro when she was enfeebled by disease from which she had been a sufferer for many years, and when she was near the close of her life. The instructions as to the provisions of the will were given to the draftsman by her husband, the proponent herein. The evidence does not show that these instructions were given by deceased to her husband, or that she ever read the will, or that it was ever read to her, or that she knew the provisions thereof, or that those provisions expressed her wishes. A will offered for probate must be the will of the testator, and of no one else, and when a testator is ignorant of the contents of the paper propounded it cannot be said to be his will. Proponents are bound to show affirmatively, as a condition of probate, that the testator had an intelligent knowledge of the contents of the will. Barry v. Boyle, 1 Thomp. & C. 422; Townsend v. Bogart, 5 Redf. Sur. 93; Hyatt v. Lunnin, 1 Dem. Sur. 14; Cooper v. Benedict, 3 Dem. Sur. 136; Heath v. Cole, 15 Hun, 100; Jones v. Jones, 42 Hun, 563; In re Green, 67 Hun, 527, 22 N. Y. Supp. 1112. In Re Sampson (Sur.) N. Y. Law J., June 7, 1891, the court said: "With the advanced age of the wife, her debilitated condition for years, her inability to plainly express her thoughts in speech, and the fact that the instructions in respect to its provisions had come from the husband, mere proof of formal execution was not sufficient to admit the instrument to probate. It was incumbent upon the proponent to prove to the satisfaction of the court that she understood the provisions of the instrument, and that they expressed her wishes at the time of its execution."

In Rollwagen v. Rollwagen, 63 N. Y. 504, the court of appeals held that where the deceased was shown to have mental capacity, but to have been undoubtedly impaired in mental power, and his will enfeebled by paralysis and disease, a party who offered an instrument for probate as a will must show satisfactorily that it is the will of the alleged testator, and upon this question he has the burden of proof. And in the same case Judge Earl observes: "There must, then, not only be proof of the factum of the will, but also that the mind of the testator accompanied the act, and that the instrument executed speaks his language, and really expresses his will." The proponents have failed by their evidence to satisfy me of these requirements. Under the facts and circumstances of this case, if the proof was clear as to the formal execution and attestation of the will, that would not be sufficient in order for me to admit the instrument to probate. See cases already cited. But the proof as to the execution of this instrument does not satisfy me that it was executed or attested in the manner prescribed by law.

Probate denied.

(54 App. Div. 14.)

CLEVELAND et al. v. ROTHWELL.

(Supreme Court, Appellate Division, Third Department.

MORTGAGES-FORECLOSURE-TENDER-WAIVER.

September 25, 1900.)

Where, in an action to foreclose a mortgage on decedent's real estate, plaintiffs absolutely refuse to assign the mortgage to a sole devisee, on her offering to pay the full amount of the mortgage and the accrued costs, such refusal obviates the necessity of an actual tender.

In an action to foreclose a mortgage on decedent's real estate, a sole devisee is entitled to an assignment of the mortgage and an order discontinuing the action, on payment of the full amount of the mortgage and the accrued cost.

Appeal from special term, Chemung county.

Action by Thurlow W. Cleveland and others against Nellie Rothwell, individually and as executrix of Jane E. Gregg, deceased, to foreclose certain mortgages. From an order denying defendant's motion to compel plaintiffs to assign to her, or to some person for her benefit, the mortgages sought to be foreclosed, and for an order directing the discontinuance of the action, defendant appeals. Reversed.

Argued before PARKER, P. J., and KELLOGG, EDWARDS, MERWIN, and SMITH, JJ.

John C. Dyott, Jr., for appellant.

Frank C. Ogden, for respondents.

PER CURIAM. The appeal in this case and in the case of Wells against the same defendant (66 N. Y. Supp. 1148) brings up for our consideration the question whether the residuary devisee of the mortgagor is entitled, upon payment, to have an assignment of mortgages that have been given by the decedent upon real estate owned by her at the time of her death. Prior to June, 1900, Jane E. Gregg died leaving certain real estate upon which she had given three mortgages. one of which, for about $1,000, is held and being foreclosed in this action by the plaintiffs, and the other two, for a like amount, are held and being foreclosed by the plaintiff in the Wells action. The decedent left a will, in which the defendant, Nellie Rothwell, was the sole devisee, and was also named as executrix. The will was duly probated, and letters testamentary issued to the said defendant on the 18th of June, 1900. The plaintiffs' attorney in the two foreclosure actions acted for the estate of the decedent in the proof of the will. Immediately after the proof of the will there was a disagreement between the attorney and the executrix as to the management of the estate. The attorney claimed that he was familiar with the business of the decedent, and had acted for her for several years, and could manage, dispose of, and close out the estate for the best interests of the creditors and of the devisee. For that purpose he wanted the title of the real property placed in his control. This the executrix and devisee declined to do, and the attorney declined to further act for the estate, and informed the executrix that he would represent the creditors, who were mostly his clients. Thereupon, on the 20th of June, 1900, evidently at the instigation and procurement of the attorney, the 66 N.Y.S.-16

and 100 New York State Reporter

two foreclosure actions were commenced. The real estate covered by the mortgages was substantially all the property left by the decedent. Soon after the suits were commenced the defendant, or some one on her behalf, applied to the plaintiffs in the actions, or their attorney, for an assignment of the mortgages to her, or to some one in her interest. There was evidently an offer to pay the full amount of the mortgages and the costs that had accrued. No actual tender was made, but the plaintiffs, or their attorney, who had full charge of the matters, refused absolutely to make any assignment. This obviated the necessity of an actual tender. Baumann v. Pinckney, 118 N. Y. 604– 616, 23 N. E. 916, and cases cited.

The defendant is not an heir at law of the decedent. Under the will, if that stands, she has the title, and is interested to realize as much as possible after the payment of the debts. The plaintiffs cannot complain if they get full payment of their mortgages. The rights of general creditors are not prejudiced, and their remedies are not affected.

These actions, in some of their features, are somewhat similar to the case of Bayles v. Husted, 40 Hun, 376, where an assignment was ordered on payment of the mortgage, and a discontinuance of the foreclosure action was directed, without costs.

Under the circumstances shown in the record before us, we are of the opinion that the defendant, being the devisee of the title, and having a right to have her interests protected, is entitled to an assignment of the mortgages and accompanying bonds upon payment of the amount thereof, with interest to the time of payment, and costs to the extent of $15 in each action; the assignment, if desired by the defendant, to be made to such person as she may designate (Twombly v. Cassidy, 82 N. Y. 155), the payment to be made within a time to be fixed by the order, and upon such payment the actions to be discontinued without further costs. Order reversed, with $10 costs and disbursements, and motion for assignment and discontinuance granted, upon terms stated in the opinion.

Order to be settled before SMITH, J.
Similar order in Wells v. Rothwell.

(54 App. Div. 21.)

In re BAKER et al.

(Supreme Court, Appellate Division, Third Department. September 25, 1900.) HIGHWAYS-BOARD OF COMMISSIONERS-CONFIRMATION — APPEAL — AMENDING REPORT.

Where, pending an appeal from an order of the county court confirming the report of commissioners appointed to pass on the question of laying out a highway, an application was made to the county court to compel an amended return by the commissioners touching the evidence taken before them, the county court properly denied the application, since the record for the appellate court should be the exact case considered by the county court.

Appeal from Washington county court.

Application by Samuel D. Baker and another to lay out a highway and discontinue a portion of a highway. From an order of the county

court denying an application for an order directed to the commissioners for an amended return, applicants appeal. Affirmed.

Commissioners were appointed by the county court to pass upon the question of laying out a highway. Testimony was taken, and the commissioners made their report. On motion the report was confirmed by the county court. An appeal was taken to this court from the order of confirmation. the appeal, this application was made to the county court to compel an amended return by the commissioners touching the evidence taken before them. The county court denied the application.

Pending

Argued before PARKER, P. J., and KELLOGG, EDWARDS, MERWIN, and SMITH, JJ.

Willard Robinson (Edgar Hull, of counsel), for appellants.
John B. Conway (Fred A. Bratt, of counsel), for respondents.

PER CURIAM. We think the county court properly denied the application. If the appeal had not removed the matter beyond the jurisdiction of the county court, it is still an appeal from the judg ment of the county court based upon the report of the commissioners and the evidence before the court as returned by the commissioners. To make a different record, with different facts, for this court, is not permissible. That would not, in any sense, be reviewing the county court. The record which comes here must be the exact case considered by the county court.

The order of the county court is affirmed, with $10 costs and disbursements.

(32 Misc. Rep. 487.)

HARRIS v. BRADLEY et al.1

(Supreme Court, Special Term, Albany County. June 16, 1900.) CHANGE OF VENUE.

A change of venue to accommodate the defendant making the application, and for the convenience of a few witnesses, will be denied where all the other defendants, including the principal officials of the applicant, have stipulated to try the case in the county in which the suit was brought.

Action by Melville A. Harris, suing on behalf of himself and others, against Edson Bradley and others. Motion for change of venue. Denied.

John A. Delehanty, for plaintiff.

Butler, Notman, Joline & Mynderse, for defendant Distilling Company of America.

Guggenheimer, Untermyer & Marshall, for other defendants.

BETTS, J. This is the return of an order obtained by the defendant Distilling Company of America for the plaintiff to show cause why the place of trial of this action should not be changed from Albany to New York county. The defendant the Distilling Company of America is a foreign corporation, and appears in this action by its attorneys, Messrs. Butler, Notman, Joline & Mynderse. All the other defendants appear by their attorneys, Messrs. Guggenheimer, Untermyer & Marshall. The time of all the other defendants except Dis1 Reversed on appeal, see 66 N. Y. Supp. 847.