right which she had to compel her father's executor to sell the property and distribute the proceeds. The proceeds would pass directly into the hands of her executor as personalty, and be distributed as such.
The test as to whether the property was personalty or realty is, whether in the absence of a will the property would have passed under the Statute of Distributions, or under the Statute of Descent.
That it would pass to the personal representatives seems to be determined in Fisher v. Banta, 66 N. Y. 468, in which Judge ANDREWS says: "From the moment of the testator's death, the conversion took place, and the land became money for all purposes of administration. The impression of money was fixed upon it; the sons took their interest in the converted property as legatees, and upon their death, before actual sale, it would pass to their personal representatives."
The property passed from Mr. Abendroth as realty. By the rule of equitable conversion it became personalty in Mrs. Mills' hands, and the proceeds or the right thereto passed from her to her husband as personalty.
The equitable rule which under the will of Mr. Abendroth changed its character lost its legal fiction, and the property became not in equity, but in law, personal property passing from Mrs. Mills.
The case of property bought in by a trustee upon a foreclosure of a mortgage investment, the trustee not being authorized to invest in realty, is analogous, the real estate so taken is not to be considered real estate, it is in law and equity to be regarded as an investment in personalty. While it may be physically land, it is for the purposes of the trust personal property. It is not a question of what it is physically, it is a question as to what it actually is in law.
The only ground upon which it can be claimed that the succession to the proceeds of the real estate originally owned
by Mr. Abendroth, the right to which proceeds passed from his daughter, Mrs. Mills, to her husband, the respondent, can escape taxation is, the assumed right to reconvert in equity and take the property in specie, instead of the proceeds. But as laws providing for systems of taxation are to be construed as relating to facts, and not according to equitable rules, under the authority of the Matter of Sutton, above cited, the decree assessing the tax must be reversed, and the matter sent back to the appraiser for further hearing.
Let the appellants have costs of the appeal.
Decree reversed, with costs.
See EXECUTORS AND ADMINISTRATORS, 13, 14, 18, 20, 26.
1. BURDEN OF PROOF AS TO RIGHT TO, NOT AFFECTED BY PRIORITY OF AP-
Brothers of an intestate, his only next of kin, and a woman claim-
ing to be his widow, and as such appointed his administratrix, occupy
the same position before the court, upon an application to revoke her
letters, as to their relative rights to administer the estate; and where
the brothers sufficiently attack prima facie the status of the widow as
being a divorced woman, forbidden to marry in the State of New York,
the burden is upon her to prove a ceremonial or non-ceremonial mar-
riage with the intestate without the State. Matter of Gerlach.. 253
2. SAME.
Where administratrix, old and poor, has failed to prove before a
referee a ceremonial marriage with testator, and the only asset was a
claim for damages for death of intestate, and the party liable had been
active in attempting to oust the administratrix, the surrogate elected
not to send the matter back to the referee, as he might have done, and
concluded to take the evidence himself of the non-ceremonial marriage.
Id.
3. SAME
RELATIVES, NOT ENTITLED TO SHARE, ADMINISTER BEFORE THE
PUBLIC ADMINISTRATOR-CODE CIV. PRO., §§ 2660, 2663.
The rule of the Revised Statutes that relatives of an intestate,
although not entitled to share in his personalty, are entitled to ad-
minister upon it in preference to the public administrator, has not
been changed by section 2660 of the Cole of Civil Procedure as
amended in 1893, and such relatives must, under section 2663 of said
Code, be cited to an application for the appointment of an adminis-
trator. Matter of Lowenstien
364
4. SAME CHARGED WITH INTEREST ON FUNDS OF ESTATE DEPOSITED IN HIS
PRIVATE BANK.
Where an administrator, conducting a private bank, deposits therein
funds of the estate of his intestate and places them to the credit of
said estate, he is in the same situation as an individual who mingles
estate moneys with his own and is therefore chargeable with interest.
Matter of Thorp
5. SAME-PROTECTED IN HOLDING BANK STOCK FOor Several YEARS.
An administrator protected in holding dividend-paying bank stock
of his intestate for three or four years and until it had depreciated
considerably. Id.
6. SAME TEMPORARY ADMINISTRATORS- -EXECUTORS CHARGED WITH UNDUE
The rule that the court should refuse to appoint an executor the
temporary administrator of a decedent whom he is charged with hav-
ing unduly influenced in the execution of his will, is not so absolute
as to admit of no exception, and the majority of the parties in interest
request it, where the executors are peculiarly familiar with the estate
and where the charges, inferential and conjectural in their character,
are denied by such executor, his appointment would not be improper.
Matter of Hilton
7. SAME-DEPOSIT OF MONEY-INTEREST.
A temporary administrator must deposit the moneys of his estate
with a trust company, and if he fails to do so is chargeable with such
interest as would have been thus earned, but he cannot be charged
with any higher rate unless he has been guilty of misconduct. Matter
of Phelp
8. SAME PRO RATA PAYMENT OF DEBTS.
Where the personalty is insufficient to pay all the debts in full, the
temporary administrator should make only pro rata payments, and
any excess, paid by him in reliance upon the fact that the real estate,
if sold, would pay all the debts, must be surcharged against his ac-
count, with trust company interest added. Id.
9. SAME-NOT THE PROPER PERSON TO PAY ALL THE DEBTS.
Such an administrator, being a mere custodian, is neither authorized
nor bound to pay all the debts of the estate and should therefore,
after having accounted, be directed to pay any balance in his hands to
the administrator-in-chief for distribution by that person. Id.
10. ADMINISTRATION-PRESUMPTION OF DEATH-EVIDENCE.
Where a person has emigrated from a foreign country, without in-
tending to return there, a presumption of his death does not arise until
inquiry has been made for him at his last known place of residence in
this country. Matter of White
11. COSTS-CHARGED AGAINST ADMINISTRATOR PERSONALLY.
Where the administrator of the life beneficiary of a trust, in posses-
sion of the corpus, urges technical objections against a proceeding to
compel him to account therefor, the court will charge him personally
with the costs of the proceeding. Matter of Post..
See NOTE ON COUNSEL FEES OF EXECUTORS AND ADMINISTRATORS, p.
219. See APPEAL, 1; CONTEMPT, 1; EVIDENCE OF ADMINISTRATOR TO
E.TATE, p. 546; JURISDICTION, 4. 5.
ADMINISTRATOR WITH WILL ANNEXED.
1. GENERAL LEGATEE WILL BE PREFERRED TO TRUST COMPANY GUARDIAN OF
INFANT RESIDUARY LEGATEE-CODE CIV. PRO., § 2643.
A general legatee is entitled to administration with the will an-
nexed in preference to a trust company acting as guardian of an in-
fant residuary legatee and only next of kin of decedent.
Laws 1873, was only intended to enable such trust company to act for
Chapter 781,
next of kin where those of them who were entitled in priority were
disqualified or unable to act. Matter of Milhau...
2. EXECUTOR OF SOLE LEGATEE HAS PRIOR RIGHT OF ADMINISTRATION TO
184
NEPHEW OF TESTATOR.
Where a brother of testator dies after him, the son of such brother
is not of the next of kin of the testator, not being entitled in his own
right to share in the unbequeathed residue of the assets, and therefore
the executor of a sole legatee has, under Code Civ. Pro., §§ 2514, 2660,
a prior right to letters of administration with the will annexed.
ter of Haug
RENUNCIATION PERMITTED TO BE WITHDRAWN.
The surrogate may permit a renunciation of the right to administer
to be withdrawn where the renunciation is not general in its nature
and was only made for the purpose of the proceeding in which it was
executed. Id.
1. TEMPORARY ADMINISTRATOR.
Pending an appeal from a decree admitting a will to probate, a
temporary administrator will not be ousted at the instance of the
executors named in the will, on the ground that the preservation of
the estate requires it, where the administrator has given ample secu-
rities and the sureties of the estate are all investment securities, or
such as are valued because of the income regularly derived therefrom,
and are not subject to the fluctuations of what is characterized or
known as speculative stocks. Matter of Gihon...
59
2. REMITTITUR OF COURT OF APPEALS-POWER OF SURROGATE THEREUNDER.
Where the remittitur of the Court of Appeals dismisses,
costs," an appeal by executors from an order of the General Term,
denying their right to compel payment of a claim against another
estate, and remits the proceedings to the Surrogate's Court where
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