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(184 N.Y.S.) See, also, Matter of Lowden, 106 Misc. Rep. 707, 175 N. Y. Supp. 591.

Believing as I do that the propounded paper expresses the intention of the testator, it is with great reluctance that I conclude that it may not be given effect under the statutes and decisions of the courts of our state. It is but one more example of the dangerous practice of laymen attempting to prepare their own wills without competent legal advice and assistance, and which on numerous occasions has led to most disastrous results. I hold that the instrument offered for probate is not signed by the testator and the witnesses at the end thereof, and cannot therefore be admitted to probate as his last will and testament.

Probate must therefore be denied. Costs will be awarded to proponent and to the special guardians, to be taxed on notice and paid out of the estate.

(112 Misc. Rep. 163)

In `re BUCKENTHIEN'S WILL.

(Surrogate's Court, Bronx County. May, 1920.) Wills ww123 (3)—Will held not signed by testator and witnesses at the end

thereof as required by statute.

A propounded instrument, consisting of a sheet of paper folded so as to make two leaves and four pages, having on the first page the printed form of a will, with blank space filled in with handwriting setting forth several legacies, "continued on next page," followed by a paragraph appointing executors and the testimonium clause, the signature of decedent and of two attesting witnesses, and an attestation clause, and again the signatures of the attesting witnesses, with their addresses, the second page of which contained certain dispositions, was not signed by testator and the witnesses at the end thereof, as required by statute, and hence would be denied probate. Proceeding for probate of an instrument as the last will of Emil L. Buckenthien, deceased. Probate denied.

Howard C. Kelly, of New York City, for proponent,

SCHULZ, S. The propounded instrument consists of a sheet of paper folded so as to make two leaves and four pages. Upon the first page

is the printed form of a will having the usual blank spaces which are filled in with handwriting. Several legacies are set forth, and the blank space provided for that purpose being filled, and apparently being too small for the additional provisions which the decedent desired to make, there appear the words "Continued on next

paragraph providing for the appointment of executors then follows, after which are the testimonium clause, the signature of the decedent and of the two attesting witnesses, an attestation clause, and again the signature of the attesting witnesses and their respective addresses.

On the second page, in apparently the same handwriting as that upon the first page, is the following:

"My place business is to be sold as soon as a fair price avails or can be realized. The house situated at 1051 Tinton ave. which is owned by my sister

page.” A

Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Minnie F. Goerlich and myself, jointly, should be sold as soon as is most convenient and a good price can be realized, after all has been attended to the money should be added to my cash in the Yorkville and the Maiden Lane Banks, and divided as stated on front page, this is my wish and must be so attended to. I also state there shall be no bondsmen needed in executing this my will."

1

One of the witnesses died, and her handwriting was duly proved. The other witness testified to the proper execution of the first page

of the paper, but denied any knowledge as to whether the writing on the second page was or was not there when the testator affixed his signature after the testimonium clause. .

The phrase "Continued on next page,” which appears on the first page, and the provision on the second page that "the money should be added to my cash in the Yorkville and the Maiden Lane Banks, and divided as stated on front page,” lead to the conclusion that the writing on the second page was upon the document when the decedent executed the paper, and this is strengthened by the appearance of the writing itself. There is no suggestion of fraud. The writing on the second page is undoubtedly material, substantial, and dispositive in character. Matter of Blair, 84 Hun, 581, 584, 32 N. Y. Supp. 845; Matter of Gedney, 17 Misc. Rep. 500, 41 N. Y. Supp. 205.

In Matter of Schroeder, 98 Misc. Rep. 92, 163 N. Y. Supp. 956, I had occasion to consider an instrument very much similar to the one now before me, and upon the reasoning of that case, and the authorities cited, I find that the propounded document is not signed at the end, and that probate must be denied. See, also, Matter of Fox, 184 N. Y. Supp. 187.

Probate denied.

(113 Misc. Rep. 196)

In re GUITERAS' ESTATE.

(Surrogate's Court, New York County. October 5, 1920.)

1. Taxation 876 (3)--Testamentary gift for public school

exempt from transfer tax.

Gift for public school, as well as one for private school, is within Tax Law, $ 221, exempting from transfer tax testamentary gifts to educational

corporations. 2. Taxation Com 876(3)-Testamentary gift for public school to town, is to

"educational corporation," within transfer tax exemption.

A town maintaining a free school system, to which a testamentary gift for a public school is made, is an “educational corporation," within Tax Law, $ 221, exempting testamentary gift to such a corporation.

[Ed. Note.-For other definitions, see Words and Phrases, Second

Series, Educational Corporation.] 3. Taxation 876(3)—Testamentary gift to foreign town exempt from

transfer tax.

A town, though of another state, to which testamentary gift is made for a schoolhouse, is within Tax Law, $ 221, exempting testamentary gift to "any" educational corporation, “wherever incorporated." For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(184 N.Y.S.) 4. Taxation C876 (3)—Bequest as well as devise to town for schoolhouse ex

empt from transfer tax.

Tax Law, $ 221, exempting from transfer tax testamentary gift of real property to a municipal corporation in trust for a specific purpose, does not cut down the kind of property wbich may be given a town for school purposes under the prior provision, exempting any testamentary gift

to any educational corporation. In the matter of the estate of Ramon Guiteras, deceased. Order fixing transfer tax amended.

See, also, 108 Misc. Rep. 487, 178 N. Y. Supp. 559.

Carter, Ledyard & Milburn, of New York City (Heber Smith, of New York City, of counsel), for executors.

Lafayette B. Gleason, of New York City (Schuyler C. Carlton, of New York City, of counsel), for State Comptroller,

FOLEY, S. The application to amend order dated September 26, 1918, fixing transfer tax is granted. Decedent left his entire residuary estate, approximately $260,000, to the town of Bristol, R. I., "for the purpose of erecting a public schoolhouse to be called the Guiteras school building, in memory of Elizabeth Wardwell Guiteras, my mother."

[1,2] The state comptroller urges that the legatee is not an educational corporation," within the provisions of section 221 of the Tax Law (Consol. Laws, c. 60), and that the transfer is taxable. An examination of that statute, of the provisions of the Education Law (Consol. Laws, c. 16), and of other statutes, however, convinces me that this transfer should be exempt. There is no statutory definition of an educational corporation. The General Corporation Law is silent as to what corporations come within that designation. The Education Law defines the functions and duties of the regents of the University of the state of New York and of the state education department, and confers upon them general management and supervision in educational matters over cities and school districts, public in their nature, and colleges, academies, and other private institutions. A board of education is established in each city of the state (article 33a). The construction urged by the comptroller would make a legacy of this kind exempt, if passing to a private college or school, but subject to taxation, if passing to a city, town, or school district for public school purposes. Can such narrow and discriminatory purpose be attributed to the Legislature in the enactment of this section? I think not. The language must be given a broad and comprehensive meaning. The cardinal rule in the interpretation of statutes is to give effect to the intention of the legislative body which enacted them. This intention is primarily to be ascertained from the language used, giving thereto the ordinary meaning. Osborne v. International Ry. Co., 226 N. Y. 421, 425, 123 N. E. 849; People ex rel. Onondaga County Sav. Bank v. Butler, 147 N. Y. 164. 41 N. E. 416.

There is no more important function of government than education. Our state Constitution requires that the Legislature shall provide for the maintenance and support of a system of free common schools, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

wherein all the children of the state may be educated. Const. art. 9, $ 1. To hold that the Legislature intended to confine the exemption to private schools would require an inference that it deliberately ignored the constitutional mandate. It would also charge the Legislature with ignorance of the provisions of the Education Law (heretofore quoted) passed at its same session in 1909. Legacies for the support of public schools should be encouraged, and should not be diminished by deductions for purposes of taxation. The Legislature clearly intended that the state should not profit from such gifts, for they relieve the general burden of the expense of education. The language of this section, by an amendment made in 1905, was changed by the elimination of the word “exclusively," which characterized the scope of educational and other corporations. Matter of Mergentime, 129 App. Div. 367, 113 N. Y. Supp. 948, aff'd 195 N. Y. 572, 88 N. E. 1125. In the Matter of Saunders, 77 Misc. Rep. 54, 137 N. Y. Supp. 438, an exemption was allowed in the case of a bequest to the city of Yonkers for a trade school. A municipal corporation maintaining a free school system as one of its functions is clearly an educational corporation within the statutory exemption.

[3] Neither can this exemption be denied to cities and towns of other states and limited to municipal and other public corporations of this state. The section reads that the exemption shall apply to such corporations "wherever incorporated.” Surrogate Slater, of Westchester county, in Matter of Burnham (Sur.) 183 N. Y. Supp. 539, recently held such transfers were exempt when made to a town situated in Connecticut. The decisions in this county in Matter of Andreas M. Miller, 109 Misc. Rep. 267, 178 N. Y. Supp. 554, and Matter of Carpentier, N. Y. L. J. December 24, 1919, have no direct application as neither related to gifts to educational corporations.

[4] It is claimed that the use of the words in section 221 exempting gifts of “real property to municipal corporation in trust for a specific purpose” is an indication of legislative intent to tax gifts other than of real property. This clause, however, must be held to be an additional exemption in favor of such gifts of real property for all public purposes other than "religious, educational, library, charitable," and others enumerated at the beginning of that section of the Tax Law. The construction adopted by me follows the liberal interpretation given to exemptions by the Appellate Division, First Department, in the Matter of Mergentime, supra, and the Matter of Rockefeller, 177 App. Div. 786, 165 N. Y. Supp. 154. In the exercise of discretion the original order is amended.

Motion granted.

(184 N.Y.S.) (193 App. Div, 463) PEOPLE ex rel. NEWTON, Atty. Gen., v. SPECIAL TERM, PART 1, SU

PREME COURT, NEW YORK COUNTY, et al. (Supreme Court, Appellate Division, First Department. October 15, 1920.) 1. Courts 70—Justice of Supreme Court may accept assignment out of

county.

A justice of the Supreme Court is authorized to hold court in any county, and while he cannot be assigned to a term outside his own department,

if he accepts such assignment, he is fully authorized to act. 2. Prohibition C10(1)-Only issued against tribunal without jurisdiction.

A writ of prohibition may only be issued against a court or other tribunal possessing judicial powers, where it is without jurisdiction, or is pro

ceeding, or threatening to proceed, in excess of its jurisdiction. 3. Criminal law m1024 (3) -- People have no right of appeal from order dis

missing indictment.

The people have no right of appeal from an order dismissing an indictment, whether the order is made by a court with or without juris

diction. 4. Criminal law w 100 (2)-Criminal jurisdiction not conferred upon any

particular part of Supreme Court.

When Const, 1894, art. 6, § 6, abolished Courts of Oyer and Terminer, the criminal jurisdiction which they theretofore exercised was conferred upon the Supreme Court generally, and not upon any part, term, or branch thereof, and neither by the Constitution nor by statute, nor by the general rules of practice, has a criminal term or branch of the Supreme Court been created or recognized, and the only reference thereto is in

rule 4 of the Trial Term rules of the First judicial district. 5. Criminal law w 100 (2)—Court rules relating to applications to different

parts of same court do not apply to criminal actions.

The rules that have been adopted by the Supreme Court prescribing the motions and applications that are to be made to the different parts of the court were not intended to embrace motions or applications in

criminal actions. 6. Criminal law ww 100 (2)—Special Term, Part 1, could hear motion to dis

miss indictment found at Extraordinary Term.

Where an Extraordinary Term, at which indictments were found, was not in session, a justice presiding at Special Term, Part 1, in his discretion could hear a motion to dismiss the indictments.

Application by the People of the State of New York, on the relation of Charles D. Newton, Attorney General, for an alternative writ of prohibition, to restrain Special Term, Part 1, of the Supreme Court in and for the County of New York, from further proceedings with respect to a motion made by Charles F. Murphy and others. Writ denied.

Application by the relator for an alternative writ of prohibition to restrain Special Term, Part 1, of the Supreme Court in and for the County of New York, and the Justice presiding thereat, and each of the defendants, from taking any further proceedings with respect to a motion made by the defendants Murphy, Baldwin, Walden, McCarthy, Smith, and Corn Froducts Refining Company for the dismissal of a joint indictment charging them with the crime of conspiracy presented against them on the 22d day of June, 1920, at an Extraordinary Trial Term of the Supreme Court presided over by Mr. Justice Weeks.

The petition of the relator shows that the Extraordinary Trial Term of the Supreme Court was duly appointed by the Governor to convene on the 11th day of August, 1919; that the Governor duly designated Mr. Justice Weeks

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

184 N.Y.S.—13

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