HUTCHINGS vs. COCHRANE. sion. She had some education, could read, write, play on the piano; and, in the judgment of such men as her counsel Mr. Barrett, the Rev. Dr. Knox her pastor, and Dr. Hosack her physician, to whom she appears to have opened her mind freely, she was intelligent and perfectly rational. In regard to undue influence, I find no evidence in the case pointing to such a conclusion; but it is urged that an inference of that kind is to be drawn from the tenor of the will, as compared with a previous will, and from other circumstances thought to be suspicious. It appears that the decedent came to the determination to leave her property, which was quite moderate in amount, to the lady with whom she had boarded. That she was brought to this result by the suggestion, persuasion or interference of any person whomsoever, is not only without a particle of proof, but is rather negatived by the evidence of Dr. Hosack and Mr. Barrett. She gave as reasons for her determination, the kindness of the intended beneficiary, and the unkindness of her relatives. It can serve no good purpose to inquire into the origin or extent of these family differences; for even if I should judge the feelings of the decedent on this point utterly unfounded, which, however, I am far from saying, it would be entirely unwarrantable to assert that her mind had been poisoned by designing and interested persons. To sustain that idea there is no evidence, and fraud is not to be presumed on mere surmise and conjectures. It is obvious from Mr. Barrett's statements, that the will was made, not only on due deliberation, but after the fullest consultation with her legal adviser, and very decided efforts on his part to persuade her to a different disposition. These efforts were resisted, the subject was canvassed, and she remained of the same mind. Testamentary capacity conceded, every one is the judge of his own acts in respect to his testament; and where the instrument appears to have been executed after ample consideration, and in accordance CHURCHILL vs. PRESCOTT. with the expressed affections of the testator, it would be a very wanton exercise of power to attempt disturbing such a disposition, except upon clear evidence of fraud or imposition. I am perfectly satisfied that the will expresses the intentions of the decedent, and conforms to her real dispositions and affections; that she was abundantly competent to dispose of her property; and that the instrument propounded has been proved to have been duly executed as her last will and testament. It is admitted to probate accordingly. CHURCHILL vs. PRESCOTT. In the matter of the estate of JAMES L. PRESCOTT. THE statute not only prescribes the order of preference between the next of kin, in relation to the grant of administration, but also declares the rule of competency. Indebtedness to the estate does not render a person incompetent to administer, nor impair his priority of right to administration. THE SURROGATE. The husband of a sister of the intestate having applied for administration, on the return of the citation the intestate's brother appeared, and claimed priority of right to administer. The claim was contested, on the ground that the brother was indebted to the intestate at the time of his decease, and is thereby incompetent to administer. The statute not only prescribes the order of preference between the next of kin, in relation to the grant of administration, but also declares the rule of competency. Indebtedness to the estate, is not one of the circumstances specified in the statute as rendering a party incompetent. CHURCHILL vs. PRESCOTT. Where several applicants are equally entitled, such a fact may be taken into consideration by the Surrogate, in deciding between them. But a preference to administer, given by statute, can only be overcome by the rule of incompetency as declared by statute. So far is the indebtedness of the executor from being a sufficient reason for refusing the grant of letters, that provision is expressly made for the inclusion in the inventory of the debts due by the executor to the testator. (2 R. S., p. 84, § 14.) It is evident, therefore, that the subject was not left unconsidered in the case of an executor, and there is no reason to suppose that there was in this respect any oversight in regard to an administrator. If there were, the remedy must be legislative, and not judicial. The letters must, therefore, be granted to the party entitled to a priority under the statute. 20 GOODALL VS. M'LEAN. GOODALL vs. McLEAN. In the matter of the estate of JOHN HYER, deceased. Where the will contained the following clause, “Upon the death of either of my sons John or George, without lawful issue, the one-fourth part of the devises and bequests made to him in this my will shall go to his wife, if she shall then be living, and the other three fourths of the same shall be divided, share and share alike, among my surviving children and the legal heirs of those who may be deceased;" and the testator's son John died without issue, before the testator, leaving his wife, "then living;" and she survived the testator,-Held, that John's widow was entitled to one fourth of all the devises and bequests made to John. The condition that the widow of John shall "then be living," refers to the time of John's death, and not to the time of distribution. A clause of substitution is generally referable to the death of the testator. Where the devise or bequest is to the donee by name, with a gift over in case of death, if the event happen in the testator's life-time the ulterior gift takes effect immediately on the testator's decease. THE EXECUTOR, in person. S. P. HUFF AND A. UNDERHILL, for Legatees. THE SURROGATE. The testator devised and bequeathed to his wife, for life, one third of the rents, issues, and profits, of his real and personal estate, and the remaining two thirds, after certain deductions, he gave equally between his "sons and daughters, and the issue of such of them as may die leaving lawful issue, such issue to take the share the parent would have taken if living." On the death of his wife, and the majority of his youngest child, he directed the sale of his estate, and the distribution of the proceeds, as follows: "The proceeds of such sale shall be equally divided for the benefit of all my children, and the issue of such of them that may die leaving lawful issue; such issue to take the share or interest which the parent GOODALL vs. M'LEAN. would have taken." After various other provisions, the following clause occurs: "Upon the death of either of my sons John or George, without lawful issue, the one-fourth part of the devises and bequests made to him in this my will, shall go to his wife, if she shall then be living, and the other three fourths of the same shall be divided share and share alike among my surviving children, and the legal heirs of those who may be deceased. I do further order and direct, that in case of the death of either of my daughters without issue, their respective husbands, if living, shall have the one-fourth of what is in this my will given to them, and the remainder of the same shall be divided share and share alike among my surviving children, and the legal heirs of such as may be deceased.” The testator's son John died before the testator, leaving his wife "then living." She survived the testator, but died before the testator's widow. John not having left any surviving issue, the question is whether John's widow became entitled to one fourth of the devises and bequests. made to John by his father's will. I can see no reason why not. It appears to me, the exact contingency in the mind of the testator, upon which he designed to make the widow of his son the recipient of his bounty, has arrived. John has died "without lawful issue," leaving his wife "then" "living." In such case, says the testator, I give one fourth, "of the devises and bequests made to him in this will," "to his wife." Suppose this clause had not contained the words "then living," and provided for the gift of one fourth to John's widow in case he died without issue, could there have been a doubt that the widow would take, whether that contingency occurred before or after the testator's decease? The very object of such provisions is, in general, to prevent a lapse, and it might as well be contended that John's issue, if he had left any, would not have taken under the clause in favor of issue, as that the widow does not take. The condition annexed |