ment of the estate, but the
charges must be reasonable. If
necessary, an agent may be em-
ployed at the cost of the estate.
Ib.

15. On an accounting, the Surro-
gate has jurisdiction to try every
question necessary to the settle-
ment of the accounts. The leg-
atees can adduce evidence to
charge the executor with more
assets than he acknowledges to
have received; and it is com-
petent for him, on the other
hand, to show in defence that
the assets were his own proper-
ty, and not part of the testator's
estate, at the time of the death.
Merchant v. Merchant. 432

ACKNOWLEDGMENT.

See WILL, 17.

the grant of administration, but
also declares the rule of com-
petency. Indebtedness to the
estate does not render a person
incompetent to administer, nor
impair his priority of right to
administration. Churchill v.
Prescott.
304

4. Letters of administration on the
estate of the deceased, as an in-
testate, having been issued, and
some of the next of kin having
applied for a revocation thereof
on the ground that the deceased
left a will; and it appearing that
a will had been executed, but
there being no proof that the
will was in the possession of the
deceased, or unrevoked, at the
time of his death,-Held, that
when administration has been
granted, and an existing will
or a will lost or fraudulently de-
stroyed, is alleged but not proved,
it is generally improper to re-
voke the letters. Holland v.
Ferris.
334

ADMINISTRATOR.

See ADMINISTRATION WITH THE
WILL ANNEXED, 1, 2, 3.
INVENTORY, 6, 7, 8.

1. The fact that the decedent died
intestate must be proved before
letters of administration issue;
and that is ordinarily shown by
establishing that no will can be
found. Bulkley v. Redmond. 281

2. The grant of letters of adminis-
tration does not preclude any
party in interest from instituting
proceedings in the Supreme
Court to establish a will lost or
destroyed by accident or design;
and on the will being proved
there, the letters of administra-
tion will be revoked.
Ib.

3. The statute not only prescribes
the order of preference between
the next of kin, in relation to

ADMINISTRATION WITH THE
WILL ANNEXED.

1. The direction of the statute,
that administration with the will
annexed shall be granted to the
residuary, general, or specific
legatees, or to the widow or next
of kin, or to creditors, "in the
same manner and under the like
regulations and restrictions as
letters of administration in case
of intestacy," makes it necessary
to require a bond with sufficient
sureties, in all cases-as well
where the grant is made to a
legatee as where it is made to the
widow, next of kin, or creditors.
Brown, Ex parte.

22

2. The section requiring "every
person appointed administrator
to execute a bond, includes an
administrator with the will an

Surrogate be, and the same is
hereby, in all things reversed;"
and "that the said Surrogate re-
sume and proceed with the ac-
counting in reference to the es-
tate of the said G. M., deceased."
This decree was affirmed by the
Court of Appeals. On the re-
sumption of the accounting be-
fore the Surrogate, an application
by the executors of G. M., for
leave to furnish additional proofs
on the question of legitimacy, was
denied. Clayton v. Wardell. 1

2. By the course of procedure pre-

vailing in courts proceeding ac-
cording to the practice and rules
of the civil law, the effect of an
appeal is to transfer the entire
case, not merely for review, but
also, if deemed proper, for trial;
and it is competent for the ap-
pellate court to hear further tes-
timony on the old, or on new
allegations.
Ib.

3. The appellate court may not only
affirm or reverse the judgment
below, but may modify it, or
make an entirely new decree in
accordance with its own views
of justice; and in such case its
adjudication is conclusive, and
the Surrogate has no authority
to hear further proofs on the
point so determined.
1b.

4. On allegations filed within a year
after probate, the Surrogate con-
firmed the probate. An appeal
was taken to the Circuit Judge,
and he affirmed the Surrogate's
decision; and an appeal was taken
to the Chancellor, which, under
the new constitution, was heard
and determined by the Supreme
Court. The decisions of the Sur-
rogate and the Circuit Judge
were reversed upon questions of
fact, and the Supreme Court di-
rected a feigned issue to try the
validity of the will. Held, that
until a final decision, the case
remains with the appellate court;

7. By the decree of the Supreme
Court, the will was declared not
to have been sufficiently proved,
the decisions of the Surrogate
and the Circuit Judge were re-
versed upon a question of fact,
and a feigned issue was ordered,
to try the questions arising upon
the application to prove the will
on the allegations. The issue
was tried, and the jury found
that the instrument was not the
last will and testament of the
deceased. J. M., one of the next
of kin, filed with the Surrogate |
a copy of the verdict, and a cer-
tificate of the County Clerk that
it was a final determination of

the issue by the jury; and he
thereupon moved for a revocation
of the probate. Held, that it was
not proper to revoke the probate
until the final decision of the
issue should be certified by the
Court.
Ib.

8. It seems the statute has not con-
ferred the right upon a party who
has not filed allegations and who
has not appealed, to contest the
probate on allegations filed and
appeal taken by another party.
Whether, independently of the
statute, such right exists by the
course of the ecclesiastical prac-
tice,-quare.
Ib.

9. When, upon allegations, it has
been fully determined that the
will is not sufficiently proved,
any of the next of kin not a party
to the contest, may avail himself
of the decision though it was not
obtained at his instance.

Ib.

12. The only case where the statute
directs a feigned issue as to the
validity of a will, on appeal, is
where the Circuit Judge has re-
versed the decision of the Surro-
gate on a question of fact. Ib.

13. In the present instance, the de-

cree of the Supreme Court was
not a final determination upon
the merits, but contemplated fur-

ing of R. S., at lawful interest."
This, with other gifts, was de-
clared to be in lieu of dower.
By a codicil, after reciting that
by his will she was "cut short
of an interest" in his landed
estate, he gave her the annual
interest on two thousand dollars,
loaned to B. C. Held, that all
the legacies were intended as
compensation for dower, and car-
ried interest from the testator's
death, on the ground that they
were given as an equivalent for
the relinquishment of a right, and
the legatee had no other means
of support under the will. Held,
also, that the legacies were in the
nature of specific bequests, so
that the accruing interest passed
to the donee on the testator's de-
cease. Parkinson v. Parkinson.
77

3. The testator gave his wife the

use, for three years, of his house,
either to occupy or to let, and at
the expiration of that time direct-
ed the premises to be sold by his
executors, and the proceeds to be
divided between his two sons,
Held, that the widow was bound
to keep down the ordinary taxes
during the term.
Ib.

4. The testator gave a moiety of
the residue of his estate to his
wife, "her heirs and assigns,"
and the other moiety to the "chil-
dren" of his late brother and
sister, "their heirs and assigns;"
and he authorised his executors
to sell his estate, and allow his
"wife to take the moiety thereof,
and pay the other moiety thereof
to the children of his said late
brother and sister." At the death
of the testator as well as at the
date of the will, several of the
children of his brother and sister
were dead,-Held, that the term
heirs was a word of limitation
and not of purchase; and issue of
the testator's nephews and neices
could not take. Stires v. Van
Rensselaer.
172

7. The will gave the testator's
daughter, E., the use of certain
property for life, and on her de-
cease, directed a sale and the
distribution of the proceeds.-
Among the legacies was one to
M., to be paid to her "in small
sums from time to time," at the
discretion of the executors. The
legatee survived the testator, but
died before the life-tenant. Held,
that the direction to convert into
money was absolute; that the
interest of the legatee in the re-
mainder, after the termination of
the life estate, was not contingent
on her surviving the life-tenant,
but she took a vested legacy on
the testator's death, which, in case
of her decease before payment,
passed to her legal representa-
tives. Held, also, that the discre-
tion of the executors, in respect
to the legacy to M., related to
the time and mode of payment,
and did not prevent the vesting
of the legacy. Conklin v. Moore.

179

8. After the expiration of a life
estate, the will directed the sale
of the property and the payment
of several legacies, and then gave
one half of all the residue of the
estate to P. D. and her six chil-
dren, "and to the survivor and
survivors of them." P. D. sur-
vived the testator, but died before