"There shall continue to be local boards of health and health officers in the several cities, villages and towns of the state. In the cities, except New York, Brooklyn, Buffalo, Albany and Yonkers, the board shall consist of the mayor of the city, who shall be its. president, and at least six other persons, one of whom shall be a competent physician, who shall be appointed by the common council, upon the nomination of the mayor, and shall hold office for three years."

Under the Geneva charter (chapter 360, Laws 1897), the Legislature devised a different scheme for that new city, namely, that its board of health should consist of five members, to be appointed by the mayor for the term of five years each. The Public Health Law has been amended frequently since Geneva became a city, the last amendment to section 20 being chapter 559 of the Laws of 1913; but the general scheme for cities for the appointment by the common council, upon the nomination of the mayor of six commissioners for three years, with the mayor serving ex officio as a member of the board, has been continued as it was before the special legislation respecting Geneva required that in that city there should be a board of only five, who should be appointed by the mayor, not by the common council, and for five years, instead of three. In 1906 (chapter 253), the words, "except in cities of the first and second class," were substituted for the original clause, "except New York, Brooklyn, Buffalo, Albany and Yonkers," in section 20 of the Public Health Law, as quoted above. That was the year when the Legislature framed a general act for the government of cities of the second class. The clause "excepting cities of the first and second class" does not operate to include, within the operation of said section 20, every other city of the state irrespective of the terms of its own particular charter. Van Denburgh v. Greenbush, 66 N. Y. 1; Whipple v. Christian, 80 N. Y. 523. Since the Geneva charter was enacted with its special legislative design as to that particular city, section 20 of the Public Health Law has been amended seven times by re-enacting the section with minor changes, continuing the scheme for cities generally just as it was before the special legislation for Geneva was passed. In all this I see no evidence whatever that the Legislature intended, by any amendments to the General Law, to destroy the special method made applicable to the city of Geneva by its own peculiar charter. Of course the intent of the Legislature must govern, and all that the decisions of courts in previous cases can do is to aid us in interpreting the intent of the Legislature in this particular case. Under the rules of interpretation, stated again and again, a special statute made applicable to one locality, or for a particular case, is not repealed by implication by a statute general in its terms and otherwise state-wide in its application, unless the intention of the Legislature thereby to do away with the local or exceptional law is manifest, although the terms of the general act would, but for the special act, govern the particular condition or case provided for by the special act. Matter of Comm'rs of Central Park, 50 N. Y. 493; Lewis v. City of Syracuse, 13 App. Div. 587, 43 N. Y. Supp. 455; Buffalo Cemetery Ass'n v. City of Buffalo, 118 N. Y. 61, 22 N. E. 962.

Furthermore, the Geneva charter itself has been amended since 1897, and certain portions thereof, which provide for the appointment of the

poration, the appointment of the board of health by the mayor was provided for in three different sections. Section 17 provided that certain city officers shall be elected, and that "all other officers of the city shall be appointed by the mayor and shall be removable by him." Section 18, under the head of "Appointive Officers," provided that "the mayor shall appoint a city attorney * five commissioners of health," etc. Section 71 provided in detail for the organization of the board of health, the appointment of a health officer, etc.; that section also fixing the term of the members of the board at five years (except that at the outset only one should hold for five years, and the others for four, three, two, and one years, respectively).

* *

By chapter 296 of the Laws of 1901, and again by chapter 560 of the Laws of 1910, section 18 of the charter was amended and re-enacted without any change in the language that "the mayor shall appoint * * * five commissioners of health"; and by the same act of 1910, section 17 of the charter was amended with the provision continued, as above indicated, that the city officers therein named should be elected, and that all other officers of the city (which would include the health commissioners) should be appointed by the mayor. Between 1897 and 1910, section 20 of the Public Health Law had been re-enacted for the sake of minor amendments six times; but the Legislature evidently considered the city charter to be still effective in respect to the appointment of the members of the board of health, and there is nothing about the similar amendment of the Public Health Law in 1913 which changes the situation.

[4, 5] I am inclined to hold that the defendant Moore is entitled to be recognized as a member of the legal board. He was appointed in January, 1914, to succeed Commissioner Casey, whose term expired by lapse of time December 31, 1913. In a written communication to the common council signed by him, dated January 8, 1914, the mayor said:

"Pursuant to law and the authority vested in me thereby, I hereby nominate, subject to your approval, the following persons to serve in the official capacities designated for health commissioner or member of the

*

board of health, to succeed P. J. Casey, William S. Moore, Esq., of the city of Geneva, N. Y., for a term of three years from the 1st day of January, 1914, and whose term of office will expire on the 31st day of December, 1916."

This certificate of nomination was filed with the city clerk, who ex officio is the clerk of the common council, and the defendant Moore took and filed the regular oath of office as commissioner of health after his nomination by the mayor had been confirmed by the common council. Although the power of appointment of health commissioners is vested exclusively in the mayor, nevertheless the written nomination of the defendant Moore for that office to succeed Casey is a sufficient appointment under the law. The submission of the same by the mayor to the common council for its approval, being unnecessary, may be disregarded entirely. People ex rel. Kresser v. Fitzsimmons, 68 N. Y. 514. It is true the certificate of nomination or appointment, as we choose to call it, purports to limit Moore's term to three years. This limitation, however, was placed in the certificate upon what the court. now finds to be a misconception of the law as to the statutory term of

office. The attempted limitation of the term to three years is invalid, but the limitation does not make his appointment void; it will be held good for the full statutory term of five years. Stadler v. City of Detroit, 13 Mich. 346; People v. Dooley, 171 N. Y. 74, 63 N. E. 815.

Accordingly, I hold that the lawful board of health of the city of Geneva consists of the three relators and E. H. Eaton, whose term of office under his original appointment was to extend until December 31, 1916, and the defendant William S. Moore.

Findings may be prepared and judgment entered in accordance with these views.

(86 Misc. Rep. 170)

In re VILES.

(Surrogate's Court, Kings County. June, 1914.)

1. INSURANCE (§ 583*)-POLICY-CONSTRUCTION.

Where a life insurance policy was for a sum payable to insured's wife "if living, or his legal representatives," and his wife predeceased him and he was survived by a daughter as his only next of kin, the proceeds of the policy belong to the daughter personally.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1459, 1460, 1466, 1485; Dec. Dig. § 583.*]

2. INSURANCE (§ 583*)-POLICY-CONSTRUCTION-"LEGAL REPRESENTATIVE”– "NEXT OF KIN."

The term "legal representatives," when used in a life insurance policy to describe the beneficiary, is equivalent to the term "next of kin."

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1459, 1460, 1466, 1485; Dec. Dig. § 583.*

For other definitions, see Words and Phrases, vol. 5, pp. 4070-4079; rol. 8, p. 7704; vol. 5, pp. 4798-4804; vol. 8, p. 7732.] 3. EXECUTORS AND ADMINISTRATORS (§ 503*) — AccOUNTING

PENSES.

-

- FUNERAL EX

Where an administratrix reports payments made for reasonable funerai expenses pursuant to Code Civ. Proc. § 2729, subd. 3, and makes oath that such necessary charges are correct, her account must prevail so far as supported by vouchers, unless impaired by proof.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 88 2153-2156; Dec. Dig. § 503.*]

Proceeding upon the judicial settlement of the account of Jeanie Corwin Viles, formerly Jeanie S. Corwin, as administratrix of the goods, chattels, and credits of B. Ryder Corwin, deceased. Decreed according to opinion.

Woodford, Bovee & Butcher, of New York City, for accountant. Darwin J. Meserole, of Brooklyn, for objectant.

KETCHAM, S. [1] The policy of life insurance issued to the decedent for a sum payable upon his death to "his wife [named] if living or his legal representatives" was for the benefit of his next of kin in case of the wife's death before his own.

[2] The term "legal representatives," when used in contracts of life insurance to describe the assured, has been generally construed as equivalent to "the next of kin." Griswold v. Sawyer, 125 N. Y. 411, 26 N. E. 464.

This interpretation has been generally helped out by the proof of circumstances surrounding the transaction, which are not reproduced in the present case; but it has been influenced in large part by a form of policy which is found in the paper now under examination.

The insured was not a lawyer. He had a wife at the date of the transaction, who died before his death. Whether he then had a child. is unknown. His financial condition at the date of the policy is not shown, though the account indicates that the estate at death was insignificant. He is survived by a daughter, his only next of kin; but whether she was dependent upon him at any time or if living at the time when the policy was made was of large or small resources herself, does not appear. Though apparently she has been married, there is no evidence as to whether she was married before the date of the policy or as to the estate of her husband.

There are statements on many of these matters in the account, some of which, if true, would aid in the construction of the policy; but they are expressly withdrawn by the stipulation made by the parties, the sole source of evidence to be regarded in this matter.

Nevertheless, it will be found upon the face of the instrument and with the scant aid of the stipulation that the proceeds of the policy, $2,922.94, belong to the administratrix personally.

[3] The court is asked to determine the propriety of a funeral expense of $691.42. Upon the reasonableness of the items making the sum last mentioned there has been no attempt to introduce evidence beyond the figures of the account.

It is the duty of the administratrix to pay the reasonable funeral expenses. Code Civ. Pro. § 2729, subd. 3. Where in her account the administratrix reports payments made in this regard and upon oath alleges that the charges in such account for necessary expenses are correct, her account must prevail, so far as it is supported by vouchers, unless it is impaired by proof.

There is a deficiency of vouchers as to part of the credits for funeral outlays, but the objectant, who, except the accountant and her surety, is the only person concerned in the estate, has by his objections waived. this defect.

(Surrogate's Court, Bronx County. June, 1914.)

1. WILLS (§ 215*)-CONSTRUCTION-TIME FOR HEARING.

An application by special guardians, on the probate of a will, pursuant to Code Civ. Proc. § 2624, to determine the construction of a disposition therein, will be determined over an objection that a decision is unnecessary, because no distribution is then to be made.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 522, 523; Dec. Dig. § 215.*]

2. WILLS (8 680*)-CONSTRUCTION.

A will providing that testator's father should receive $400 if her husband failed to send him $10 monthly, and "if he doesn't send then *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

L. should draw out of the amount of $400 each and every month the amount of $10 * until the last dollars. In case if my husband sends him continuously then said amount should be divided between F. and H."-was a bequest of $400 to L., the executrix, in trust to hold during the life of testatrix's father, and to pay to him out of such amount and interest $10 per month whenever testatrix's husband should fail to make a monthly payment of $10 to him, until the $400 and accrued interest thereon should be paid, and on the further trust on her father's death to pay to F. and H., share and share alike, so much of the $400 and interest as should remain in executrix's hands after making such payments to the father.

[Ed. Note.--For other cases, see Wills, Cent. Dig. §§ 1594-1598; Dec. Dig. § 680.*]

Proceeding for the probate of the will of Rose Heller, deceased. On application to construe a provision of the will, under Code Civ. Proc. § 2624. Decree according to opinion.

Michael V. Rosenberg, of New York City, for proponent.

William A. Keating and Gustave Frey, both of New York City, special guardians.

SCHULZ, S. The testatrix left a last will and testament containing, among other provisions, the following:

"My father, Marcus Frey, should get the amount of $400 four hundred dollars in case if my husband wouldn't send him any money home, that he is suppose to send him $10 ten dollars monthly. And in case if he doesn't send then my sister, Lina Letzter, should draw out of the amount of $400, each and every month the amount of $10 ten dollars until the last dollars. In case if my husband sends him continuously then said amount should be divided between Fanny & Helen Heller."

[1] The two special guardians appointed for the infants interested have both submitted reports in which they state that they have no objection to the probate of the propounded document. They ask, however, that the surrogate, pursuant to section 2624 of the Code of Civil Procedure, determine the validity, construction, and effect of the disposition attempted in the said last will and testament by the language above quoted. While the attorney for the petitioner urges that a decision of the matter is now unnecessary because no distribution is as yet to be made, nevertheless I think it is of importance that questions of this kind should be decided as early as possible in the administration of estates, so that executors may know the views of the court concerning doubtful provisions. I can see no utility in avoiding the decision thereof and postponing it to a time when the executrix, through an honest misunderstanding, may have made payments which might cause her embarrassment. I therefore proceed to a consideration of this clause. [2] It seems clear to me that the testatrix intended that her father should receive the sum of $10 each month, and, as she does not state for what period he is to get this amount, I think the presumption is fair that she intended he should receive it during his lifetime. I think that it is equally clear that in no event was he to receive more than the sum of $400 and accrued interest thereon out of the estate of the decedent. Evidently there was some understanding between the testatrix and her