sion, and no proof whatever is required on the subject. It is therefore clear that the court in Porter v. Wormser, supra, did not intend to establish any new rule of pleading, but simply applied existing rules to the peculiar circumstances of the case then under consideration. It follows that, as the contract sued upon was void by the statute, the plaintiff could not, in the face of the denial contained in the defendant's answer, recover, in the absence of an agreement in writing subscribed by the defendant. The contract being void, the defendant had the right to discharge the plaintiff at any time, without cause, upon paying him for the services actually performed; and this he did before suit brought. He can be required to do no more. The judgment appealed from must therefore be reversed, and a new trial granted, with costs to the appellant, to abide the event. All concur.

In re SMITH'S ESTATE, (two cases.)

(Surrogate's Court, New York County. September 20, 1889.)

TRUSTS-REMOVAL OF TRUSTEE.

Where a trustee fails to charge herself with rents received, and evinces such carelessness as proves her an unsafe guardian of others' property, and her testimony discloses an intention, persisted in until discovery, to conceal from the interested parties her reception of, and intention to appropriate, such rents, she will be removed as trustee, and it need not be found that she is dishonest or improvident.

Applications by Mrs. Drinker and others, and Hanford Smith and others, to remove the trustee of the estate of Hanford Smith, deceased.

Dilloway, Davenport & Leeds, for Mrs. Drinker and others., Dill, Chambers & Seymour, for Hanford Smith and others. Ovide Dupre, for trustee.

APPLICATION OF MRS. DRINKER AND OTHERS.

RANSOM, S. The evidence which is now before the court shows that the learned referee has found that the respondent collected before the death of the testator the sum of $1,063, and afterwards the further sum of $465, and that she failed to charge herself in her account with any part of these sums, and that she was charged with the same by a decree of this court, entered upon the report of a referee holding her liable for it. The learned referee herein, however, decides that her failure to charge herself with the moneys collected was not the result of dishonesty or bad faith, and concludes, as matter of law, that she was not guilty of any misconduct for which she could be removed. This conclusion of law seems to be deduced solely from the finding of fact as to the absence of dishonesty and bad faith in omitting to charge herself with the collections stated. It is apparent that the learned referee has not considered whether the acts or omissions in question, although done, or omitted to be done, in good faith, and with no dishonest purpose, might not involve such an improper application or administration of the funds of the trust, or such an improvident management thereof, or such other misconduct in the execution of the trust, as would justify the removal of the trustee. That the utmost good faith and honesty would not, in a multiplicity of instances readily suggested as coming within the cases mentioned, save a trustee from removal from his office, is manifest. The statute plainly recognizes this. Section 2817, subd. 2, Code Civil Proc; Estate of Stanton, 2 Ñ. Y. Supp. 342; Morgan v. Morgan, 3 Dem. Sur. 616.

I have very carefully examined and considered the evidence which has been adduced before the learned referee, and am unable to reach any other conclusion than that which follows. The testimony of the respondent given upon the previous reference, and which has been admitted in evidence, discloses, to my mind, an intention on her part, existing at and previously to the time of the filing of her account, and afterwards persisted in until discovery made

impossible its further continuance, to conceal from the parties interested the fact of her reception of the rents collected, and to convert the same to her use. This conduct I deem such dishonesty as would warrant her removal. Aside from this, and assuming that she had no knowledge of the amount of the rents she received in the month of May previously to her father's death, which I do not believe, she should at once, upon the death of her father, (which occurred on the 11th day of May,) or at least as soon thereafter as she had received her letters, have informed herself of their amount, and the disbursements made from them; as she knew, I am satisfied from the evidence, that any balance remaining constituted assets of the estate, for which she was accountable as executrix. Her testimony with regard to the rents received from Wolfe since the death of the testator, and her attempted explanation of her omission to charge herself with them, evidence such a degree of carelessness and inattention as prove her to be an unsafe guardian of the property of others. Her conduct with respect to the rents collected, before as well as after her father's death, is such as to satisfy me that she has not shown that fidelity which the law exacts from a person in her position; but, on the contrary, she has so improvidently and faithlessly managed the property committed to her charge as to render her an unfit person for the due execution of her trust. Section 2817, subd. 3, Code Civil Proc., and cases above cited. It is hardly necessary to add that the fact that the trustee satisfied the decree which charged her with the rents in question-a decree which could have been enforced by proceedings for contempt-does not relieve her from liability to removal. In re Wiggins, 29 Hun, 271. I have thus reached a conclusion opposed to that arrived at by the learned referee, and am therefore constrained to overrule his report, and decide that the respondent should be removed from her office as trustee.

APPLICATION OF HANFORD SMITH AND OTHERS.

RANSOM, S. The evidence warrants the findings contained in the report of the referee, and also the disposition which he made of the requests to find of the petitioner Hanford Smith. The provisions of the Code, as well as the cases cited below, show that it is not necessary to find that the respondent was dishonest, although it is not entirely beyond doubt that she was not. Nor is it necessary to find that she was improvident, in the general sense of that term, to justify her removal; but the grounds specified in the referee's report are sufficient, and compel the court to decree her removal. Code Civil Proc. § 2817, subd. 2; Estate of Stanton, 2 N. Y. Supp. 342; Morgan v. Morgan, 3 Dem. Sur. 616. The case of Emerson v. Bowers, 14 N. Y. 449, referred to by the respondent's attorney upon the argument, has no application, as the facts relied upon for the removal of the trustee in the present proceeding were not then grounds for removal, and, of course, were not considered. The Code of Civil Procedure has since made them such grounds. See section of Code above cited.

In re HILL'S ESTATE.

(Surrogate's Court, New York County. June 12, 1889.) EXECUTORS AND ADMINISTRATORS-ACCOUNTING-FAILURE TO DEFEND ACTION. Where a claim of an administrator against his decedent's estate is assigned, and referred as a disputed claim, and the administrator fails to make the apparent defense of the statute of limitations, and all the testimony in support of the claim is incompetent, though not objected to by the administrator, the judgment allowing such claim will be set aside upon exceptions to the referee's report on a settlement of the administrator's accounts, and all claims for costs and expenses in connection therewith will be disallowed.

Motion to confirm report of referee.

Hastings & Southworth, for administrators. George Wilcox, for contest

ant.

RANSOM, S. Motion to confirm report of referee, and to overrule exceptions filed thereto, on the judicial settlement of the accounts of the administrators. The exceptions relate to three items allowed by the referee: (1) Two hundred and fifty dollars paid for legal services; (2) $120.75 paid for costs and disbursements in a suit against the administrators; (3) claim originally owned by one of the administrators, but subsequently assigned to his daughter. For 30 years prior to her decease, the decedent lived with the administrators, who are husband and wife; the latter being the sister of the deceased. Subsequent to her decease one of the administrators (the husband) presented a claim to himself and his wife, as administrators, and subsequently assigned the same to his daughter. The matter was referred as a disputed claim, under the statute, and the judgment rendered in favor of the plaintiff. This judgment exceeds in a considerable sum the entire value of the estate. The contestant claims that it was obtained collusively, and is void, and that the claim, being that of the administrator, could not be referred, but must be proved before the surrogate on the accounting. The only testimony taken before the referee was that of the plaintiff, and her father and mother, the administrators. It appears from the testimony given by the assignee of this claim, the daughter of the administrator, that she was unaware of the fact of assignment, paid no consideration therefor, and knew nothing whatever with reference thereto. It is clear, therefore, that the assignment was merely colorable.

The apparent defense of the statute of limitations was not interposed to the claim, or any part thereof, and all the material testimony that would in any way be relied upon to sustain the claim was susceptible to objection under section 829, Code Civil Proc. Had the former defense been interposed, I am of opinion that certainly the greater part of the claim would have been rejected; and, if the testimony is considered as though the latter objection had been insisted upon, the court would find nothing upon which to base a judgment in favor of the claimant. Reading the testimony taken upon the reference of the claim, and comparing the same with that taken on the accounting herein, I am forced to conclude that the judgment was obtained in such a manner that its authority will not be recognized in this proceeding. "It has become an established rule, settled in the administration of justice, that, where a judgment has been fraudulently obtained, it may either be set aside by an action brought for that object, or the judgment itself may be defeated by a defense to any legal proceeding taken upon its authority." Richardson v. Trimble, 38 Hun, 410, and cases cited. It is not necessary to bring an action to avoid the record. Mandeville v. Reynolds, 68 N. Y. 528. See, also, Ward v. Town of Southfield, 102 N. Y. 287, 6 N. E. Rep. 660. In Richardson v. Trimble, supra, the term "fraud" is defined by Justice DANIELS, writing the opinion of the general term, as follows: "Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another.' 1 Story, Eq. Jur. (5th Ed.) § 187."

The facts I have briefly recited are established by the evidence, and constitute a valid defense to so much of this proceeding as is based upon the authority of the judgment. The failure of the administrators to interpose the available legal defenses was such a neglect of duty as to charge them with the damage occasioned to the estate by such failure. An executor or administrator is bound to set up the bar of the statute of limitations, and will not be allowed in his accounting any sum paid upon a debt which at the time of its payment by him was barred by the statute. Butler v. Johnson, 111 N.

Y. 204, 18 N. E. Rep. 643. The other items which are the subject of exception were for legal services and costs in connection with the reference of the alleged disputed claim of the administrator. I think they should stand or fall with the determination of the main exception. Exceptions to the referee's report sustained.

In re FREY'S WILL.

(Surrogate's Court, New York County. September 6, 1889.)

1. WILLS-PROBATE-EVIDENCE.

Where a will is on its face properly executed and attested, and one of the subscribing witnesses, whose memory of other circumstances connected therewith is defective, states that she was not asked to sign the will, and the other subscribing witness, who also drew the will, and a third person who was present at its execution, testify positively to the contrary, and there is nothing to show fraud, the will should be admitted to probate.

2. SAME-VALIDITY-REFERENCE TO LETTER.

Where a testator bequeaths one-fourth of his residuary estate to his executor for purposes to be made known by a letter written by the testator, said letter to form a part of the will, and the letter cannot be found, the will is valid except as to the one-fourth, as to which testator is intestate.

Application for the probate of the will of Joseph B. Frey, deceased.
George W. Carr, for proponent. Edward B. Crowell, for contestant.

RANSOM, S. The instrument, though without date, appears by the testimony to have been executed on the 17th day of April, 1882, the date of a letter referred to in the body of the paper. The subscribing witnesses were Charles N. Hilliard, the attorney who drew the will and superintended its execution, and Mrs. Clemence Dodge. During the seven years that succeed the event, the memory of Mrs. Dodge as to the occurrence had become nearly obliterated, unless her testimony was given in a disingenuous spirit, which, from a careful reading of it, seems not improbable. When the attention of Mr. Hilliard was first called to the subject after the testator's decease, he said that his recollection was vague as to the circumstances attending the transaction, but, on reflection, he was able to recall the facts. If his testimony is to be credited, the requirements of the statute were substantially complied with. His statements in that regard are corroborated by the proponent, Mr. Clirehugh, whose wife was a sister of the decedent, and is a legatee named in the will. The decedent's widow, by her attorney, contested the probate of the paper, alleging that it was not the decedent's free and unconstrained act, and that it was not executed in conformity to the statute. Mr. Hilliard states that, two days before the paper was executed, Mr. Clirehugh gave him some headings of the proposed will, of which he took memoranda. On the day on which it was drawn, he proceeded to an apartment in the residence of the decedent, whom he had never until then seen, and the provisions of the instrument were discussed by the decedent and Clirehugh, and he then drew the will. After its completion, Mrs. Dodge, who was in the apartment of Mrs. Frey, and who was to remain with her during the night because the decedent was to leave for Washington, was asked by him to come into the room where the instrument had been prepared, he stating that she was wanted to witness a paper for the disposition of his patents, and that he did not say that it was his will. In this statement she is confirmed by the testimony of the contestant. She, however, did not accompany Mrs. Dodge into the other room. When there, Mrs. Dodge states that no one asked her to sign her name as a witness to a will. Her memory is singularly perverse in respect to nearly all the circumstances attending the execution, and the greater part of her testimony is a succession of answers, “I cannot remember," to the questions propounded in respect to the successive acts to constitute the valid execution of the will. Mr. Hilliard, in 1882, had been admitted to the bar for three years,

and he states that during that period he had drawn six wills. He further testifies that on this occasion, before proceeding to the decedent's residence to draw the paper, he took the precaution to look at the statute in respect to its requirements. At the foot of the instrument is an attestation clause in his handwriting; and both Hilliard and Clivehugh say it was read at the time of the execution in the presence of both witnesses.

It is incredible that a lawyer of any experience in superintending the execution of wills, unless he was a party to à fraud, should have written the recitals contained in the clause, and then signed them, if the events therein stated had not taken place; and as he testifies that his feelings are not cordial towards the proponent, Clirehugh, because he had refused to pay him for his services in connection with the matter, I certainly see no reason to believe that he would vary his statements from the truth. Nor does the fact that Clirehugh and Hilliard do not agree in respect to some of the important details of an interview cause me to doubt that the will was properly executed. Under a well-settled principle of law, if, by reason of the lapse of time, witnesses are not able to recall the circumstances connected with the execution of a testamentary instrument to which they have affixed their signatures, the existence of an attestation clause reciting the facts requisite for a due execution, and to which the witnesses have affixed their signatures, comes in aid of probate; and in this case, as its statements are re-enforced by the positive recollections of Mr. Hilliard and Mr. Clirehugh, I am satisfied that the will was properly executed.

The contestant calls in question the construction and legal effect of the disposition of the personal estate of the decedent upon a further ground. By the will the decedent bequeaths to his wife one-third of the profits accruing from certain royalties on patents, and one-third of the proceeds of the sale and manufacture of a certain other patent to be issued to him, and gives the residue of his estate to be divided into four equal parts,-one to his mother; another to his sister Mrs. Clirehugh; another to his brother August William; and the fourth part "unto my executor, to be devoted by him to and for a certain purpose made known unto said executor by a certain letter written by me to my said executor, and bearing date April 17, 1882; the said letter to form a part of this, my will." No such letter was found after the decedent's death. Mr. Hilliard states that he was informed by the decedent and by Clirehugh, at the time of drafting the will, that the letter was then in existence. In this respect, the recollection of Mr. Clirehugh is different. If it had been written at the time, and was properly identified, its directions would be followed as a part of the instrument; but as it was not found, and I hoid that the paper propounded was properly proven as the decedent's will, the non-production of the letter cannot invalidate the provisions for the disposition of three of the four parts of the residuary estate, and that the fourth part must go to the parties in interest, under the statute of distributions.

In re KEECH'S ESTATE.

(Surrogate's Court, New York County. June 20, 1889.)

LEGACY TAX-EXEMPTIONS-ALMSHOUse.

A charitable institution which requires, as a condition of entrance thereto, the payment of an admission fee, and the making of a will by the applicant in its favor, is not an almshouse, within the definition of a "pure charity," so as to exempt a bequest to it from the legacy tax.

Motion to confirm the report of the appraiser of the estate of Charlotte G. S. Keech, deceased.

R. E. Selmes, for comptroller. D. S. Olmstead, for executors. Dixon, Williams & Ashley, for Baptist Home Society.