In Canfield v. Crandall, 4 Dem., 111, bequests were made to three several societies; one-half his property to one, and one-fourth to each of the others. A codicil executed within two months before the testator's death changed the proportion to one-third to each society. It was held by the learned surrogate of Allegany county that the codicil revoked the bequests in the will, and being executed within two months previous to the testator's death, was void as to two of the societies, incorporated under the act of 1848. The surrogate says (page 118): "If at the time the testator made the codicil to his will, he had made a new will, making no mention of a former will, but which contained precisely the same terms and conditions as are found in the will of 1871 as modified by the codicil of 1884, I think very few would contend that the provisions of the will of 1871 were not revoked by the latter instrument; that the latter instrument, producing the same result, is called a codicil, ought not to change its legal status." In this case there was no express revocation of the will; the codicil only changed the proportion in which the societies should share in the estate, but it was the last expression of the testator's will and made within the prohibited time.

The residuary bequest to the American Female Guardian Society is diminished by the last will by the additional individual legacies in the sum of $3,500. These additional bequests may or may not affect the others; depending whether the estate is sufficient to pay the legacies in full. The will of 1883 gives the entire estate to Mary P. Benedict, if living at the time of the testatrix' death, and makes her the executrix. The last will

omits her name entirely, and gives the estate to Henry T. Dunham in trust. There is no reason in saying that the testatrix supposed she was to leave two wills that were to be admitted to probate and construed together. She did not intend to give cumulative legacies. There would be no end to the complications and embarrassments that might arise in attempting to give effect to two independent instruments which were never intended to be construed together. A will may consist of several papers executed at different times, but they must be in harmony with each other. It is true, as argued by counsel, that "A last will and testament is not a piece of paper;" still the paper is the only medium of preserving and expressing the purpose of the testator; but it is not true that "any will" can be proved under § 2611 of the Code of Civil Procedure. It is only the last will that can be probated. 2 R. S., 2285, § 40. Swinburn says, "but no man can die with two testaments, and, therefore, the last and newest is of force; so that if there were a thousand testaments, the last of all is the best of all, and maketh void the former." Swinb. pt. 7, § 14, pl. 1. Of course the subsequent will must be executed with the requisite formalities, by a competent testator, and the revocation must not be grounded on a mistaken assumption of fact.

There was no mistake of law or fact on the part of the testatrix. It is a legal presumption that she knew she must live two months after its execution to render certain of the bequests valid. To this extent her capacity to give, as well as the capacity of the

legatees to take, was limited, but it was not such an infirmity of the instrument as would make applicable the authorities relied upon by counsel. The revocation was absolute and unconditional, and took effect immediately. She might have made it conditional upon dying within two months, but she did not, although knowing the effect of the revocation clause. The republication of a will by a codicil makes the will speak from the date of the codicil. Van Cortlandt v. Kip, 1 Hill, 590; 7 id., 346; Brown v. Clark, 77 N. Y., 369, 377.

My attention has not been called to any decision in this state adverse to the views herein expressed. The case of Price v. Maxwell, 28 Penn. St., 23, seems to be squarely in point. Thomas Smith, the testator, died within one calendar month after the execution of his will containing a bequest to the Friends Boarding School. A previous will was made which specifically gave all his real estate to such school. The later will gave all his property, real and personal, to the school, named other executors and revoked all former wills. Held, that the bequest was for religious and charitable uses and void under the act of assembly of 1855, and that an express clause of revocation of former wills is not affected or impaired by the failure of the devise contained in the latter will by reason of the testator's dying within the time required by the act to give the devise effect; that when the second devise fails, not by reason of defective execution of the will, but by the incapacity of the devisee to take, or by any other matter de hors the will, the first will is thereby revoked.

In Chamberlain v. Chamberlain, 43 N. Y., 424, the court (page 439) say: "Doubtless the restrictions upon corporations is a governmental regulation and one of policy, and to be enforced by the government; but an individual, whose interests will be affected by a transgression of the rule, may assert and insist upon the limitation as a restriction upon the power of the corpora

tion to take."

An express revocation will prevail, even though the object of the new will fails as against public policy. 5 Jones Eq. Rep., 46. My conclusions are that the several bequests to the American Home Missionary Society, to the Susquehanna Valley Home and to the American Female Guardian Society are invalid. Let the decree be entered accordingly.

In the Matter of the Estate of TERRY MORRIS, Deceased.

(Surrogate's Court, Cattaraugus County, Filed July 18, 1890.)

EXECUTORS AND ADMINISTRATORS

ACCOUNTING-JURISDICTION OF SURROGATE TO PASS UPON CLAIMS FOR ADVANCES FOR CARE OF LUNATIC.

The surrogate's court has ample authority on the settlement of the ac counts of an administratrix, the widow of the intestate, to consider and pass upon claims for moneys advanced by her for the maintenance of a child while in the insane asylum and the expenses incidental and preliminary to her confinement therein.

N. Y. STATE REP., VOL. XXXII.

19

JUDICIAL settlement of accounts of administratrix.

J. H. Waring, for administratrix; J. L. Woodworth, for B. Alta Morris.

SPRING, S.-The administratrix in this case is the mother of the contestant, who is a maiden lady about twenty-three years of

age.

The administratrix has embodied in her account a statement of sums alleged to have been paid by her in procuring a certificate from physicians attesting to the insanity of said contestant and for attorney's fees in the preparation of the papers preliminary to obtaining the order from the county judge directing her to be confined in the Buffalo Insane Asylum and for one-half of the expenses of maintaining and boarding her during her confinement

therein.

The contestant objects to these items and raises the question that the surrogate has no jurisdiction to pass upon them, and this is the only matter left to me to dispose of preliminarily.

Chapter 446 of the Laws of 1874 provides for the confinement of the insane in the Buffalo State Asylum, title 6 of said act, and makes an insane person liable for his maintenance therein. Title 3, § 30; Agricultural Ins. Co. v. Barnard, 96 N. Y., 525. And had the property of the lunatic been insufficient to maintain her, the mother would have been liable therefor. Title 1, article 1, $$ 12 and 13.

So that the charge itself, first, was a proper one to be imposed upon the property of the lunatic, and second, the mother was simply fulfilling the parental duties devolving upon her in providing for this maintenance. If a committee had been appointed to manage the property of this unfortunate person, it is self-evident the primary purpose to which her property would have been devoted would have been to care for and sustain her.

Instead, however, of going through the circumlocution of having a committee appointed, the mother, being the custodian of her daughter's property because she held in her possession the child's portion of her father's personal estate, paid these charges as they arose, obviously expecting to bring them in as a payment to the daughter on her distributive share on the judicial settlement of the account of the administratrix.

Equitably this made the daughter a debtor of her mother to the extent of these advances. 3 Pomeroy's Eq. Juris., 321, § 1300.

So far as abstract justice is concerned it matters little to the daughter whether this was paid by a committee or by the mother acting as trustee of the daughter in the capacity of administratrix of the father's estate.

That the surrogate, within the equitable powers of his court, has jurisdiction to allow credit for money expended by a parent who is administrator in maintaining his children, seems to be well settled by authority.

In Hyland v. Baxter, 98 N. Y., 610, the court of appeals, at page 616. say: "There seems to be no good reason arising out of the nature of the question, or the constitution of the tribunal,

which should deprive a surrogate, upon the settlement of the account of the administrator, where advances have been made for maintenance, to determine upon equitable principles a claim for an allowance. On the contrary, it would seem to be a very proper place and time to have the question determined, thereby saving expense and preventing further litigation. It is true that an administrator, in making advances, acts without authority and at his peril, but this is true in every case where a parent, or one in loco parentis, or a trustee or a guardian, makes advances not previously sanctioned by the court, and comes to the court for relief.

"The fact that the question is an equitable one and depends on equitable principles, is not a ground of objection to the jurisdiction." See also Haight v. Brisbin, 100 N. Y., 219; Browne v. Bedford, 4 Dem., 304.

Now, there is no substantial difference between the conduct of a mother in providing out of her husband's estate for the care, support and education of their children, and in her providing for the maintenance of a child afflicted with mental aberration, even, though an adult. The obligations of a parent in each case are the mainspring of her actions. She is trustee of each alike and charged alike with the duty of supporting them. In each case the fund is within the jurisdiction of the surrogate's court, and that court alone directs and determines its distribution, and it is within its incidental powers and within the equitable jurisdiction vested in it that it passes upon advances like these in controversy for the past maintenance of one so peculiarly dependent upon the mother for providing for her proper confinement. See also Code Civil Procedure, § 2472, subd. 3, § 2473, and 2481, subd. 11.

It seems to me clear, therefore, that the surrogate's court has ample authority to consider and pass upon these sums paid for the maintenance of the contestant while in the asylum, and the ex penses incidental and preliminary to her confinement therein.

HENRY THOESEN, Resp't, v. THOMAS D. CROWE, Appl't. (Supreme Court, General Term, First Department, Filed May 16, 1890.) BILL OF PARTICULARS.

In an action for the price of goods sold the answer alleged that divers articles had been returned to and accepted and retained by plaintiffs; that defendant never purchased or received divers articles mentioned in plaintiffs' bill of particulars and that defendant had paid more than the price of the goods alleged to have been delivered. Held, that defendant could not be required to serve a bill of particulars indicating what articles in plaintiff's bill of particulars he was willing to admit had been delivered to him, but could only be required to serve a bill stating the articles declined and returned.

APPEAL from an order directing the defendant to serve a bill of particulars.

Jacob L. Haines, for appl't; Howard Van Buren, for resp't.

DANIELS, J.--The action was brought to recover the price of goods sold and delivered by the firm of Thoesen & Uhl to the defendant. The plaintiff alleged himself to have acquired the in

terest of his copartner in the demand, and a bill of particulars of the goods forming it was served.

The defendant's answer stated that divers articles in the bill of particulars were returned to the firm, which they accepted and retained, and that the defendant never purchased or received from the firm divers articles of merchandise charged in their bill of particulars. And the order from which the appeal has been brought directed the defendant to serve a bill of particulars of the articles in this manner referred to in the answer and so far the order seems to have been entirely right.

It was further averred in the answer that the defendant had paid the firm more than the price of the goods alleged to have been delivered to him. Of these payments a bill of particulars had been served, and that fact is stated in the order, but the defendant was directed to serve a bill of particulars of the amounts and names of the articles which are stated in the defendant's answer to have been sold by the firm to him. This clause of the order was entirely unnecessary, and it had no substantial support from anything appearing on the hearing of the motion.

The defendant was not bound to make any statement to the plaintiff indicating what articles in the bill of particulars he was willing to admit the firm had delivered to him. Goddard v. Pardee Medicine Co., 52 Hun, 85; 22 N. Y. State Rep., 540. All that he could be required to do was to serve a bill of particulars of the articles declined and returned to the firm. This last direction contained in the order should be reversed and set aside, and the residue affirmed, without costs of the appeal to either party. VAN BRUNT, P. J., and BRADY, J., concur.

ROSETTA M. KEARNEY, Pl'ff, v. CHARLES E. FLEMING et al., Resp'ts, Impl'd with CHARLES JONES, Appl't.

(Supreme Court, General Term, First Department, Filed May 16, 1890.) TRUSTS.-ADVANCES PROCURED BY FRAUD.-PRIORITY.

One K. procured J. to advance money for the purchase of land under an agreement to take title in their joint names, and for their joint Benefit, but the deed was actually taken in the name of one P. Subsequently F. took a deed thereof from P.'s grantee pursuant to an arrangement with K. similar to that made with J. The deed was recorded, and F. paid off liens. Thereafter K. conveyed his interest to plaintiff. Held, that F. was protected by the recording act to the extent of advances made by him in good faith; that a trust was imposed upon the several grantees from P. to M. in favor of J., who was therefore entitled to be next paid his cash advances, after which the balance of the proceeds of sale should be divided between F. and J.

APPEAL from judgment rendered after a trial at special term by the court without a jury.

Action for partition of real estate. Plaintiff's husband, James Kearney, in 1884, induced defendant Jones to advance $442 for the purchase of certain incumbered real estate under an arrangement by which the title was to be taken in their joint names, the profits of the transaction to be shared equally. The deed, however, was taken in the name of one Parks, who conveyed to one Moore, who