Misc.] Surrogate's Court, New York County, April, 1911. unfortunate children for, whose very existence he had a tremendous responsibility, they might now be a county charge. It would seem that the will in question accords with the natural obligations of this particular testator, and that it was such a reparation as a man in his serious situation, on the eve of dissolution, would surely make to those he had assumed to provide for in life. In the will itself I detect nothing unnatural or "irrational on its face." To the contestants' argument that this will overlooks those whom the law made the testator's heirs and next of kin, and gives his patrimony to his unfortunate consort and their unfortunate children, little attention is, I think, due in this particular cause. Charles Klinzner's situation was exceptional. His life was abnormal, and passed far from those the law made his heirs and legal kindred. His will is in precise accordance with the tenor of the testator's entire life. The law does not permit me to set aside the will of the erring as a punishment for their moral errors. A surrogate has no such extended jurisdiction. In view of the facts established in this proceeding, I feel constrained to pronounce for the will. My sentence, therefore, is that the paper writing propounded as the will of Charles Klinzner, deceased, is entitled to probate as the will of real and personal property of Charles Klinzner, deceased. Let such a decision and decree be submitted to me for my signature. The proponents and the guardians of the infants are entitled to costs out of the estate. I impose no further costs in this proceeding. Decreed accordingly. Surrogate's Court, Kings County, April, 1911. [Vol. 71. In the Matter of the Application of SARAH E. STEWART and MARY STEWART TALLCOTT (Formerly MARY E. STEWART), as Administratrices of the Estate of HORATIO S. STEWART, Deceased, for the Disposition of the Real Property of Said Decedent for the Payment of his Debts. (Surrogate's Court, Kings County, April, 1911.) Executors and administrators - Subjectton of realty to payment of debts and liabilities of estate - Matters and proceedings after order, sale and conveyance - Confirmation - Not required. con There is no warrant for confirmation of a sale of decedent's lands for the payment of his debts, notwithstanding the word firmation" was inadvertently left in section 2774 of the Code of Civil Procedure, when former section 2776 of said Code, which required an order confirming the sale, was repealed in 1904. MOTION to confirm a sale of decedent's land for payment of debts. McKeen, Brewster & Morgan, for motion. KETCHAM, S. There is no warrant for confirmation of a sale of decedent's lands for the payment of his debts. Former section 2776 of the Code of Civil Procedure, which required an order confirming the sale, was repealed, in 1904, by the act which reformed the practice relative to the sale of decedent's lands. Laws of.1904, chap. 750. It is not possible that a procedure thus deliberately excluded was impliedly preserved by the incidental reference which was unfortunately left in section 2774 of the Code. That section, in like manner, retained the provision that “a freeholder appointed to execute the decree" should not purchase at the sale, although the statute of 1904 left out the express direction, formerly contained in the Code, that a freeholder should be appointed. As well might it be argued that the present statute, by implication and accident, requires or permits the appointment of a freeholder to conduct the sale as that confirmation is required because the word "confirmation" escaped the process of revision. Motion denied. Misc.] Surrogate's Court, St. Lawrence County, April, 1911. In the Matter of the Judicial Settlement of the Account of ALVA J. RUNIONS, as Administrator of the Estate of GEORGE B. HARPER, Deceased. In re Claim of FRED H. LADD. (Surrogate's Court, St. Lawrence County, April, 1911.) Evidence - Documentary evidence-Books of account- - Verification of Where, upon the hearing of a rejected claim for services rendered and medicines furnished to the decedent by the claimant as a physician, the correctness of the physician's book of accounts was proved by the testimony of third persons who had settled with him from the book during the period covered by the claim in question, the book itself is competent evidence though the entries therein were made by the claimant. Where the claim was entirely rejected by the administrator who offered no evidence to show that the claim was not in every respect correct and reasonable, the claimant should be granted an allowance of costs in addition to his disbursements. HEARING of a claim for physician's services, upon the judicial settlement of an administrator's accounts. Clarence S. Ferris, for claimant. George A. Adams, for administrator. HERRIMAN, S. This claim was presented to the administrator and entirely rejected by him, and now comes before me under the stipulation of the parties, as provided in section 1822 of the Code of Civil Procedure. The claim is for services rendered and medicines furnished to the decedent by the claimant as a physician, and amounts to $243.50. The rendering of the services was abundantly proved by the claimant's book of accounts, if such book was properly received in evidence. This book Surrogate's Court, St. Lawrence County, April, 1911. [Vol. 71. was produced by the claimant and identified by him as his book of accounts. He testified that he made the entries in it, and that he so made them at the time the transactions referred to occurred, and that he kept no clerk. He then proved by others that some of the services charged for were rendered, that some of the medicines charged for were delivered, that the amounts charged were reasonable, and that he kept correct books, the latter fact being shown by the testimony of several persons who had settled with him from the book during the period covered by the account in question, that their accounts upon the books were shown to them, and that they found them correct. The main objection now urged by counsel for the administrator is that the book was incompetent as evidence against the estate of the decedent, by reason of the provisions of section 829 of the Code of Civil Procedure; and he cites Davis v. Seaman, 64 Hun, 572, in support of his contention. In that case the only evidence. that the claimant kept correct books was his own testimony, given under objection and exception. In short, the plaintiff merely produced his own record of his dealings with the decedent and then swore that the record was correct. In the case at bar, the correctness of the claimant's book of account was proved by the testimony of third persons. The book itself is not then incompetent evidence merely by reason of the fact that the entries in it were made by the claimant himself. Any other rule would render it impossible in the majority of cases to establish a claim against an estate, where the claim consists of many items of goods sold and services rendered. No good reason is shown for the entire rejection of this claim by the administrator; and, while each step in the proof of the claim was resisted by him, no evidence whatever was offered to show that the bill was not in every respect correct and reasonable. Under these circumstances, I think that an allowance should be made to the claimant of twentyfive dollars costs, in addition to his disbursements. A decree may be drawn in accordance with the foregoing. Decreed accordingly. INDEX. ABATEMENT AND REVIVAL. Death of party-What causes of action survive Causes of action ABUTTING OWNERS. Rights and liabilities in general -- Extent of abutting owners' rights ACCUMULATION. What is an Effect of invalidity. Penniman v. Howard, 598. ACTIONS. The 1. Cause of· Liability of employer for payment to creditor of em- 2. Cause of Liability of employer for payment to creditor of em |