a revocation thereof within the year is sufficient to institute a contest; it is not necessary that the citations should be issued and served within the year. Reversing S. C., 16 W. Dig., 265.

G. died in the City of New York April 20, 1877, leaving a will which was admitted to probate February 16, 1878. On February 15, 1879, the present appellant, the next of kin of G., filed with the Surrogate allegations in writing against the validity of the will and the competency of the proof thereof, for the purpose of procuring the revocation of its probate. The petition containing these allegations closed with a prayer that a citation might issue directed to the executrix, requiring her to appear before the Surrogate at a time and place to be therein specified and show cause why the probate of the will should not be revoked. No citation was issued until May 19, 1880, when one was issued and served on the executrix. On the return thereof the executrix moved to dismiss the proceedings and confirm the original probate, on the grounds that as between her and the appellant the matter was res adjudicata, and that the time within which the proceedings could be taken under the statute had expired, the mere filing of the allegations within the year, without notice to the executrix, not being a sufficient compliance with the statute. 2 R. S., 61, $$29-35.

W. M. Muller, for applt.

W. C. Waring, for respt. Held, That although the allegations filed for the revocation of the probate were substantially those

the Surrogate could not, on that account, refuse to hear them; that the proceedings were instituted within the required time; it was not necessary that the citation should be issued and served within the year. The contest was instituted by the filing of the allegations. It then became the duty of the Surrogate to issue the citations and appoint a time for the hearing. If the contestant failed to apply for or take out citations, the executor can apply for and take them out. No harm can come from the omission on the part of the contestant to proceed further after he has filed his allegations. The provisions of the Code of Civil Procedure, §§ 2626, 2627, 2648, 2649, 2650, being substantial re-enactments of the provisions of the Revised Statutes, may be regarded as a legislative recognition of the preexisting law, and they make entirely clear that the filing of the allegations within the year praying for the citations was sufficient.

Order of General Term, affirming order dismissing allegations, reversed, and case remitted to Surrogate.

Opinion by Earl, J. All con

provide, either expressly or by fair intend

ment, for the separation of the two functions and duties, one to precede the other and

to be performed before the other is begun, and must not provide for the coexistence of the two duties continuously and from the beginning, and besides, the duty of trustee must be actually entered upon and its per

formance begun, either by the real severance of the trust fund from the general assets or a judicial decree which wholly discharges the executor and leaves him acting only as trustee.

Testator's will directed his executors to carry on his business during the life of his wife and daughter, pay them certain sums for support and upon their death to close the business and divide the estate among his children. On the first accounting the executors were directed to hold the balance of the fund as trustees and were discharged as executors. The daughter is still living. Held, That the attempted change of the exe

cutors to trustees by the decree was not war

ranted by the will and the discharge of the executors thereby amounted only to a partial settlement of their accounts.

This action was brought to recover the statutory commissions claimed to be due J., plaintiff's testator, as one of the trustees of the will of G. J. had been allowed and paid commissions on the corpus of the estate as executor, and had been fully paid his commissions on the income of the estate. The will of G. directs 1st. the payment of the testator's debts, 2d. that the executors or such of them as should qualify," their survivors or successors," shall carry on with the testator's "estate and property" his present business during the life of his wife and his daughter F., and that the profits beyond the sums set apart for their support should be added to the "working capital" of his estate. After fixing the annual sums to be paid

out of the income the testator directed that upon the death of his wife and daughter the business should be closed and the estate divided among his children. The executors were given a power of sale and made guardians of the testator's children during their minority. The wife of the testator is dead.

Homer A. Nelson, for applts. N. Pendleton Schenck, for respt. Held, That as the will shows that the trust duties and those of the executors coexisted from the issue of letters testamentary down to the present action, and that no separation of such duties at any point of time was contemplated, except in an emergency which has not yet arisen, this action cannot be maintained. To entitle the same persons to commissions as executors and as trustees, the will must provide, either by express terms or by fair intendment, for the separation of the two functions and duties, one duty to precede the other and to be performed before the latter is begun, or substantially so performed; and must not provide for the coexistence, continuously and from the beginning, of the two functions and duties; and where the will does so provide for the separate and successive duties. that of trustee must be actually entered upon and its performance begun, either by a real severance of the trust fund from the general assets, or a judicial decree which wholly discharges the executor and leaves him acting and liable only as trustee. 88 N. Y., 121; 2 Barb. Ch.,

On the first accounting of the executors before the surrogate a balance of assets was ascertained by estimating in gross the business value of the firm. No settlement of that business conducted by the executors was in any manner had. The executor's account was

brought down only to the first of January preceding, and to meet obligations of the estate they were told to retain $50,000 and hold the balance as trustees. The decree closed with an order discharging the executors "except as hereinbefore stated and directed." The executors soon after filed what they termed a supplemental account, in which they showed that as executors they had paid out for debts $183,000 in excess of the $50,000 retained, and the surrogate ordered the trustees to pay to the executors the $183,000, and all the expenses and allowances of the accounting.

Held, That the attempted change by the decree on the first accounting of the executors to trustees was purely constructive and not warranted by the will, and the discharge of the executors by such decree amounted to nothing more than a settlement of a part of their accounts. No question before the surrogate on either accounting and no official duty of his gave him authority to construe the effect of the will upon the future attitude of the executors.

Judgment of General Term, affirming judgment for plaintiff,

plaint.

Opinion by Finch, J. All con

cur.

CONSTITUTIONAL LAW. MANDAMUS.

N. Y. COURT OF APPEALS.

The People ex rel. Smith, respt., v. Schiellein et al., applts.

Decided Feb. 26, 1884.

Chap. 564, Laws of 1881, so far as it provides for the election of justices of the peace at a general election and forbids their election at a town meeting and so far as it purports to repeal existing statutes regulating the time and manner of holding such elections at town meetings are unconstitutional and void.

Where the justices as a board of canvassers neglect to canvass on the day appointed ballots cast for justice at town meeting the party for whom such ballots were cast is entitled to a mandamus requiring them to

perform such duty.

The writ is properly directed to any one found in possession of the office and assuming to perform the duties thereof; his title to the office is not triable in the proceeding.

This was an application for a mandamus to compel the town canvassers of the town of New Lots to count the ballots cast for justices of the peace at the annual town meeting held April 3, 1883. The board consists of the justices of the peace of the town, one of whom claims to be a justice by virtue of being elected at the general election in the fall of 1882. In 1826 the constitution was amended so that the people were thereby authorized to elect justices of the peace by ballot "at their annual elections." In 1846 this provision

cial duty by an officer which is still possible of execution, in a case where it has been wholly omitted by the officer charged with its performance, may be awarded a mandamus against such officer. 46 N. Y., 10; 12 Barb., 217; 8 N. Y., 318.

People v. Comr. of Excise, 7 Abb. Pr., 34; People v. Suprs. of Greene, 12 Barb., 217, distinguished.

It was claimed that W., one of the defendants, was improperly joined with the others because he held his office under the general election held in 1882.

Held, Untenable; that the title of W.'s office is not triable in this proceeding; as W. is found in possession of his office assuming to perform its duties the writ was properly directed to him with the others.

Order of General Term, affirming order allowing mandamus, affirmed.

Opinion by Ruger, Ch. J. All

concur.

MUNICIPAL CORPORATIONS.

NEGLIGENCE.

N. Y. COURT OF APPEALS. Cain, admr, applt., v. The City of Syracuse, respt.

Decided Feb. 26, 1884.

The failure of a municipal corporation to act does not prove negligence in a case where not acting is consistent with knowledge and ordinary prudence.

Plaintiff's intestate was killed by the fall of a wall adjoining private premises in which he was temporarily. No complaint had been made to the city that the wall was Vol. 18.-No. 22b.

dangerous and it appeared that on examination a prudent man might have deemed it safe. No resolution ordering its removal was passed by the Common Council although it had power to do so. Held, That while under the circumstances the omission to act might indicate an error of judgment it did not show a negligent omission; that whether a resolution should be passed rested in the discretion of the council and that the corporation was not liable. Affirming S.C., 16 W. Dig., 242.

This action was brought to recover damages for the death of plaintiff's intestate, which was caused by the falling of a wall that had been left standing, with the knowledge of defendant's officials, in a dangerous condition. Defendant's charter authorizes the common council "to establish, publish, modify, ordain, amend or repeal ordinances, rules, regulations and by-laws for many purposes, among which is "to rase or demolish any buildings or erections which, by reason of fire or any other cause, may become dangerous to human life or health, or may tend to extend a conflagration.' It also provides (5) that "the common council shall have power by resolution," among other things, "to compel the owners or occupants of any wall or building within the city which may be in an unsafe or ruinous condition to render the same safe, or to take down or remove the same and to prohibit such erections, and also "to require the summary removal or abatement of all nuisances, or substances likely to become such from any street, lot or building." Punishment for disobedience by an owner of this provision is a fine. of $100 or imprisonment not ex