In insurance. were transmitted to Gov. Dongan, directing to ascertain the condition, quantity, or value. him to add to the jurisdiction of the Gover- Fulton v. Town of Dover, 6 Atl. 633, 638, 6 nor, as judge of the prerogative court, the Del. Ch. 1. ecclesiastical jurisdiction of the Archbishop of Canterbury; and three years later there was also added the ecclesiastical jurisdiction In considering a condition of an insurof the Bishop of London, so far as it related ance policy, which made the application, to testamentary matters or the administra- plan, and survey or description of the proption of the estates of intestates. Subsequently, when the colony became more extensively settled, the Governor appointed deputies, to whom were delegated the power to act for him in such cases, and these deputies subsequently became known by the title of surrogates. Malone v. Sts. Peter & Paul's Church of Brooklyn, 64 N. E. 961, 963, 172 N. Y. 269. The word "surrogate" where it is used in the text, or in a bond or undertaking given pursuant to any of the provisions of the chapter relating to surrogates' courts, includes every officer or court vested by law with the functions of surrogate. Code Civ. Proc. N. Y. 1899, § 2514, subd. 7. SURROGATE'S COURT. Distinct tribunals for the establishment of wills and administration of the assets of men dying with or without wills are variously called "prerogative courts," "probate courts," "surrogate courts," and "orphans' courts." Robinson v. Fair, 9 Sup. Ct. 30, 35, 128 U. S. 53, 32 L. Ed. 415. A surrogate's court is a creation of the statute, of inferior and limited jurisdiction. Those claiming under the decree of a surrogate must show affirmatively his authority to make it and the facts which give him jurisdiction. In respect to accountings by testamentary trustees or guardians, a surrogate takes no incidental powers or constructtive authority by implication which is not expressly given by statute. In re Hawley, 10 N. E. 352, 357, 104 N. Y. 250. A surrogate's court is to carry out and give effect to the provisions of a will, and not to defeat it. In re Cornell's Will, 41 N. Y. Supp. 255, 258, 17 Misc. Rep. 468 (citing Hartnett v. Wandell, 60 N. Y. 346, 19 Am. Rep. 194). SURVEY. See "Chamber Survey"; "Including Survey"; "Inclusive Survey"; "Notorious Survey"; "Regular Survey." erty a part of the contract and a warranty Same-Marine insurance. "A survey,' as the term is used in ma rine insurance," says Mr. Justice Story, "is both underwriters and owners as affording a common public document, looked to by the means of ascertaining upon the very spot, at the very time, the state and condition of the ship and other property at hazard." In the case of The Henry (U. S.) 11 Fed. Cas. 1153, Judge Betts examines the office and nature of a survey. The wise precaution of the maritime law has pointed to one item of proof, which, if not necessary, "To survey" has several signincations. will nevertheless be demanded, unless its It may mean to inspect, or take a view of; absence be satisfactorily accounted for; that to view with attention; to view with a is, a precedent examination of the vessel by scrutinizing eye; to examine with reference competent surveyors, and their report statto condition, situation, and value; to meas- ing her condition and advising a sale. A ure as land; and many others. "Survey" survey by competent surveyors, containing as a noun may mean an attentive or par- a statement of the injury and a strong recticular view or examination, with the design ommendation to sell, will be an important element in the proofs in determining the character of the emergency, and especially the good faith of the master. Hathaway v. Sun Mut. Ins. Co., 21 N. Y. Super. Ct. (8 Bosw.) 33, 68. The word "survey," as used in a marine insurance policy, means a common public document, looked to, both by underwriters and owners, as affording the means of ascertaining upon the very spot, at the very time, the state and condition of the ship and other property at hazard. In some policies, as, for example, when what is technically called the "rotten clause" is inserted, such a document seems indispensable, as the survey may amount to a discharge of the underwriters. Potter v. Ocean Ins. Co. (U. S.) 19 Fed. Cas. 1173, 1178. "Survey," as used in the law of marine insurance, in its strict signification, as well as in the broader meaning which it may be supposed to have as applied to the subjectmatter, can be taken to import only a plan and description of the present existing state, condition, and mode of use of the property. Denny v. Conway Stock & Mutual Fire Ins. Co., 79 Mass. (13 Gray) 492, 497. Of land. A "survey of lands," under the Spanish government, as with us, meant and consisted in the actual measurement of land, ascertaining the contents by running lines and angles with compass and chain, establishing corners and boundaries, and designating the same by marking trees, fixing monuments, or referring to existing objects of notoriety on the ground, giving bearings and distances, and making descriptive field notes and plots of the work. Winter v. United States (U. S.) 30 Fed. Cas. 350 (citing Ellicott v. Pearl, 35 U. S. [10 Pet.] 441, 9 L. Ed. 475; United States v. Hanson, 41 U. S. [16 Pet.] 198, 10 L. Ed. 935). The word "survey," as used in a statute relating to the fixing of boundary lines between counties, providing that the state engineer shall run out and establish such lines as nearly as may be in accordance with defective description, in company with the county surveyors, but provided that, if the county surveyors shall not appear and assist in making such survey after due notice, it shall not affect or invalidate such survey, does not of necessity mean an actual survey. Hinsdale County v. Mineral County, 48 Pac. 675, 678, 9 Colo. App. 368. A survey in which all the corners are marked, and all the lines run and marked, except the closing line between the first and last corner stones, is a legal survey under the Utah statutes; and, if three sides of a quadrilateral survey are run, the fact that the street line connecting the extremity of the two side lines is not run does not ren der the survey insufficient. Alford v. Dewin, 1 Nev. 207, 214. A survey under a proprietary title is not a conveyance. It is an instrument sui generis in the nature of a partition; a customary mode in which a proprietor has set off to himself in severalty a part of the common estate. Jennings v. Burnham, 56 N. J. Law, 289, 291, 28 Atl. 1048. Same-As grant or location. "Survey," as used in a description in a trust deed conveying "the B. survey, lying in what is known as the I. pasture, in C. and A. counties," is synonymous with the word "land," or "grant," or "location." Clark v. Gregory (Tex.) 26 S. W. 244. Same-As map or plat. In a contract for the conveyance of land according to a certain survey, the words "survey" applies as well to the map or plat, showing the result of the actual examination of the ground, as to the examination itself. Hahn v. Cotton, 37 S. W. 919, 920, 136 Mo. 216. Same-Underground survey. "Survey" means to inspect or examine with reference to situation, condition, or value; to determine the boundaries, extent, position, etc. So that, as used in Code Civ. Proc. § 1682, providing that in actions relating to real estate the court may grant leave to enter on property to make a survey, does not limit the survey to the surface, but may allow an underground survey, where the defendant has tunneled from his land in the plaintiff's land in removing materials. Howe's Cave Line & Cement Co. v. Howe's Cave Ass'n, 34 N. Y. Supp. 848, 851, 88 Hun, 554. Of logs. Gen. St. 2406, providing that no surcourt in this state, except the survey of vey of any logs shall be received in any the surveyor general or his deputy, “survey" means the act of counting and measuring the logs, and ascertaining how many feet they contain, and does not mean the scale bill, or the record thereof, or any other written document or record. Antill v. Potter, 71 N. W. 935, 936, 69 Minn. 192. Of railroad. "Map and survey," as used in reference to the location of a railroad, means not only a delineation on paper or other material, giving a general or approximate idea of the situation of the road, but also such full and accurate notes and data as are necessary to furnish complete means for identifying and ascertaining the precise position of every part of the line, with courses and distances throughout, so that there can be no doubt SURVEY 6825 SURVIVE SURVIVING-SURVIVOR where any portion of it is to be found. San | tate, when the question was whether her hus- The word "survey" does not necessarily, ex vi termini, mean a map or profile. They are sometimes used as convertible terms, but not always. Books filed by a railroad in the office of the Secretary of State, containing a description in words and figures of the commencement of the road, the different stations, the courses and distances between such stations, and the number of stations to the termination of the road, are a survey, within the meaning of the company's charter, re quiring that a survey of its route and location shall be deposited in the office of the Secretary of State. Attorney General Stevens, 1 N. J. Eq. (Saxt.) 369, 385, 22 Am. Dec. 526. SURVEYOR OF HIGHWAYS. V. ▲ "surveyor of highways" is merely a ministerial officer of the town council, subject to their direction and control, with no authority to incur any indebtedness against the town, except, perhaps, in case of emergency, such as the removal of snow or other obstruction from the highways, and is clothed with very limited and well-defined powers and duties. Sweet v. Conley, 39 Atl. 326, 327, 20 R. I. 381. SURVIVE-SURVIVING SURVIVOR. band in his lifetime had given away such property, or whether it was her husband's at the time of his death. Seabright v. Seabright, 28 W. Va. 412, 459. Where a trust deed conveys certain property to certain trustees, and to the survivor of them, or the assigns of such survivor, the term "the survivor or his assigns" necessarily imports the power to transfer by the survivor. Peck v. Ingraham, 28 Miss. (6 Cushm.) 246, 262. The description of plaintiffs in the complaint and in the judgment as the "survivors" of a firm is mere description and nothing more. Calling them "survivors" does not make them any the less plaintiffs in their individual right and capacity. Describing a person as the "survivor" is merely describing, not the capacity in which he sues, but the mode in which his title is derived. As a description it is immaterial and surplusage. In re Lawrence (U. S.) 5 Fed. 349, 352. The word "survivor," in a devise, must be taken in its plain, literal sense, and includes descendants of the immediate devisee contemplated by the testator. Bayless v. Prescott, 2 Ky. Law Rep. 262, 265, 266, 79 Ky. 252. Where testator devised certain property to his daughter, the same to be equally divided after her death among her children and their heirs, and, if she should die without issue, it was to be divided among the sur was held to include children of a sister not surviving. Appeal of Naglee, 33 Pa. (9 Casey) 89, 91. As referring to death of testator. "Survivor" is usually applied to the lon-vivors of his children, the word "survivor" gest liver of two or more partners or trustees, and has been applied in some cases to the longest liver of joint tenants and legatees, and to others having a joint interest in anything; but it has no application to persons related as principal and agent, and an assured, in an action against the company, is not prohibited from testifying as to conversations with defendant's agent, since deceased. Reynolds v. Iowa & Nebraska Ins. Co., 46 N. W. 659, 660, 80 Iowa, 563. "Surviving," as used by a testator in directing that his real estate be divided into as many shares as there may be surviving children, refers to the death of the testator. Appeal of Barker (Pa.) 3 Atl. 377. A testator, as to certain lands, deIn an action against a partnership, evi-clared that, should they not be sold by himdence of a conversation between plaintiff and self, "then I wish my executors to dispose a deceased partner is inadmissible, under of them to the best advantage, and, when in Code 1873, § 3639, enacting that no party to funds for the same I wish for them to divide an action shall be examined in regard to any the money among the whole of my survivpersonal transactions between him and the ing children, share and share alike, to them deceased person against the survivor of such and their lawful heirs, forever." Held, that deceased person. Salyers v. Munroe, 73 N. the testator, by the term "surviving," meant W. 606, 607, 104 Iowa, 74. the children who survived him, and not those who were living when the funds arising from the sales were in the hands of the executors. Ballard v. Connors (S. C.) 10 Rich. Eq. 389, 392. By the word "survivor," as used in Acts 1882, c. 160, prohibiting an interested person from testifying as to certain transactions, is meant any person who, by reason of his surviving the deceased, would become, as such survivor, interested in the subject of the controversy, as, for instance, a widow who claimed a share of her husband's es A will devising property to testator's wife for life, remainder to his "surviving brothers and sisters," is to be construed as meaning the brothers and sisters surviving testator. Stone v. Lewis, 5 S. E. 282, 283, If it was his intent that only such children 84 Va. 474. "Surviving." as used by a testator in a devise of real estate to a certain party for and during the term of her natural life, and at the time of her decease to her sur viving children, equally, share and share alike, to hold to them, their heirs and assigns, forever, must be regarded as relating to the time of the testator's death, so that the children of such party living at that time took a vested remainder in fee. In re Twaddell (U. S.) 110 Fed. 145, 150. "Surviving," as used in a will devising property to A. for life, remainder to the surviving children of W. and J., and their heirs, forever, the rents and profits to be divided among them in equal proportion, share and share alike, refers to the testator's death, and not to that of the tenant for life. Long v. Prigg, 8 Barn. & C. 231. A will devising certain lands to the "surviving children" of certain brothers named meant only those who were surviving at the death of the testator. Eberts v. Eberts, 4 N. W. 172, 173, 42 Mich. 404. "Survivor," as used in a will empower ing the executors to sell all and any part of testator's land and pay his debts, the net residue after the payment of all such debts being given to such executors and to the survivor of them as joint tenants, means one who should survive the death of the testator. Forster v. Winfield, 23 N. Y. Supp. 169, 170, 3 Misc. Rep. 435. The words "survivors or survivor," in a limitation following a prior gift, are understood in Pennsylvania as referring to the death of the testator (Johnston v. Morton, 10 Pa. 245), unless the intent to refer them to some other period is plain and manifest. In re Martin's Estate, 39 Atl. 841, 842, 185 Pa. 51 (citing Woelpper's Appeal, 126 Pa. 562, 17 Atl. 870). should take as survived his widow, why should he say that his estate is to be ditheir heirs"? This expression indicates that vided among "my surviving children and the testator had in mind that, in case any of his children should die after his death before coming into the beneficial enjoyment of the estate, the heirs of such children should not be cut off. Grimmer v. Friedrich, 45 N. E. 498, 499, 164 Ill. 245. The word "surviving," as used in a will whereby the testatrix bequeathed certain pecuniary legacies to relations, and decreed that her furniture be given to her sister, and all her wearing apparel, books, and pictures to the surviving families in equal portions, naming four families, and further gave the residue of her estate to the surviving members of her brothers' and sisters' families above named in equal parts, refers to those surviving the testatrix. Hoadly v. Wood, 71 Conn. 452, 456, 42 Atl. 263. The word "surviving," as used in a will devising real estate to testator's daughter, and directing that if the daughter died before the testator's grandchildren, or either of them, the property should go to the surviving grandchildren, has reference to the death of the daughter. Pulse v. Osborn, 64 N. E. 59, 30 Ind. App. 631. Testator devised land to his wife, on her death to be equally divided between his children then surviving in equal shares. It was held that the word "surviving" means surviving the last tenant for life. Acree v. Dabney, 32 South. 127, 128, 133 Ala. 437. Testator devised an estate for life to his three daughters, "and from and immediately after the decease of my said daughters, respectively, and as that event happens, I give and bequeath the estate and property of the daughters dying, which shall then be held by the said trustee, under this, my will, to be equally divided among the surviving brothers and sisters and the lawful issue of such as may be dead; provided, however, that if my said daughters, or either of them, should die leaving lawful issue, the share of such daughter so dying shall go and be equal The word "survivors," in a will whereby a testator devised his lands to his wife for her life, and then to his children and some grandchildren named, to be equally divided between them at the death of the wife, and declared that it was his will that the farm and improvements should be sold after the death of his wife, so that the pro-ly divided among such issue and the lawful ceeds should be equally divided among the survivors named in the will, refers to the time of the testator's death. Nicoll v. Scott, 99 Ill. 529, 540. The phrase "surviving children and their heirs," in a will in which testator gives a life estate to his wife, and directs that the remainder shall be divided equally among his surviving children and their heirs, indicates that the testator intends the estate in remainder shall vest in interest at his death. issue of such as may be dead." Held, that the clause "surviving brothers and sisters" referred, not to the death of the testator, but to the death of the daughters without leaving issue. Woelpper's Appeal, 17 Atl. 870, 873, 126 Pa. 562. Testatrix devised "to my sister N.'s surviving children £30 each," and subsequently added: "I give to my sister N. interest of my funded property for her life, and after her decease such property to be equally divided SURVIVE SURVIVING-SURVIVOR between her surviving children." 6827 SURVIVE-SURVIVING-SURVIVOR Held, that in the first gift "surviving children" meant surviving the testatrix, but in the second gift meant children surviving the sister N. When a testator gives property to a person for life, after his death to his "surviving children," the meaning of that must be the children that survived when the interest that was given to the tenant for life becomes exhausted by the death of that party. Neathway v. Reed, 17 Eng. Law & Eq. 150, 152. A will by which the testator devised his dwelling house to his wife for life, and added, "but on her decease I give and devise the same to my surviving children, to be divided equally between them," meant the children who survived the wife, and not those who survived the testator, who were designated as the remaindermen, since the word "surviving" would have been unnecessary, if the testator meant to give the remainder of the estate to all of his children. Coveny v. McLaughlin, 20 N. E. 165, 166, 148 Mass. 576, 2 L. R. A. 448. "Surviving children," in a will providing that on the death of either of his two sons unmarried, to whom he had given the remaining part of his homestead farm, the part so given should be equally divided among all the testator's surviving children, should be construed to mean the children living at the time of the contingency happening, that is, the death of a son, and not those living at the death of the testator. Terril v. Sayre, 3 N. J. Law (2 Penning.) 598, 604. A will giving a life estate to testator's wife, remainder to testator's "surviving chil dren," is to be construed as meaning the children surviving at the death of the wife. Roundtree v. Roundtree, 2 S. E. 474, 477, 26 S. E. 450. A will by which testator gave a share of his estate to each of his daughters to be held in trust, and at her death to her children or to their issue, and in default of issue to the testator's "surviving children," means children surviving at the death of the daughter, and not at the death of the testator. Appeal of Reiff, 16 Atl. 636, 637, 124 Pa. 145. Testator gave the income of a certain sum to his daughter for life, and after her decease, in case she should leave issue, the principal to go to such issue, but, if she should die without issue, to his "surviving Testator directed that, after the death children" and their legal personal representa- of his widow, his residuary estate is "to be tives. Held, that the words "surviving children" meant the children surviving the daughter. Taylor v. Beverley, 1 Colly. 108, 114. divided and devised as follows," and then said: "I give" $1,200 to 3 persons named, "to be equally divided between them," and "I give and bequeath" to 3 other persons named "the sum of $300, to be equally di A will devising property to one of testa- vided between them, and the survivors and tor's children, and providing, if such bene- survivor of them," and "the residue of my ficiary die before he reaches the age of 21, estate ✶ ✶ I give and devise to" 24 or without issue, the property so devised shall be equally divided among testator's sur-tween them, and the survivors and survivor persons named, "to be equally divided beviving children, is to be construed as meaning testator's children who survive the death of such beneficiary. Holcomb v. Lake, 24 N. J. Law (4 Zab.) 686, 689. A will devising to each of testator's daughters a certain tract of land in fee, and providing, "if either of my daughters before mentioned shall die without lawful issue, it is my will that the lands devised to such daughter or son shall be equally divided among my surviving sons and daughters," is to be construed as meaning testator's sons and daughters who should survive the one dying without issue, and not the ones who were living when he made the will, or who should survive him. Seddel v. Wills, 20 N. J. Law (Spencer) 223, 228. Where a devise is made to testator's sons with the contingent remainder to the testator's "surviving children," in the event that neither of such sons marries, the remainder is to the children surviving at the time of the death of the first devisees unmarried. Terril v. Sayre, 3 N. J. Law (2 Penning.) 598. 604. 8 WDS. & P.-3 of them, it being one of the conditions of the devise, if any of the devisees named should be indebted to me, the principal amount of said debt to be deducted from his or her share, and said deduction to be made without regard to the date thereof"; he having previously, in his will, given legacies to be paid to survivors "at the time of distribution." Held that, in the disposition of the residuary estate, wherever the term "survivors or survivor" is used, it refers to survivors at the time of the distribution of that residuary estate; that is, at the death of the testator's widow. Dutton v. Pugh, 18 Atl. 207, 209, 45 N. J. Eq. (18 Stew.) 426. Testator made certain specific devises and bequests to several of his children. He then gave a life estate to his wife in his real and personal property not specifically disposed of. He then declared that his real and personal estate, after the death of his wife, unless she chose to give up the estate before her decease, should be sold and divided among certain of his children, and |