§ 230 Withdrawal of Objections to Probate. and allowances in their favor upon the estate did not change the situation. It was practically a charge upon their own property for the benefit of their attorneys." The courts, however, are disposed to limit the strict application of this decision in some cases. See Matter of Thomas, 39 Misc. Rep. 223, 79 N. Y. S. 571, where Surrogate Thomas, of New York county, holds that disbursements honestly and properly made by an executor or administrator in litigating to assert a right of the estate, or to defeat an assault upon it, or even in buying peace for the estate, are to be allowed as a deduction. Also Matter of Maresi, 74 App. Div. 76, 77 N. Y. S. 76, where the costs and disbursements of an action brought by the executors to have the will construed were allowed as deductions, the court saying: "The action was instituted in good faith and was fully justified by the result. The expense was a legitimate outlay incurred, not by the legatees, but by the personal representatives of the estate, in order to secure judicial construction of the will and instruction as to the distribution of the estate and was in every just sense a proper administrative expenditure of funds which do not pass to the legatees either in fact or in theory." 611. Sum Paid for Withdrawal of Objections to Probate Not Allowed. But where the proponents of a will paid a niece of testator, who had filed objections to its probate, $10,000 to induce her to withdraw her objections, the court held that there was no purchase of peace “for the estate" by such a settlement, but that the payment to the niece was one "out of the property transferred to the beneficiaries in satisfaction of their own contract When Bond Not a Debt of Decedent. § 230 obligation, and was not an expense of administering the estate or deductible from the appraisal.' Matter of Marks, 40 Misc. Rep. 507, 82 N. Y. S. 803. 612. The Amount of the Individual Bond of a Decedent Ac companying a Mortgage Executed by Both Decedent and His Wife upon Real Estate Owned by the Wife, Will Not Be Deducted from the Decedent's Personal Estate as a Debt Owing by Him. In the Matter of Calman, 100 App. Div. 517, it appeared from the evidence adduced before the appraiser that on May 13, 1895, the decedent, Emil Calman, conveyed to his wife certain real estate in New York city, subject to a mortgage of $35,000. This deed was not recorded until after Emil Calman's death, June 17, 1902. In 1898, while this deed to his wife was still unrecorded, the decedent procured a new loan of $35,000 upon said premises and with the money thus received paid off the mortgage for the same amount which was upon said premises when they were deeded to his wife in 1895. The new mortgage was made by the decedent and his wife as though the decedent was the owner of the fee of the premises and the individual bond of the decedent accompanied said mortgage. No evidence was offered to explain the decedent's object in representing himself as the owner of the premises and in excuting the bond and mortgage for $35,000 as such owner, except that the executors claimed that the decedent intended to make a gift to his wife of the old mortgage, which was satisfied when the new bond and mortgage was given, and in so doing made himself liable for the amount thereof. The appraiser refused to allow the $35,000 representing the amount of the personal bond of decedent § 230 Exemptions under Section 2713, Code. as a deduction from the decedent's personal estate and the surrogate confirmed this report. The executors appealed from the order of the surrogate assessing the tax upon the ground that “ said report failed to allow as a deduction from the property of the decedent a certain indebtedness of decedent for $35,000, evidenced by his personal bond, although such indebtedness, being a liability of the estate of said decedent, should have been deducted The surrogate affirmed his previous order, and the Appellate Division of the First Department on January 19, 1905, affirmed the surrogate's decision, without opinion. 613. Articles Enumerated in Subdivision 3 of Section 2713 of the Code Not Entitled to Money Allowance Therefor. Under subdivision 3 of section 2713 of the Code of Civil Procedure, entitling the husband, wife, and minor children of a decedent to have set apart to them out of the decedent's estate the articles enumerated therein, such as sheep, swine, cows, etc., the husband, wife, and minor children are not entitled, if the decedent was not possessed of such articles, to a money allowance equivalent to their value, nor in such a case should the money equivalent of such articles be deducted from the value of the assets of the decedent's estate when fixing the amount of the transfer tax thereon. Matter of Libolt, 102 App. Div. 29, distinguishing Matter of Williams, 31 App. Div. 617, 52 N. Y. S. 700. See Matter of Keough, 42 Misc. Rep. 387, 86 N. Y. S. 807, and Baucus v. Stover, 24 Hun, 109. 614. Money in Lieu of Certain Articles Not to Be Deducted. The language of subdivisions 1, 2 and 4 of section 2713 of the Code of Civil Procedure clearly estab When Claimant Is Residuary Legatee. 8 230 lishes the legislative intent to limit the exemption for the benefit of a widow, widower, or children of a decedent so provided, to such of the articles named as were possessed by the decedent at the time of his or her death, and excludes any inference of an intention to authorize the substitution of cash, if the articles named did not form part of the estate. Matter of Baird, 126 App. Div. 439. 615. Widow Entitled to Money Equivalent in Lieu of Neces sary Provisions and Fuel for Sixty Days. In the Estate of Bollweber, N. Y. Law Journal, May 31, 1905, it appeared that the balance in the hands of the administratrix was $235, and Surrogate Thomas held that $150 of this sum was to be awarded to the widow under subdivision 5 of section 2713 of the Code of Civil Procedure, and that as the widow was also entitled to all necessary provisions and fuel for herself and children for sixty days after the death of her husband, or a money equivalent therefor, he fixed such sum at $85, which left no balance for distribution. Citing Matter of Williams, 31 App. Div. 617, 52 N. Y. S. 700; Matter of Libolt, 102 App. Div. 29. 616. When Naming a Claimant as a Residuary Legatee, Does Not Bar the Claim as a Valid Deduction. Where a niece, without any legal obligation on her part to do so, receives her aunt into her home, and, in addition to providing her with a home and boarding her, renders laborious services which during the last two years of the aunt's life occupied most of the niece's time and attention day and night, an agreement to pay a reasonable compensation will be presumed, and where the aunt a short time after coming to the niece's home made her will in which she first directed that all her just debts and funeral expenses should be paid, and thereafter devised and bequeathed all her property unto the niece, appointing her the executrix of her will, the niece could have recovered from her aunt's estate the value of the services rendered, and for the purpose of taxation the claim should be allowed as a valid debt and the residue of the estate passing to the niece is all that is taxable. Matter of Enos, 61 Misc. Rep. 594. 617. Creditor Not Accepting Payment of Debts by Will. Where a will directs the executors to pay a debt, but the creditor proves his claim as a debt and the executor pays it as such, it is a proper deduction from the decedent's estate, and the amount thereof is not liable to a transfer tax (citing Matter of Gould, 156 N. Y. 423). Matter of Levy, N. Y. Law Journal, May 15, 1907; affd., 122 App. Div. 919. 618. Legacy to a Creditor-Not to Be Deducted. A general clause in a will directing an executor to pay the decedent's just debts, funeral expenses, etc., from his personal estate has never been questioned as being a transfer by will to the extent of such debts and expenses, and therefore subject to the provision of this act; but where by the terms of the will the testator attempts to pay an indebtedness or claim against him by making a bequest to the creditor in liquidation of the claim, such bequest is taxable, as a legacy, if accepted by the creditor. The Court of Appeals said in the Matter of Gould, 156 N. Y. 423-428: "It matters not what the motive of a transfer by will may be, whether to pay a debt, discharge some moral obligation, or to benefit a relative for whom the testator entertains a strong affec |