the conditions of continued ownership, or of power to appoint the remainder. In case of a breach of any condition, title would fail only as to No. 38 East Third street or its contents, and the benefits would accrue to the heirs and next of kin of the testatrix as such, and not to any person specifically designated in the will. The proof taken before me requires the finding that Sarah Hart and Esther Hart have accepted the devise tendered to them; that they have made the Third street house their residence, and that up to this time, they have complied with every condition imposed by the testatrix, and with every wish that she has expressed in her will. The conclusion which I have reached as to the proper construction of the will makes it unnecessary for me to discuss the question, so elaborately and carefully presented by the numerous counsel representing the various interests, as to an alleged suspension of the power of alienation. No one claimed that two successive life estates, with power to appoint a remainder, are not entirely valid. Since I determine that the residuary legatees are now entitled to take the residuary personalty absolutely and free from any condition, it follows that no bond can be required as to anything except only, perhaps, the contents of the Third street house, as to which they are tenants for life. They will not be required to furnish a bond as a condition for the delivery to them of the contents of that house at the time of the death of the testatrix, for the reason that they are, by virtue of the residuary clause, entitled to the remainder of such personalty after the expiration of their life interests therein. The contingency that they may forfeit a right to continued use of this particular personalty by the breach of a condition subsequent, does not defeat or cut down their title. Even as to real estate, such a contingency is not an estate vested in the heirs of the testator, and though it may be released, it cannot be granted or transferred by them. I have not been referred to any case where the power has been asserted, in a court of probate or a court of equity, to

The exercise of such a power

require a bond in such a case. in this case, if it exists and is discretionary, should be refused, because it might result in defeating a wish of the testatrix, based on sentimental considerations, that the persons selected by her should protect, care for any enjoy the articles of her personal use and the portraits of those who were dear to her. The Rural Cemetery at White Plains, referred to in the second paragraph of the will, has been shown by evidence taken before me to be the corporation having the legal title of "White Plains Rural Cemetery." The church described in the second paragraph as "the White Plains Methodist Episcopal Church, in the County of Westchester and State of New York, also known as the Village Church," was also shown to be the cor poration legally known as the "Memorial Methodist Episcopal Church of White Plains." The identity of a legatee may be proved by parol. Riley v. Diggs, 2 Dem. 184. The gift of $2,000 to "the persons who at the time of my death shall be trustees of the Rural Cemetery at White Plains," etc., in trust to apply the income in keeping the testatrix's family burial plot in order, is objected to by certain of the contestants, who also object to the claims of the residuary legatees. Since the claims of the residuary legatees are established, and they do not object, and the invalidity of the legacy would increase their shares in the estate (Riker v. Cornwell, 113 N. Y. 115), the objectants have no standing to urge the objection, and it must be overruled on this ground. The gift to the trustees of the cemetery, as such, to be invested and expended by them in a matter which concerns the affairs of the corporation, is a gift to the corporation. Matter of Wesley, 43 N. Y. St. Repr. 952, affd., 136 N. Y. 638; First Presbyterian Church v. McKallor, 35 App. Div. 98, 101; Chamberlain v. Chamberlain, 43 N. Y. 424, 347. The decree may be settled on notice. Parties deeming themselves entitled to costs will notice bills of costs for taxation, and all questions will then be disposed of.

Decreed accordingly.

Matter of the Judicial Settlement of the Accounts of JAMES O'BRIEN, as Executor, etc., of ELLEN O'BRIEN, Deceased.

(Surrogate's Court, New York County, Filed November, 1900.)

EXECUTOR AND ADMINISTRATOR-RIGHT OF UNPAID JUDGMENT CREDITOR TO OPEN THE SETTLEMENT OF THE EXECUTOR'S ACCOUNTS SUSPENDED BY A REVERSAL OF THE JUDGMENT.

Where a judgment, under which an unpaid creditor of an estate procured the opening of the settlement of the accounts of the executor, is reversed and a new trial granted, the creditor becomes merely a creditor holding a disputed claim, and, where his right to compel an accounting has become barred by time, the order opening the settlement of the accounts of the executors must be vacated, without prejudice, however, to a further application by the creditor should he again recover judgment.

Motion by an executor to vacate an order opening a decree, settling the accounts of the executor, and permitting the petitioner to file objections thereto.

Abram Kling, for executor; Davies, Stone & Auerbach, for Daniel J. Early, receiver.

THOMAS, S.-The order of March 9, 1900, vacating the decree rendered in 1888 on the accounting of the executor, and admitting the petitioner to intervene and file objections to the account, was proper on the facts then existing, the material circumstances being that a judgment had been obtained by the petitioner which was then in full force. The Statute of Limitations was held not to bar the remedy for an accounting, because that remedy, as a means for enforcing his judgment, did not accrue to the petitioner until the judgment was obtained, and the decision in Matter of Gall, 40 App. Div. 114, 42 id. 255, was referred to as the controlling authority. Since the granting of that order the judgment which was its foundation

has been reversed and a new trial ordered, and the petitioner now stands as a person claiming to be a creditor, holding a disputed claim not yet in judgment. As such, his remedy to compel an accounting was long since barred. Matter of Van Dyke, 44 Hun, 394. The motion to vacate the order heretofore made must, therefore, be granted, but without prejudice to any further application after the recovery of a judgment. The motion to compel the filing of an inventory is denied, also without prejudice.

Decreed accordingly.

Matter of the Application for Letters of Administration on the Estate of GIUSEPPI FATTOSINI, sometimes called JOHN GAGGENE, alias GIUSEPPI MATTORINI, Deceased.

(Surrogate's Court, Westchester County, Filed November, 1900.)

ALIENS RIGHT OF CONSUL GENERAL OF ITALY TO ADMINISTER ON ESTATE OF ITALIAN SUBJECT-SECURITY.

Where an Italian subject dies intestate in and leaves property in the State of New York, and his only next of kin are in Italy, the Consul General of Italy has, under treaties with the United States, exclusive right to administer upon his estate and may apply for letters in the court of the proper surrogate.

He need give no security where there are no creditors of the decedent.

Application for letters of administration.

D. E. Humphreys, for petitioner; no other appearances.

SILKMAN, S.-This is an application upon the petition of Giovanni Branchi, Consul General of Italy, for the issuance of letters of administration to him upon the estate of the above

named decedent, an Italian subject, who died and left property within the county of Westchester.

The petition alleges that the decedent left him surviving a widow and two minor children, his only next of kin, all residing at Castelletto, Verona, Italy.

In the absence of creditors, under the State statute the administration should go to the county treasurer, but the question is presented whether or not the treaty between the United States and Italy supersedes the State law, and whether or not the treaty authorizes and empowers the consul general to administer upon the estates of Italian subjects dying within the jurisdiction of his consulate.

The rights of the Consul General of Italy were under consideration in this court and discussed in Matter of Tartaglio, 12 Misc. Rep. 245, and it was there held that the distributive shares in the estate of an Italian subject belonging to next of kin resident in Italy were payable to the consul general, and a decree was made directing the county treasurer, with whom the distributive shares had been deposited, to make such payment.

There can be no question that State statutes must give way, in so far as they are not in accord with the obligations of the Federal government under its treaties with foreign nations, and they must be construed, and the procedure of local courts must be made to conform as nearly as practicable to the treaty obligations of the Federal government.

Treaty provisions are to be construed with much more liberality than legislative enactments. Terms and words used in the former are to be given the broadest meaning in order to effectuate the liberal intentions of the high contracting parties. Due regard must be had to difference in languages, nice distinctions must be avoided, and the great purpose of convenient international intercourse must be borne in mind.

It has been said that a foreign consul, without specific authority, has the general right to protect the rights and property