Surrogate's Court, St. Lawrence County, July, 1900. [Vol. 32. widow would be entitled to receive the profit? If not, why should she be charged with a loss? The evidence in the case and the conduct of the executor show that there is no accurate and well defined method of measuring the loss by depreciation. No one can say that the boat will be worth ten per cent. or any other per cent. less next year than this. She may be worth more. And the executor has not followed any rule in setting aside part of the income to provide for depreciation. In 1895 he set aside nothing, but paid a debt incurred for a loss arising in 1894. In 1896 he set aside about thirty-five per cent. of the net earnings, in 1897, all, in 1898 thirty-three and one-third per cent., and in 1899 about thirty-five per cent. There is no evidence that these sums are the amounts actually lost by depreciation in those years. If the widow were chargeable with depreciation at all the amount should be accurately shown by the evidence instead of being arbitrarily fixed or guessed at. The foregoing construction of the will seems to me to be in accord with the authorities. Matter of Hoyt, 160 N. Y. 607; McLouth v. Hunt, 154 id. 179. The executor would probably be justified in retaining a reasonable sum in his hands out of the income from the boat to provide for emergencies in the way of repairs and current expenses, and possible losses in the business. But the fund would belong to the widow, and if it were not needed for those purposes it should be paid to her. As arrangements have been made for the sale of the boat it is not now necessary to make future provision for these contingencies. If I am correct in this construction of the will it follows that the widow is entitled to receive the $1,345.92 deducted from income and used to pay an obligation incurred during the life time of the testator and the $3,075 reserved from income to meet depreciation. She is not, however, entitled to interest upon either of these sums. She has received the income from the $3,075, which was invested by the executor, and she has also indirectly received the income from the $1,345.92 because the principal of the estate has been increased by that amount. I am asked by counsel to construe the will of Richard B. Chapman (father of the testator), under which Frank Chapman is the executor and Richard A. Chapman was one of the beneficiaries, Misc.] Surrogate's Court, Suffolk County, July, 1900. and to pass upon the right of the executor to continue paying to himself a salary for his management of the estate. The executor claims that he has paid to the widow as income derived from the Richard B. Chapman estate some moneys which are properly part of the principal of the Richard A. Chapman estate, but the evidence fails to show just what income accrued from the Richard B. Chapman estate before and what accrued after the death of Richard A. Chapman. It seems to me that such questions ought to be determined in proceedings arising directly under the will of Richard B. Chapman, and I, therefore, refrain from making any ruling on those questions here. Let a decree be drawn settling the executor's account in accordance with the foregoing and submitted for signature on two days' notice. The decree should reserve all questions relative to the estate of Richard B. Chapman and payments therefrom. Upon the settlement of the decree I will hear such suggestions as counsel desire to make in regard to the allowance of costs, disbursements and commissions. Decreed accordingly. Matter of the Probate of the Paper Propounded as the Last Will and Testament of LULU V. DE CASTRO, Deceased. 1. Will (Surrogate's Court, Suffolk County, July, 1900.) Failure to prove that the testatrix knew its contents. A will must be refused probate where it was made near the close of the life of a testatrix who had become enfeebled by a lingering disease, where the instructions as to its provisions were given by her husband to the draftsman and where it was not shown that she gave the said instructions to her husband, or that she ever read the will, or that it was read to her, or that she knew its provisions, or that those provisions expressed her wishes. A will should be refused probate where the proof is not clear as to its formal execution and attestation. Surrogate's Court, Suffolk County, July, 1900. [Vol. 32. PETITION for probate of the will of Lulu V. De Castro, deceased. Objections were filed on behalf of Jennie W. Jetter, an infant and heir-at-law and next of kin of said deceased, on the usual grounds; among others "That at the time the said instrument was signed the said Lulu V. De Castro did not know or understand the contents thereof." George G. Raynor, for proponent. Theodore D. Dimond, special guardian for Jennie W. Jetter, con testant. Timothy M. Griffing, special guardian for Madge L. De Castro, a minor. PETTY, S. The instrument offered for probate as a will was executed by Lulu V. De Castro when she was enfeebled by disease from which she had been a sufferer for many years, and when she was near the close of her life. The instructions as to the provisions of the will were given to the draftsman by her husband, the proponent herein. The evidence does not show that these instructions were given by deceased to her husband, or that she ever read the will or that it was ever read to her, or that she knew the provisions thereof, or that those provisions expressed her wishes. A will offered for probate must be the will of the testator, and of no one else, and when a testator is ignorant of the contents of the paper propounded, it cannot be said to be his will. Proponents are bound to show affirmatively as a condition of probate, that the testator had an intelligent knowledge of the contents of the will. Barry v. Boyle, 1 T. & C. 422; Townsend v. Bogart, 5 Redf. 93; Hyatt v. Lunnin, 1 Dem. 14; Cooper v. Benedict, 3 id. 136; Heath v. Cole, 15 Hun, 100; Jones v. Jones, 42 id. 563; Matter of Green, 67 id. 527. In Matter of Sampson, N. Y. L. J., June 7, 1891 (N. Y. Surr. Ct.), the court said: "With the advanced age of the wife, her debilitated condition for years, her inability to plainly express her thoughts in speech, and the fact that the instructions in respect to its provisions had come from the husband, mere proof of formal execution was not sufficient to admit the instrument to probate. Misc.] Supreme Court, Appellate Term, July, 1900. It was incumbent upon the proponent to prove to the satisfaction of the court that she understood the provisions of the instrument, and that they expressed her wishes at the time of its execution." In Matter of Rollwagen v. Rollwagen, 63 N. Y. 504, the Court of Appeals held that where the deceased was shown to have mental capacity, but to have been undoubtedly impaired in mental power, and his will enfeebled by paralysis and disease, a party who offered an instrument for probate as a will must show satisfactorily that it is the will of the alleged testator, and upon this question he has the burden of proof. And in the same case Judge Earl observes: "There must then not only be proof of the factum of the will, but also that the mind of the testator accompanied the act, and that the instrument executed speaks his language and really expresses his will." The proponents have failed by their evidence to satisfy me of these requirements. Under the facts and circumstances of this case, if the proof was clear as to the formal execution and attestation of the will, that would not be sufficient in order for me to admit the instrument to probate. See cases already cited. But the proof as to the execution of this instrument does not satisfy me that it was executed or attested in the manner prescribed by law. Probate denied. MATILDA MARY EBERLE, Respondent, v. JOHN H. SCHILLING et al., Appellants. (Supreme Court, Appellate Term, July, 1900.) Action against sureties on guardian's bond They need not be cited to his compulsory accounting - Admissibility of decree fixing his liability.. Sureties of a guardian need not be cited to a compulsory accounting instituted against him by his ward but, although not cited, are bound by a decree made therein fixing the amount of his liability. Where he does not pay the debt his ward may prove the decree in an action subsequently brought by her to recover the debt of the sureties, and this because they are privy to proceedings against him and in the absence of fraud are concluded where he is concluded. Eberle v. Bryant, 31 Misc. Rep. 814, affirmed. Supreme Court, Appellate Term, July, 1900. [Vol. 32. APPEAL from a determination of the General Term of the City Court of the city of New York, affirming a judgment of the Trial Term rendered by a jury in favor of the plaintiff. Action begun November 12, 1895, on a bond, given December 8, 1886, by John H. Schilling, as guardian of the property of the plaintiff, then a minor, and upon which bond the defendants Bryant and Van Riper were sureties. Schilling lost the fund, which consisted of $500. The sureties replaced it and deposited it, to the joint credit of Schilling and themselves, in a trust company which became insolvent in 1891, and the fund was wholly lost. Upon the petition of the ward (the plaintiff herein) Schilling accounted and by a decree of the proper surrogate, made September 26, 1895, to which decree the sureties were not parties, was found indebted to the ward in $752. Execution was issued, returned unsatisfied and thereupon the present action was begun. Although named in the summons, Schilling was not served with it and died insolvent in New Jersey, about February 23, 1896. The defendant sureties, by their answer, denied liability under the circumstances and also alleged that the decree of September 26, 1895, was fraudulent. J. Wilson Bryant, for appellants. Powell & Cady, for respondent. Per Curiam. The case contains no certificate that it includes all the evidence, and it is apparent upon inspection that certain exhibits read on the trial are omitted. Nor did the defendants move to set aside the verdict and for a new trial, or except to the direction. of a verdict in favor of the plaintiff, or ask to go to the jury upon any question of fact. We are, therefore, confined to an examination of the exceptions taken in the course of the trial. The only exceptions that require consideration are those taken to the admission of the surrogate's decree of September 26, 1895, fixing the amount due to the plaintiff from John H. Schilling, the guardian, for whom the defendants Bryant and Van Riper were sureties. It is objected that this decree was not conclusive upon them because they were not cited or made parties to the proceedings. The accounting was an involuntary one, founded upon the petition of the ward. Assuming that the decree was free from fraud, there can be no doubt that it bound the sureties, because, by |