power to compel them to be brought in for that purpose. The executor or administrator selling the real property is deemed a testamentary trustee, within the provisions of title sixth of chapter eighteenth of part third of these Revised Statutes." The commissioners' note to this section is this: "Proposed as a substitute for Laws 1837, ch. 460, sec. 75 (4 Edm. St. 500), which confers upon the surrogate the power to distribute the proceeds. See Stagg v. Jackson, 1 N. Y. 206. We think that section 2319 [2514 of the present Code], subd. 6, pt. 3, of this revision, in connection with sections 2572-2580 [now being 2802-2811] of the present Code, sufficiently covers the subject; but we add the foregoing section for greater caution." The legislature did not enact this section, thus concurring in the view that the sections above referred to "sufficiently covered the subject." The conclusion is therefore reached that the executor, being at testamentary trustee, whose duties, as such, were separable from his duties as executor, is liable to account for the proceeds of sales made by him, in this court. By section 2743, which is made applicable to the accounting of a testamentary trustee by section 2811, the surrogate must decree payment and distribution. Thus, the powers of the court to decree payment and distribution, in a case like this, are the same as those conferred by the repealed section of the act of 1837. All the acts referred to empower the surrogate simply to distribute the proceeds of sales received by the executor, and he has power to charge the trustee with any proceeds of sale which he has omitted to charge himself with. He cannot inquire into the validity of any sales of real estate made by him by reason of fraud, and the like. The court is here asked, among other things, to pronounce a sale of a lot, made by the executor to his son, and by his son to the executor's wife, void for fraud. This the court has no power to do. Section 58 of the Revised Statutes, immediately following section 57, above referred to, declares that any executor or administrator or other person appointed as therein directed, who shall fraudulently sell any real estate of his testator or intestate contrary to the foregoing provisions, shall forfeit double the value of the land sold, to be recovered by the person entitled to an estate of inheritance therein. This section was not repealed by the repealing act of 1880, and is still in force. See 4 Throop's Rev. St. (1889), p. 2568, sec. 58. It was proposed by the enactment of section 47 of the said supplement to extend the provisions thereof to the case of an executor vested by the will with authority to sell the forfeiture to be recovered by an action, etc.; but for some reason it appears not to have received legislative sanction. It will be discovered. that in none of these enactments proposed, repealed, or in force is any power conferred upon the surrogate to inquire into and determine any question as to an alleged fraudulent sale, and he cannot do it now unless he is clothed with it by some statute. The question belongs to a higher tribunal. Surrogate's Courts are creatures of the statute, and have a jurisdiction limited thereby. It cannot be discovered that they are clothed with authority by any express law, nor any power incidental thereto. All their powers on the accounting of a testamentary trustee are defined by sections 2743 and 2812. By the latter section, where a controversy arises respecting the right of a party to share in the money or other personal property to be paid, distributed, or delivered over, it must be determined in the same manner as other issues are determined by them. See In re Rogers (Surr.), 16 N. Y. Supp. 197. Here the jurisdiction of the surrogate, as to the questions he may try, ceases, and he cannot go beyond and try and determine any others. In the case of Fulton v. Whitney, 66 N. Y. 548, at page 557, the court says that all the surrogate could do was to settle the accounts of the trusts created by the will. This was after the passage of chapter 115 of the Laws of 1866, which act is substantially the same as section 2802 of the present edition of the Code, and was the first which authorized a testamentary trustee to render and settle his accounts before the surrogate. All that may be sought by the petitioner in this proceeding is the recovery of interest on her share of the proceeds of real estate sold; and she has an undoubted right, as already remarked, to show, if she can, that the testamentary trustee has not accounted for all of such proceeds, and her share of the interest thereon. There is no controversy as to her right to so share. All of the objections taken to the evidence tending to show fraud in the sale of lands are sustained. The sole question that remains for determination, therefore, is the condition of the trustee's accounts. The account of proceedings filed is very unsatisfactory, loose in structure, confusing and embarrassing. There are only two schedules―designed, the one to show all receipts; and the other, all disbursements, embracing legacies paid, funeral expenses, and other expenses of administration, etc. They are not added. up, and no summary is furnished. Some of the dates of receipts of proceeds of sale are omitted, as are also any statement showing how and when investments were made, rate of interest, etc. There is no statement of the items of interest paid, or when, to Mrs. Burtis but the whole is given in a lump sum. Without enumerating other defects, these sufficiently show the careless manner in which the account was prepared. The petitioner is chiefly interested in ascertaining the amount of the proceeds of sales on which she is entitled to one-half the interest. According to the account To which is to be added proceeds of sale to Fraser, con- $72,703 25 500 00 To this is added one-half interest received.... $73,203 25 1,361 82 $74,565 07 From which the trustee claims should be deducted, including interest paid to Mrs. Burtis, and excluding charge for service of attorney herein 19,000.02 Balance $55,565 05 On which the petitioner, it is conceded, is entitled to one-half the interest, less expenses of this accounting and commissions. As the proceeds of the sale of the Halfway House were intended to pay the legacy of $500 and interest to the wife of the trustee, and as she was not entitled to interest, which amounted to $90, and with the payment of which he credits himself, there can be no ground of complaint, as he charges himself with $600; being $10 more than he credits himself with. The item of credit of $75 for interest on legacy to George B. Valentine must be disallowed, as the testator made it payable without interest. The trustee credits himself with some items in contempt proceedings in the Supreme or County Court. These proceedings appear to have been against him for some neglect of duty. These items, amounting, as nearly as can be ascertained, to $36.50, are disallowed. Adding these items to the above balance, makes it $55,676.55. It does not seem to be controverted that the petitioner has received $1,361.82 for interest moneys on her share. There is no evidence furnished, or data given, whereby the court can adjudge as to the correctness of that amount; but it is assumed to be all that her fund earned down to October 20, 1891, with the possible exception of the interest on $111.50-the sum of the items above disallowed. If the trustee has failed to produce proper vouchers for any of the credits claimed by him, he is still at liberty so to do. If he fail to do so, or furnish the evidence of payment thereof, as provided by section 2734 of the Code, they will be disallowed, and the fund in his hands increased accordingly. On the settlement of the decree, counsel can be heard as to any matter which may have been overlooked, and as to any other matter to which attention may be called. In re CARVER'S WILL. (3 Misc. 567.) (Surrogate's Court, Cattaraugus County, Filed May 10, 1893.) 1. WILLS-PRESUMPTIONS AS TO ALTERATIONS. Where alterations appear on the face of a testamentary disposition of property, such alterations are presumed to have been made after execution, rendering it necessary for those seeking to establish a will containing such apparent defects to overcome such presumption by proof, direct or inferential. This is an exception to the general rule as to other instruments, which provides that such alterations, in the absence of proof to the contrary, are presumed to have been made before the execution of the writing in which they appear. 2. SAME-EFFECT OF ALTERATIONS. Although as a general rule a material alteration in written documents, made after execution, for fraudulent purposes, vitiates the entire instrument, the effect of an unauthorized and unauthenticated alteration in a will, made after execution, is to render the change inoperative, leaving the will to stand in form and effect as before such alteration was attempted. 3. SAME-ALTERATIONS--WHEN MADE BEFORE EXECUTION. A testator bequeathed to his wife $400 annually out of his personal estate, also all his household furniture, goods, books, pictures, organ, clothing, etc., to be accepted in lieu of dower. It was claimed that the words "to be accepted in lieu of dower" were fraudulently inserted after execution. Held, that as the words "clothing, etc., to be accepted in lieu of dower" were written upon and constituted one entire line in regular order, and were not crowded, and the only person to be prejudiced by such words, viz., the widow, urged probate of the will as it stood, and the family physician, who had witnessed the will, and carefully examined it at the time of execution, testified he observed no alteration therein, the words in question were not inserted after execution, although the letters in such words were somewhat heavier and of a darker shade than most of the other parts of the will, but, not of particular portions thereof. 4. WILLS-TESTAMENTARY CAPACITY. When both witnesses to a will, one the family physician of many years standing, and the other an old neighbor and intimate acquaintance of decedent, who nursed him in his last illness. testify that dece |