decree to the same effect is procured from a Surrogates Court of this State, which has duly granted letters testamentary, or letters of administration, upon the estate of the deceased judg ment debtor. Where the lien of the judgment was created as prescribed in section twelve hundred and fifty-one of this act, neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent, and for that purpose such a lien existing at the docedent's death continues for three years and six months thereafter, notwithstanding the previous expiration of ten years from the filing of the judgment roll. But where the decedent died intestate, and letters of administration upon his estate have not been granted within three years after his death by the Surrogate's Court of the county in which the decedent resided at the time of his death, or if the decedent resided out of the State at the time of his death, and letters testamentary or letters of administration have not been granted within the same time by the Surrogate's Court of the county in which the property on which the judgment is a lien is situated, such court may grant the decree where it appears that the decedent did not leave any personal property within the State upon which to administer. In such case the lien of the judgment existing at the decedent's death continues for three years and six months as aforesaid. But this section shall not apply to real estate which shall have been conveyed, or hereafter may be conveyed, by the deceased judgment debtor during his lifetime, if such conveyance was made in fraud of his creditors, or any of them, and any judgment creditor of said deceased, against whose judgment said Conveyance shall have been, or may hereafter be, declared fraudulent by the judgment and decree of any court of competent jurisdiction, may enforce his said judgment against such real property, with like effect as if the judgment debtor was living. and it shall not be necessary to obtain the leave of any court or officer to issue such execution, and the same may be issued at

any time to the sheriff of the county where such property is or may be situated. The person issuing such execution, however, shall annex thereto a description of the real estate against which the same is sought to be enforced as aforesaid, and shall endorse on said execution the words 'issued under section thirteen hundred and eighty of the Code of Civil Procedure,' whereupon said sheriff shall enforce said execution as therein directed against the property so described, and not against any other property, either real or personal, and all provisions of law relating to the sale and conveyance of real estate on execution and the redemption thereof shall apply thereto."

By the first part of the third sentence of above section the order of the County Court or decree of surrogate cannot be made nor execution issued until the expiration of three years after letters testamentary or of administration have been granted. And immediately following in the same sentence are these words, "and for that purpose such a lien existing at the decedent's death continues for three years and six months 'thereafter,' notwithstanding the previous expiration of ten years from the filing of the judgment roll."

These provisions were undoubtedly made to enable the administrator or executor to make an inventory of the personal property, and ascertain whether the judgment or any part thereof could be paid or satisfied from the personal property. And it is quite clear that words, "existing at the decedent's death," are here used only as qualifying words as to the time such lien must commence, and not otherwise in any way affecting the limitation of the time from three years and six months from granting of letters. This view is confirmed by the remaining sentences of said section 1380, providing for cases in which, under the circumstances therein named, leave to issue execution may be granted, where letters have been issued, and limiting the last sentence of such section as follows: "in such case the lien of the judgment existing at the decedent's death continues for three years and six months as aforesaid."

There is no time limited by the Code or practice in which

letters of administration may be issued after the decedent's death. If not issued in three years after such death, they may be issued thereafter upon the petition of any creditor, next of kin or other person interested in the estate contingently or otherwise.

Bearing in mind that no order for leave to issue execution can be made under section 1380 in less than three years after letters testamentary or of administration have been granted and such leave is obtained by section 1381 of Code, which expressly provides that notice of application for leave to issue execution "must be given to the executor or administrator."

Suppose the next of kin or creditors neglect to obtain such letters, as in this case, until about the time or after the three years and six months have expired from the death of decedent, instead of same time after letters have issued, the latter time dating from issuing of letters is wisely provided for in the construction of the word "thereafter," as claimed by the petitioner, so as to give reasonable time to examine the condition of the personal estate and make an inventory absolutely necessary to ascertain the value of the personal property that may be applied in payment of the judgment or some part thereof, whereas in the former case no such remedy would exist.

If the meaning of the word "thereafter" is as claimed by the mortgagee as used in section 1380, why should the words "as aforesaid" have been used at the close of the last sentence of said section in place of the word "thereafter," so the sentence would read, "In such case the lien of the judgment existing at the decedent's death continued three years and six months thereafter," instead of "as aforesaid," and thereby giving such sentence a meaning as claimed by the mortgagee.

The question is new, and I have been unable to find any authority bearing upon it except the decision of the learned county judge of Chautauqua County, granting an order a few days since in this case upon the same facts as herein, for leave to issue an execution to collect the judgment in question by sale of said land.

I do not think that the case of Platt v. Platt, 15 St. Rep. 217, cited by the counsel for the mortgagee, is in point, as the precise question here involved was not in it.

The following authorities were cited by counsel as bearing upon the questions raised: Townsend v. Tolhurst, 32 St. Rep. 21, and cases therein cited; Code, secs. 1251, 1377, 1381, 1379 and 3017; Matter of Holmes, 36 St. Rep. 535; Waltermire v. Westover, 14 N. Y. 16.

I direct decree for leave to issue execution to sell the land as prayed for in the petition.

(Note.-Affirmed by General Term, 50 St. Rep. 275.)

In the Matter of Proving the Last Will of WILLIAM H. GREEN, Deceased.

(Surrogate's Court, Rensselaer County, Filed March 8, 1892.)

1. WILL-UNDUE INFLUENCE-DECLARATIONS OF TESTATOR.

While the fact of fraud or undue influence cannot be proved by the declarations, prior or subsequent, of the testator, such declarations are admissible when they denote the mental status or mental fact in issue.

2. SAME.

A change of testamentary intention, however, sudden, which results in giving the inheritance to the heir is not even ground for suspicion when the change follows a reconciliation after estrangement; especially when the reconciliation is stripped of sinister appearance, even, by reason of the first advance proceeding from the testator.

Probate of will.

Two wills are presented for probate: the first of which is dated July 2, 1888, with a codicil dated July 2, 1890, in which Eugene F. Barnes and Albert C. Barnes are named as executors, and the second is dated July 22, 1890, in which Georgianna R. Green is named as sole executrix.

Alden, King & Speck and Henry A. Merritt, for executors of first will; Davenport & Hollister (Charles E. Patterson, of counsel), for executrix of second will.

LANSING, S.-Robert Green, father of testator, a prominent business man and an old resident of the city of Troy, died in 1876, leaving a widow and two children. He was twice married. By his first wife he had a son, the testator. The only surviving child of the second marriage was a daughter, Georgianna R. Green, born some ten years after her brother. about forty-eight years old at time of his death.

He was

The property which William H. Green owned at the time of his death was derived principally from his father. It consisted of one-half interest in two brick stores in Troy and a threestory brick building in Brooklyn, and certain stocks and bonds and a collection of pictures, coins and books, all of the value of about $40,000.

After the death of Robert Green his widow and his two children continued to live together. Mrs. Green became an invalid, and after being confined to the house for several years and to her bed for months, died in November, 1888. Neither William H. nor his sister ever married.

William H. Green continued to reside at Troy until his death, which occurred August 11, 1890, at Patchogue, where he was temporarily sojourning.

Among his relatives, besides his sister, testator had three cousins residing at Troy, children of Mrs. Kate Green and William H. Green (his father's brother), viz., Misses Mamie, Sarah and Emma Green, and six second cousins in Brooklyn, children of a cousin of his father, viz., Eugene F. and Albert C. Barnes, and their four sisters, Misses Emma and Angie Barnes, Mrs. Robbins and Mrs. Wykoff, who are the beneficiaries under the will of July 2, 1888. He had also four cousins, the children of his mother's brother, residing at Peekskill, N. Y., who, with his sister, were the beneficiaries under the last will of July 22, 1890.