The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-12-14
MRS. LA BAU'S CLAIM.

| ARGUMENT BEFORE THE SURROGATE ON HER
| APPLICATION FOR TWENTY THOUSAND DOL
LARS OUT OF THE VANDERBILT EsrATE-DE-
| cIsIoN RESERVED.
| The claim OF Mrs La Bau for $50. o0o to be paid
from the estate OF tho late Commodore Vanderbilt
pending the OF her suit 10 break the will came
up for q hearing before Surrogate Calvin yesterday
afternoon. the counsel for the plaintiff contendod
that II the will sustained his client would got
$500 900, and II she claim against the estate
her share would DO 000 that shc was present
In need Of money support herself and family and
therefore asked for advance OF $4,000, which
could be deducted from her share In eithcr event.
Counsel on the other side objected, that By fling
papers contestng the will Mrs La Bau had tied up the
hands Of the that they could not pay any
legacy and the Surrogate had power to remove the
disability thus created Surrogate Calvin took the
papers in the case. reserviug hts decision.
rnE PROCEEDINGS
Tho court room was comparatively quiet few per-
sons being present except tho counsel both sides
and the members Of tho press Cornelius Vanderbilt
stepped into the and sat down for few momeuts
during the argument but went out Shortly after
O'Clock Surrogate Calvin took his scat and an
nounced that he was ready to hear argument in the
case.
ton Court, the amended portion Of which Is
foowss-"Your petitioner further shows that she is
widow and has four children, and Is compelled TO sup
port herself ana family under an Income OF less than
$40 800 per from all sources; that for several
years before his death her father gave her
$4,000 per annum not now received, and
that her income from other sources was as large bo
ioro his death AS now; that nearly all her property
derived from her deceased husband that for two
years past her son, MINOR, was suffering from
illness and she Is obliged to spend upward OF
81, 600 year in his behalf that his physicians rec
commended sea voyage, which she was unable to
give him that her income been much curtailed,
she Is unable " support herself and her family
In The manner 10 which they had already been accus
toned"
Mr. Clinton said that he did not think the motion to
such allowance could DO entertained, as no
did not believe the Court had any legal power or uris
dicton 10 grant II.
The Surrogate said that this point should first be
decided and then, II there was need OF reference TO
decide the other matters In Mrs. La Bau's claim, It
could DO ordered Ii tho Court had no jurisdiction
reference before that should be decided would be
useless expense.
Mr. Clinton then moved 10 dismiss tho petition
the ground that tho facts stated IN tho petition con-
ferred upon tho Surrogate jurisdiction to grant the
reliei asked fog The statute, he said upon which tho
claim based read as follows:-"Any person en-
titled any Legacy dstrbutive share OF the estate
the deceased ut time previous 10 the expiration
OF one year may apply to the Surrogate, after giving
reasonable notice 10 administrator EXECUTOR TO
be allowed to receive such portion or share as
for his support" Another section provides that
bonds shall be nlcd the return OF tho amount
be proved that they had NO right 10 the claim.
There must also be onethrd more assets Than are
sufficient TO pay all claims against the estate But
did not yet appear that tho plann was emitted 70
dollar Of her iathers estate. Her action had tied up
the executors hands and thrown them back where
they before letters testamcntary were issued.
Tho probate OF the will so far as her rights were con-
erned Was suspended until the decision Of her con-
test This was true OF all tho legatees, whether
proponents or contestants. The statute under which
the claim was made did not apply TO con-
tested cases. Such a claim must be entered within
hitfh va UOrn aHiu d n
contests had been decided. II the law meant year
from tho death Of the testator II would result In an
nbsurdty Tor IT provided that At the expiration OF
year the snail pay the legacies dis
tribuvo shares In that they would have to pay
Them provided the coolest lasted year. Again
there should be specific motion 70 take so much out
butive share. The Court could not grant 1t Aterna
tively 1t could not adjudsate conditlonally.
The Surrogate-On the other hand thcy claim that
the word ''or' IN the law makes IL alternative.
CAN THE ESTATE BE DisTRIBUTEDY
Mr Clinton proceeded TO ask how tho Court could
distribute an estate TO the lcgatces Or next Of KIN
whom Il was not judciay decided whether anybody
was entitled 10 anything. For augnt the Court knew
there might previous wills excluding tho petitioner
altogether. II the doctrine OF other SIDE
true that the petitioner could take her entire legacy
provided there wero assets than sum-
cient 10 pay all CLAIMS II equally all
legaees, and the absurdity would result that tho
wnoe estate could DO divided before II was decided
whether there any will at all.
This ended Mr. Cnon's plea OF non-iurisdiction
but az tho suggestion OF The Surrogate he concluded
Bau, thut Tho plea were not sustained an-
other session would not DO necessary. Mr. Clinton
then read the answer, which was general denial Of
Interpretations contained IN the petition.
Mr.. Lord replied on the argument Tor Jurisdiction
that his opponent had confounded the powers OF tho
executors with the powers OF the Surrogate's Court no
had conounded the limitations imposed upon the ex-
exutors with the statute which conferred the
Court separate and independent power The Court
hud Jurisdiction because they were within the terms
OF the statute In this all the requirements had
been fulfilled; there debts alleged the estate
was many millions than the share Of the lcgatec.
His opponent blended two statutes which we're entirety
separate Mrs.. La Bau should not be punished
claim because she haa led allegations against
tho WILL Tho statute saying that whenever legace
shall into cour. showing that tho executors have
in their hands onc-nrd more OF osscis than
the amount Of all possible claims the Surrogate has
power to order reasonable amount OF the legacy TO
paid the person applying is Nm absolute and IN
dependent power conferred'on him. Here soa
bounced by certain shores, and In that could be
found his honor's pUwerR
Sir. Clinton-That's tho trouble; you all at
Q.aughtcr.)
Sir. Lord, without noticing tho interruption, con-
tnued argue that the only thing to DO determined
whether u reasonable necessity existed for such q
Claim.
The papers in the then handed to the Sur
rogatc reserved his decision, and The court was