Opinion of the Court, per RAPALLO, J. remainder after the execution of the trusts created by the will, would have had vested legal estates in remainder in the land, subject to be defeated only by the execution of the power of sale contained in the will. In the present case the effect of the conveyance to the executrix was to make the land in her hands take the place of the mortgage, as personal estate; and she was liable to account for it as such. The conveyance had the same effect as if it had been made to her in her individual name. She had full power of disposition of the property and although she was liable to account for its proceeds to those interested in the estate, and in that sense she held it as trustee, the trust under which she held it was one created by law, and not by the will of the testator. That will never operated directly upon it. It did not belong to the testator when the will took effect, and the beneficiaries under the will never acquired any direct estate or interest whatever, legal or equitable, in the property as land. They only had the right to require the executors to account for it as for any other item of personal estate in her hands as executrix. The entire legal title was vested in her and she represented the equitable interests of those who were thus entitled to call her to account. That land bought in by executors on a foreclosure of a mortgage belonging to the estate is to be treated as personal property, which the executors may sell, and for which they are accountable as such, has been frequently decided, and it is immaterial whether the deed is taken in the names of the executors as such or in their individual names. (Clark v. Clark, 8 Paige, 152; Schoonmaker v. Van Wyck, 31 Barb. 457; Valentine v. Belden, 20 Hun, 537; Cook v. Ryan, 29 id. 249.) In all these cases land thus purchased by an executor or administrator is regarded as a substitute for the mortgage foreclosed and takes its place for all purposes as between the executor or administrator and the parties interested in the estate. It is not treated as land belonging to the testator. His heirs or devisees take no direct interest in it and cannot dispute the title of a purchaser from the executor, though no power of sale be contained in the will. The heirs of an intestate cannot Opinion of the Court, per RAPALLO, J. question the title of a purchaser from his administrator who has purchased land under such circumstances. (Long v. O'Fallon, 19 How. [U. S.], 116; Williams on Executors, p. 650, note d.) The fallacy of the argument on the part of the defendant consists in assuming that the property became subject to the trusts and estates created by the will. As to real estate of which the testator died seized, those trusts and limitations took effect directly, but as to the personal estate the case is different. The title to personalty vests in the executors, as such, by operation of law, and their title as executors is paramount to that as trustees. Trustees can take personalty only through the executors. Trustees, even when they are the same persons as the executors, take only as legatees. (Newcomb v. Williams, 9 Metc. 525.) The interests of the beneficiaries under the will of Raynor never attached directly to the property now in question. They never had any interest in it as land. It was personalty when the testator died, and so far as their rights are concerned it still remained personalty in the hands of the executrix, as executrix, when the plaintiff foreclosed his mortgage. If upon a sale under the plaintiff's mortgage there had been a surplus, the children or grandchildren of Raynor would have had no standing in court at any time, however remote, to claim any part of such surplus. The execu tors or administrators of Mr. Raynor were the only parties who could intervene for that purpose, and the plaintiff's foreclosure, to which they were parties, by barring their rights clearly protected the purchaser, under that foreclosure, against the claims of all those to whom the executors of Raynor were equitably accountable and whose rights depended upon theirs. The order of the General Term should be reversed, and the judgment rendered at Special Term should be affirmed, without costs to either party. All concur. Order reversed, and judgment affirmed. Statement of case. MARY JANE PECK, Executrix, etc., Appellant, v. PATRICK Under the act of 1880 (Chap. 36, Laws of 1880), authorizing a comparison The act, however, does not authorize the admission in evidence of writings other than those of the person whose signature is in question. Accordingly held, that the exclusion of specimens of the handwriting of a person who, it was claimed, had forged the signature in question, was proper. In proceedings before a surrogate for the probate of a will which is contested, a judgment-roll in an action between the parties, wherein was involved and determined questions of law and fact arising in the proceedings, is competent evidence. (Argued January 24, 1884; decided February 26, 1884.) APPEAL from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made at the March terin, 1882, which affirmed a decree of the surrogate of the county of New York, admitting to probate the will of Gertrude B. Callaghan, deceased. The facts, so far as material, appear in the opinion. Matthew Hale for appellant. The court erred in admitting in evidence various papers which were irrelevant to the matters in dispute, as standards with which to compare the signature to the will, and in admitting the evidence of alleged experts comparing the signatures with such "standards." (Com. v. Eastman, 1 Cush. 189, 217; Masten v. Maguire, 7 Gray, 177; Bacon v. Williams, 13 id. 525.) Luther R. Marsh for respondent. The questions as to whether the will was executed under fear, compulsion or undue SICKELS VOL. L. 10 Opinion of the Court, per RUGER, Ch. J. influence, or whether the signature of the testatrix was forged, were questions of fact, and having been passed upon by the surrogate, and his decision affirmed, they were not reviewable. (Code, § 1337; Matter of Rose, 87 N. Y. 514; Davis v. Clark, id. 623; Snyder v. Sherman, 88 id. 656; Marx v. McGlynn, id. 357.) RUGER, Ch. J. An examination of the evidence in this case discloses that the only objections made to the probate of the will of Gertrude B. Callaghan, viz.: First, that it was not executed by her as, and for her last will and testament, and, second, that it was executed under fear, compulsion, or undue influence of her husband, the proponent herein, were founded exclusively either upon circumstantial evidence or the opinion of experts as to the genuineness of the signature to the will in question. There is but little evidence as to the character or value of the property affected by its provisions, except that which shows that the decedent died possessed of no real estate. Under the statutes of distribution in force at the time of the death of Mrs. Callaghan it would seem that the proponent, in the absence of any will, would be entitled to all of the property possessed by his wife upon her death. It would follow from this fact that the proponent could have no object, and there could exist no motive to induce him to commit the crime of forgery, or to use any means by way of compulsion, fear or undue influence, to obtain from his wife a devise of her property to himself. Certainly we cannot, in the absence of any proof of motive on the part of the proponent, reverse, upon evidence so inconclusive and uncertain as exists in this case, the findings of the court below, establishing the valid execution by the decedent of the will in question. The appellant, on the hearing, objected to the introduction of specimens of the handwriting of the decedent, offered for the purpose of enabling experts to give their opinions as to the genuineness of her signature to the will by comparison with such specimens, and excepted to the decision of the surrogate admitting such evidence. Opinion of the Court, per RUGER, Ch. J. We think the evidence was proper under chapter 36 of the Laws of 1880. This act was evidently intended to enlarge the rules of evidence and extend the facilities for testing the handwriting of a party, the genuineness of whose signature was disputed, beyond the opportunities afforded by the then existing rules. It was theretofore competent to give the evidence of experts as to the genuineness of handwriting by comparison with other specimens of the party's handwriting, which had been admitted in evidence for other lawful purposes on the trial; but it had not been competent to introduce such specimens for the sole purpose of comparison. (Miles v. Loomis, 75 N. Y. 288; 31 Am. Rep. 470.) The evils apprehended from the introduction of such evidence have been stated to be, first: The selection of unfair specimens of the handwriting which is in dispute, by the party offering them in proof, and second: The embarrassments arising from the multiplication of issues over the genuineness of the various signatures which might be offered in evidence. (Miles v. Loomis, supra.) The act in question leaves the character, number and sufficiency of identification of the specimens offered in evidence for the purposes of comparison entirely to the discretion of the court, and thus attempts to obviate the objections formerly existing to this species of evidence. The language of the act, however, which permits the introduction of specimens of a person's handwriting, for the purpose of comparison, when proved to the satisfaction of the court, authorizes only the admission of such writings as purport to be the handwriting of the person, the genuineness of whose signature is disputed. The disputed writing referred to in the statute relates only to the instrument which is the subject of controversy in the action, and the specimens of handwriting admissible thereunder are those of the person purporting to have executed the instrument in controversy. Any other construction would place it within the power of a contestant to introduce in evidence specimens of the handwriting of as many |