author: Roger, Oh. J,

text:
    People ex rel. Superintendents of the Poor of the Town of Oswegatchie v. Board of Supervisors of St. Lawrence County.

      (Court of Appeals,

      Filed November 30, 1886.)

    1. Poor and poor laws—Town and county poor—Board of Supervisors MAY ABOLISH OR REVIVE DISTINCTION BETWEEN—2 R. S., 930.
    By the general laws of the state, boards of supervisors have power at will to abolish or revive the distinction existing in their counties between town and county poor.
    2. Same—Power to make support of the poor of the county a COUNTY CHARGE—3 R. S. (7th ED.), 1858, § 24.
    They also had power to abolish such distinction, and make the support of all the poor of the county a county charge.
    3. Same—Livingston county act—Laws of 1845, chap. 384.
    The “ Livingston County Act,” Laws of 1845, chapter 334, makes all temporary relief afforded to paupers in that county a charge upon the several towns in which said paupers reside.
    4. Same—Power of boards of supervisors to adopt—Laws of 1846» chap. 245.
    By Laws of 1846, chapter 245, the boards of supervisors of any county in the state are authorized to adopt the provisions of the "Livingston County Act,” and extend and apply the same to their county
    5. Same—Laws of 1882, chap. 28, § 1.
    Laws of 1883, chapter 28, section 1, provide: “ The town of Oswegatchie shall hereafter he subject to taxation for the support and maintenance of the town poor of or in the other towns of the county of St. Lawrence, nor shall the other towns of the county of St. Lawrence he taxed or required to contribute to the support of the town poor of or in the town of Oswegatchie; hut such town of Oswegatchie, for the purpose of supporting its poor within its limits, and carrying into effect the laws of the state, shall be a separate and distinct district.” By the act nothing therein contained is to he construed to require or compel the town of Oswegatchie to support any county or state paupers, nor as exempting or relieving the town of Oswegatchie from paying its full share of the expense of supporting the county or state poor. Held,, 'that the act merely gave the form of an especial s:atute to rights and liabilities already existing and in force under the general laws of the state, and that the action of the hoard of supervisors of St. Lawrence county in adopting the Livingston county act was not contrary to the provisions of the act.
    6. Statutes—Implied repeal of, not favored by the law—Must be construed so as to harmonize.
    The general policy of the law is adverse to repeal by implication, and special rules of interpretation require the provisions of different statutes to he so construed as to harmonize and avoid conflict, unless the plain meaning of the language is thereby violated.
    Appeal from a judgment granting a mandamus to the superintendents of the poor for the town of Oswegatchie, to compel the board of supervisors of St. Lawrence county to audit and allow an account for expenses incurred in the support of county paupers.
    D. O’Brien, attorney general, for relator, resp’t; Leslie W. Bussell, for app’lts.

       Reversing 36 Hun., 647, mem.

   Roger, Oh. J,

The hearing of the application in question was had upon affidavits furnished by the relators, containing a statement of the facts upon which the relief was claimed. These statements were not traversed by the defendants, and by proceeding to a hearing without doing so they admitted their truth. The course pursued was equivalent to a demurrer on the part of defendants, and it can succeed only by showing that upon the facts stated the relator was not in law entitled to the relief demanded.

The affidavits allege that the distinction between town and county poor at the time the transactions in question occurred existed in St. Lawrence county, and that the superintendents of the poor of the town of Oswegatchie had necessarily expended for out-door relief in the temporary support of county paupers a certain sum of money. That an itemized account of such expenditures duly verified was made out by the relators, and presented to the defendants at their annual session in 1884, with a'request that the same be audited and allowed. That said board of supervisors refused to audit or allow said account or any part thereof, on the ground that through its action in 1883 it had. adopted the Livingston county act, and that by the alleged adoption of said act, the said corporation could not make a legal charge against the county of St. Lawrence for out-door relief for county paupers.” The statement thus made was equivalent to a denial by the defendants of the allegation of the relator, that the distinction between county and town poor existed in said county, and formed an issue of law on that question.

It is not denied but that the action of the board of supervisors in adopting the Livingston county act, if legal, abolished the distinction between town and county poor with reference to temporary relief in St. Lawrence county, and the question is whether such board had power to adopt it.

It is claimed by the respondent that the enactment of chapter 28 of the Laws of 1882, making the town of Oswegatchie a separate and distinct poor district, operated as =a repeal of the privilege extended by chapter 245, Laws of 1846, to the supervisors of that county to adopt the Livingston county act. This claim is based upon the theory that there is such a repugnancy between that act and chapter 28 of the Laws of 1882, that they cannot both be executed and administered, and that it must be inferred therefrom that the legislature intended to repeal the privilege conferred upon boards of supervisors by the Laws of 1846, to adopt the provisions of a hostile and repugnant act.

Upon a careful examination of the several acts referred to, and of the provisions of the Revised Statutes relating thereto, we have been unable to see any such repugnance between those acts as is claimed to exist.

By the general law of the state, boards of supervisors have power at will to abolish or revive the distinction existing in their counties between town and county poor. 2 R. S. (7th ed.), 930. They also had power to abolish such distinction, and make the support of all the poor of the county a county charge. 3 R. S. (7th ed.), 1858, § 24.

By chapter 334, of the Laws of 1845, commonly called the Livingston act, all the temporary relief afforded to paupers in that county was made a charge upon the several towns in which, said paupers resided. By chapter 245, of the Laws of 1846, the boards of supervisors of any county in the state were authorized to adopt the provisions of this act, and extend and apply the same to the respective counties. The board of supervisors of St. Lawrence county did in 1883, and presumably before any of the transactions in the litigation occurred, by resolution adopt the provisions of said Livingston county act. The necessary effect of this action, if duly authorized, was to make such temporary relief as might be extended to paupers in the several towns of St. Lawrence county, by the authorities thereof, a town charge.

We are of the opinion, however, if the adoption of the act in question conflicted with or was repugnant to the provisions of chapter 28 of the Laws of 1882, that the board of supervisors had no legal power to accept the privilege accorded by the act of 1846. It cannot be supposed that the legislature provided a law to regulate the relations existing between a county and its several towns with respect to the support of the poor and then left it optional with either of said parties .to nullify the legislative will at its pleasure.

The only affirmative provision in the law of 1882 defining the liabilities of the respective towns in the county of St. Lawrence, and of the county for the support of the poor, is contained in the first section of the act reading as follows: “The town of Oswegatchie shall not hereafter be subject to taxation for the support or maintenance of the town poor of or in the other towns of the county of St. Lawrence, nor shall the other towns of the county of St. Lawrence be taxed or required to contribute to the support •of the town poor of or in the town of Oswegatchie, but such town of Oswegatchie for all the purposes of supporting its poor within its limits, and carrying into effect the laws of the state, shall be separate and in distinct districts.” It will be observed that no reference is here made to county poor, and the whole force of the enactment is directed to the rights and liabilities of the several towns in respect to town poor. The act then proceeds, and, among other things, provides that five persons named shall constitute a corporation under the name of “The Superintendents of _the poor of the town of Oswegatchie,” for the purpose of administering the poor laws in such town. They are to have the sole and exclusive care and management of the poor in such town, and are required to provide for and maintain such, persons in the manner mentioned in such act; and for that- purpose are invested with all of the powers and authority now vested by law in overseers of the poor- of towns, and in superintendents of the poor of counties, not inconsistent with the provisions of this act. They are required to visit the poor at their residences, to inquire into their circumstances and ability to support themselves, and, in their discretion, to direct either permanent or temporary relief for such persons. - They are also authorized to “so contract for, purchase, and provide provisions, fuel, clothing and other necessaries for the support of or distribution among the poor as in their judgment they may deem necessary.” It was further provided “that nothing in this act shall be-construed as to require or compel the town of Oswegatchie to support any county pauper or state pauper. Neither shall it be construed as exempting or relieving the town of Oswegatchie from paying its full share of the expense of supporting the county or state poor.”

It is not claimed that this act established any new rule for the support of town ¡poor in the several towns of St. Lawrence county, and it is evident that it merely gave the form of an especial statute to rights and liabilities already existing and in force under the general laws of the state. The act expressly disclaimed any intention to interfere thereby with or affect the several liabilities of the parties in respect to the temporary support of county paupers in such county, and left such liabilities, as they before existed, subject to the general powers conferred upon boards of supervisors to regulate the subject. As- we have seen,, such boards had the power to abolish or revive such distinctions, or to make' the temporary support of all paupers a county charge, or, as by the Livingston county act, altogether a town charge. By the adoption of the Livingston county act the board of supervisors have simply added to the responsibilities of the several towns of the county by imposing upon them, respectively, the duty of extending temporary relief to such county paupers as might be within their several jurisdictions needing support. It is the duty primarily of the local authorities to provide for and support all of the poor within their jurisdiction, and the only effect of a law abolishing the distinction between town and county paupers is to deprive the town of the right of reimbursement from the county for such expenses where the Livingston county rule prevails. While this act changed the existing law as to the temporary support of county paupers in the town of Oswegatchie, it did the same thing in all of the other towns in the county; and, if thereby the responsibilities of the town of Oswegatchie were increased in respect to the support of county poor in its jurisdiction, they were thereby relieved from liability for such expenses incurred in the other towns of the county.

It seems to us that the board of supervisors had an undoubted right to make these provisions. The general policy of the law is adverse to repeals by implication, and special rules of interpretation require the provisions of different statutes to be so construed as to harmonize and avoid conflict, unless the plain meaning of the language is thereby violated. We can, however, see nothing in the act of 1882 which, either expressly or by reasonable implication, conflicts with the possession of the power exercised on the part of the supervisors. There is nothing in the act expressly restricting the powers of the board of supervisors in this respect, and we can see no evidence in the act of an intention on the part of the legislature so to do. The town of Oswegatchie is, except so far as it'is exempted from their control by the act of 1882, subject to the provisions of the general statutes of the state in respect to the support of its county poor, and can claim no independence therefrom unless by virtue of some special provision of law. We find none such in the act of 1882.

The orders of the general and special terms should therefore be reversed, and the application for a mandamus denied, with costs. 1

All concur.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Isaac N. Phelps et al., Appl’ts, v. Robert B. Boland, Resp’t.

      (Court of Appeals,

      Filed November 23, 1886.)

    1. Principal and surety—Bills and notes—What action op the HOLDER OP A BILL OP EXCHANGE RELIEVES THE DRAWER
    The defendant, a citizen of this country, drew a bill of exchange to his own order, at sixty days sight upon J. & Co., who were English merchants residing in Liverpool. Defendant sold it to the plaintiffs, who were American bankers residing in New York. The bill was accepted by J. & Co., payable in London. The bill was protested for non-payment at maturity, and J. & Co. having failed, were discharged in bankruptcy upon a compromise by the English courts, the plaintiffs, who were originally not parties to the proceedings, became so voluntarily afterwards, proved their claim and accepted the composition decreed whereby J. & Co. were wholly discharged, and defendant’s right of subrogation was rendered valueless, held, that plaintiffs’ having by their own voluntary act released J. & Co. from ail remaining liability, his surety, the defendant, was discharged.
    2. Same—Bankruptcy—Effect of Foreign Discharge.
    The foreign discharge in bankruptcy, if the plaintiff had not become a party, would have been, in and of itself, no defense to the American holder of the bill; if property of the bankrupt should be found in our jurisdiction, the plaintiff would have been at liberty to proceed against it by attachment, the only force of the discharge in our jurisdiction is from our consent, and that has been thus limited.
    8. Same—When the discharge in one state bars rights of creditors IN ANOTHER.
    As between the states of the union, a discharge in bankruptcy by the law of one, will not bar the right of a creditor who is a citizen of another, and not a party to the proceeding.
    Appeal from an order of the supreme court, general term, first department, overruling the exceptions taken by plaintiff, and directing a judgment on the verdict ordered for defendant in the circuit court.

      Thomas TI. Hubbard, -for app’lts; Frank D. Sturges, with Owen & Gray, for resp’dt.

       Affirming 30 Hun, 362.

   Finch, J.

The defendant, a citizen of this country, drew a bill of exchange to his own order at sixty days’ sight upon Johnston & Co., who were English merchants residing in Liverpool. The defendants sold it to the plaintiffs, who were American bankers residing in New York.

The bill was duly accepted by Johnston & Co., payable in London, who thereby, as to the plaintiffs, became the principal debtors, the. drawer’ being contingently liable upon their default and holding the position of a surety for the payment of their debt. The bill was protested for nonpayment at its maturity, Johnston & Co. having failed and being unable to meet their liabilities ; and the holders now sue the drawer to recover its amount.

The latter defends upon the ground that as surety he was entitled, upon payment of the bill, to be subrogated to the rights of the holder, and that the latter had so destroyed or materially impaired those rights as to have lost all remedy against the drawer.

The fact relied on as the cause and basis of this result is that the acceptors were discharged in bankruptcy upon a compromise by the English courts, and that the plaintiffs, who were originally not parties to the proceeding, became so afterward voluntarily, and proved their claim and accepted the composition decreed ; whereby the judgment became binding upon them in this country as well as in England, and so the acceptor was wholly discharged and right of subrogation as surety rendered valueless.

The answer made to this contention is that" the foreign discharge in bankruptcy was operative against the alders in this country, even though they had never become parties to the proceeding, and so the release of the acceptor flowed from no acts of theirs, and consequently they had not invaded or affected the drawer’s rights.

The authority pressed upon our attention, and which we are asked to follow, is that of May v. Breed (7 Cush., 1 5). The deserved reputation of the court and the great ability of its reasoning may well make us hesitate and reflect before adopting a contrary conclusion; but, deeming the question substantially settled, both in our own state and in the federal courts, adversely to the opinion cited, we feel it our duty to acquiesce in that result.

Two propositions are conceded on all sides : that the title of a foreign assignee, conferred by the foreign bankrupt law, may be asserted in our courts, but cannot operate or be effectual as against our own citizens pursuing their remedies as creditors against the bankrupt or his property within our jurisdiction, or when the recognition of such title is against our public policy, is conceded in May v. Breed, and has quite recently been decided by us. In re Waite, 99 N. Y., 433.

And that, as between the states of the Union, a discharge by the law of one will not bar the right of a creditor who is the citizen of another, and not a party to the proceeding, is equally well settled by a substantial concurrence of authority.

The argument of the learned chief justice in the Massachusetts case is largely occupied with an effort to show that these two propositions do not decide the case of a discharge by the foreign court of a debt or obligation contracted under the law of its jurisdiction and to be there paid and discharged.

It is asserted that the cases between citizens of different states in our own country rest, not upon doctrines of international law, but upon provisions of the Federal Constitution and governmental relations peculiar to our national organization.

The most important and authoritative of these is Ogden v. Saunders (12 Wheaton, 217); and it is subjected to the double criticism that it did not in all respects reflect the opinion of the court, and that it decided no question of international law.

The first suggestion was fully and finally answered in Baldwin v. Hale (1 Wallace, 223), where the authority assailed was vindicated, and its doctrine expressly ratified and affirmed.

The second suggestion seems to us not sustained by a, careful reading of the case. The question before the court was stated to be “whether a discharge of a debtor under a state insolvent law would be valid against a creditor and citizen of another state who has never voluntarily subjected himself to the state laws otherwise than by the. origin of his contract,” and was argued in two forms: first, as a question of international law; and, second, under the federal constitution.

Upon the first branch of the argument the English rule was admitted to be that “The assignment of the bankrupt’s effects under a law of the country of the contract should carry the interest in his debts wherever his debtor may reside;” and then it was declared to be “perfectly clear that in the United States a different doctrine has been established; and since the power to discharge the bankrupt is asserted on the. same principle with the power to assign his debts, that the departure from it in the one instance carries with it a negation of the principle altogether.” At a later stage of the opinion attention is called to the circumstance that the discharge is always and necessarily an adjudication of a court, and depends wholly upon the operative force of that adjudication; and that neither comity nor justice requires that we shall hold one of our own citizens bound by a' judgment of a foreign court, to which he was-not a party, could not be compelled to be a party, and of which he might have had no notice.

I have less hesitancy in thus asserting the error of May v. Breed in construing the decision of the federal court as standing outside of international law, and so not authority in a case like this, because I observe that Mr. Rcdfield, in editing a new edition of Story on the Conflict of Laws, has deemed it .necessary to criticise his author’s assertion of the same error (section 341, a); and more especially because the supreme court itself in the later case of Baldwin v. Hale (supra) put its decision mainly upon a ground not peculiar to our federal relations, but upon the effect of a foreign judgment.

This last case, also referring to the Massachusetts doctrine, “that if the contract was to be performed in the state where the discharge was obtained, it was a good defense to an action on the contract, although the plaintiff was a citizen of another state and had not in any manner become a party to the proceedings,” expressly repudiated the conclusion, saying that, “irrespective of authority, it would be difficult if not impossible to sanction that doctrine.”

In our own state two cases have been decided in substantial accord with the ruling of the federal court: Gardner v. Oliver Lee & Co.’s Bank, 11 Barb., 558 ; In re Waite, supra. The latter case stated the general rule, without grafting upon it any exception founded upon the origin of the contract.

We are content to follow these authorities without entering into the wide and difficult discussion in which they culminated. It follows, therefore, in the present case that the foreign discharge would have been, in and of itself, no defense to the American holder of the bill.

If property of the bankrupt should be found in our jurisdiction, the plaintiffs were at liberty to proceed against it by attachment and collect their debt out of such property; and the foreign bankruptcy proceedings would neither prevent nor stand in the way, for 'the sufficient reason that their only force in our jurisdiction comes from our consent; and we have chosen thus to limit that consent.

This right remaining to the plaintiffs was a valuable right. It charged with the payment of the protested bill any present or future acquisitions of the acceptors which might come into our jurisdiction, and might result in the collection of the whole debt or a compromise settlement induced by the desire or interest of the debtors to have access to our markets and freedom to resume their business among us. _ To that right, thus valuable and material, it was the privilege of the surety to succeed by way of subrogation, whenever he should pay the debt; and the plaintiffs could not deprive him of it or impair and destroy it, except at the peril of releasing him from his liability.

Just that was what the plaintiffs did. Tempted by the compromise offered, they sought to obtain the defendant’s consent to its acceptance by him. That consent he withheld, but they, acting upon their own conceptions of what was most for their interest, voluntarily submitted themselves and their rights as creditors to the foreign jurisdiction, proved their debt and accepted the compromise decreed. The condition of the dividend was a release of the debtor. They could not take the compromise and avoid the condition; and so by their act they discharged the acceptors entirely and everywhere.

That such is the effect of their voluntary submission to the foreign jurisdiction is inevitable on principle and has been often decided. Gardner v. Oliver Lee & Co.’s Bank, supra; Clay v. Smith, 3 Pet. 411. The unavoidable consequence follows. The creditor having, by his own voluntary act, released the debtor from all remaining liability, his surety is discharged. The courts below so held, and we think correctly.

But another suggestion has arisen among us, original with the court, and not at all urged in the brief of counsel, prepared with great" thoroughness and ability. That suggestion is that Roland consented to the acceptance of the dividend by plaintiffs, and so lost the right to complain;, and the evidence on which this is founded is said to exist in two letters which passed between the parties. It is not ■pretended that plaintiffs’ letter asks Boland’s consent to their acceptance óf the dividend, or that he, in terms, gave that consent, but such consent, not directly asked or given, is sought to be inferred from what was written. The letters are but the declarations of the parties bearing on the issue, and none the less so because they happen to be in writing. The proper inferences to be drawn from them were questions of fact more or less affected by the other evidence in the case. Whether, from the language used, Roland meant to give his consent and waive his rights, or plaintiffs understood him to consent, and acted upon that understanding, or without it, were certainly inquiries for the jury, and not for the court. But neither party asked to go to the jury upon any question of fact, and each, by asking judgment in his own favor, waived any possible question of fact, and conceded that only questions of law were involved. Were this otherwise, the result would not be changed. As I have said, plaintiffs did not ask Boland’s consent to their proving their own claim. On the contrary, they asked him to prove his, in order that they might not be compelled to prove theirs. The plain meaning was: We ask you to prove yours. If you decline, we shall prove ours, at all events. To this request, the only one made, Roland returns a refusal. That it is politely said in the phrase addressed to the counsel, “I would much prefer that your clients adopt some other course for securing to themselves dividends,” means only, in connection with their explicit avowal, “do it yourselves, if you choose to do it at all;” and then, as if fearing the very misconstruction now suggested, he adds : “I think, upon the whole, it may be better to leave the matter as it stands at present, rather than complicate it by assuming to be bailee of any funds they may claim as theirs. I do not aspire to the position.” Unquestionably his meaning is, “It is best that neither of us touch this dividend, and I, at least, refuse.” Language must be tortured to make this a consent, and a waiver of the surety’s rights.

The judgment should be affirmed, with costs.

All concur, except Earl, J., dissenting, and Ruger, C. J., not voting.


author: Danforth, J.

text:
      In re application of Robert B. Gardner, Adm’r, etc.

      (Court of Appeals,

      Filed November 23, 1886.)

    1. Statute op limitations—Right op action on contract obligation— When barred.
    The effect of the statute of limitations is to prevent one who neglects to enforce his right of action upon a contract obligation or liability, whether express or implied, from doing so after the expiration of six years from the time the cause of action accrued.

      2. Same—General hiring—Payment not postponed until end op service.
    Where there is no express agreement as to the time or measure of compensation for services, nor any evidence of usage in respect thereto, the engagement will be taken as a general hiring, but the law will not imply an agreement that compensation shall be postponed until the termination of the employment, and recovery can only be had for six years prior to-the commencement of the action.
    3. Same—Mutual open accounts—When not barred.
    In cases when there are open mutual accounts between the parties, if the last item is within six years it draws items beyond that period.
    Appeal from judgment of supreme court affirming order of the surrogate of Tompkins county, denying the application of an administrator for leave to sell real estate to pay the debts of his intestate.

      H. V. Howland and George E. Goodin, for appl’t; William D. Tuttle, for respd’t.
   Danforth, J.

The only claim which justified the appliwas one presented in favor of Lucy 0. Gardner, a. sister of the deceased, for house-keeping or housework \ and in regard to that the surrogate found that the claimant began to perform valuable services for her brother, at his request and as his servant, on or about November 1, 1843, and continued to perform such services until his-death, on or about November 1, 1882, a period of 39 years ; that they were worth a certain sum per week, varying in amount in different years; and that, to apply on “those services, the deceased paid the claimant two dollars in the spring of 1879, and thirty dollars in the fall of that year “and that he had paid her a little money occasionally,” —-“every few years some,”—but that “the particular times or amounts of such payments were not stated or shown and holding, as matter of law, that the statute of limitations precluded a recovery for any service rendered more than six years before the payment made in the spring of 1879, he gave judgment for the residue only, viz., for services rendered during six years prior to April 1, 1879, and from that time to the death of the deceased—in all, nine years.

In cases of this character there is often great difficulty in getting at the truth, so as to adjust fairly the rights of both parties. But here every question has been settled to their satisfaction excepting that relating to the application of the statute of limitations. The effect of that statute is to prevent one who neglects to enforce his right of action upon a contract .obligation or liability, whether -express or implied, from doing so after the expiration of- six years from the time the cause of action accrued. Here there was no express agreement as to the time or measure of compensation, nor any evidence of usage in respect thereto, and I am unable to find any circumstance to distinguish the claimant’s casé from that decided by this court in Davis v. Gorton (16 N. Y., 255), where it was in substance held that a similar indefinite engagement was to be taken as a general hiring ; but that the law would not imply an agreement that compensation should be postponed until the termination of the employment, and a judgment which had been rendered on the opposite theory was reversed. It did not appear in that case that any payments had been made; but in Gilbert v. Comstock (93 N. Y., 484), that fact was in evidence, and an allowance for six years prior thereto was justified. That circumstance was present in the case at bar, and the same effect has been given to it. We think the claimant can require nothing more.

In Smith v. Velie (60 N. Y , 106), on which the appellant relies, there were . open mutual accounts between the parties, and, while that condition of things continued, the statute was no bar ; for, in such a case, if the last item is within six years, it draws after it items beyond, that period. In the absence of an express agreement as to time of payment, the law will, no doubt, presume that the parties contracted in reference to the usage prevailing in respect thereto in that kind of employment, and, when shown, it would be taken into account; but here, as before suggested, none is proven. The witnesses, indeed, estimate the value of the services at a certain sum per week, and such is the finding of the referee, and from that it might perhaps be inferred that weekly payments were usual in such cases ; but, however that may be, both reason and authority repel the implication that, under such a general contract as the present, payment was intended to be delayed until the end of service.

We think, therefore, that the appeal fails, and the judgment should be affirmed. ■

All concur.

       Affirming 35 Hun, 663 mem.


author: Miller, J.

text:
    Frances J. Byrnes et al., Respd’ts, v. Benjamin M. Stillwell and wife et al., App’lts.

      (Court of Appeals,

      Filed November 23, 1886.)

    1. Will—Construction—Remainder—When vested.
    Where a clause of a will devises certain land to testator’s daughter during her life, and then provides for the child or children of his daughter, and his or their lawful heirs forever, if more than one, share and share alike, after the life estate first given has terminated; and. in case of the death of any of his daughter’s children leaving a lawful child or children surviving, such child or children to take the share or portion which the parent would have been entitled to if living, and no provision is made by the will, in case of the death of any child or children of his daughter before the termination of the life-estate of the mother. Held, that the devise was a remainder in fee to children of the testator’s daughter, subject to open and let in children born after his death, as tenants in common, and as contradistinguished -from joint tenants. That such a vested estate in the land was alienable or devisable by them, or descendible from them.
    3. Same—When a subsequent clause will limit prior devise op estate IN PEE.
    An estate in fee created by a will cannot be cut down or limited by a subsequent clause, unless it is as clear and decisive as the language of the clause which devises the estate.
    3. Same—Vesting op estates favored.
    The courts will always give such a construction to a will as will tend to best provide for descendants or posterity, and will prevent the disinheritance of remainder-men who may happen to die before the termination of the precedent estate.
    Appeal from a judgment of the supreme court, general term, first department, affirming an interlocutory judgment of the special term and denying a motion for a new trial made at the general term in the first instance; and, also from a judgment affirming a final judgment of the special term in a suit for partition.

      Benjamin M. Stillwell, for app’lts; Daniel I Waldin, for resp’ts

       Modifying 38 Hun, 53

   Miller, J.

The question arising in this case depends upon the construction to be placed upon the provisions contained in the last will and testament of John W. Gilbert, deceased, which provisions, so far as material, are as follows: “I give, devise and bequeath unto my daughter Maria, the wife of John Wood, for and during, and for the full end and term of her natural fife, my two lots of ground situate, lying and being in the second—late third—ward of the city of New York. * * * And from and immediately after the decease of my said daughter Maria, I give, devise and bequeath the last aforesaid two lots of ground, houses, buildings and premises * * * so as aforesaid given unto my said daughter Maria, during her natural life, unto the lawful child or children of my said daughter, his or her or their heirs forever; if more than one, share and share alike, as tenants in common; and in case any or either of the children of my said daughter Maria, at the time of her death, be dead leaving a lawful child or children him or her surviving, such child or children shall take the share or portion which his, her or their' parent would have been entitled to if living, to have and hold to him, her or them, and their heirs forever.

The will was executed on the 13th day of February, 182f, and the testator died in or about 1828.

The devisee, Maria, at the time of the testator’s .death, was the mother of six children. Another child was bom to her during the life-time of her then husband, and after the death of the testator. In 1830 her husband died, and in 1834 she intermarried with William Mulock, by whom she had four children. In May, 1882, she departed this life, and left her surviving eight children, three who were living at the time of the testator’s death having died without issue before her death.

The question we are called upon to determine is whether either of the three children who were living at the death of- the testator, but who died during the life-time of their móther, without leaving issue, took, under the provisions of this will, such a vested estate in the lands as was alien■able or devisable by them, or descendible from them.

The learned judge, at special term, found that they did not; and that tíre remainder which, upon the death of the testator, vested in these children of his daughter Maria, was subject to be, and was, divested by their death before their mother, without issue, and this judgment was affirmed •by the general term. The intention of the testator, which is to be derived from the language employed in the will itself, which 'is to be interpreted in the light of the surrounding circumstances, is the controlling element in the construction of wills, and, so far as cart be ascertained in accordance with the rule stated, should be taken into consideration and carried into effect.

The clause in the will cited, devises the lands in question to his daughter during her life; it then provides for the child or children of his daughter, and his, her or their law- ■ fui heirs forever, if more than one, share and share alike, after the life estate first given has terminated;, and in case of the death of any of his daughter’s children leaving a lawful child or children surviving, such child or children to take the share or portion which the parent would have been entitled to if living. No provision is made by the will in case of the death of any child or children of his daughter before the termination of the Hfe-estate of the mother.

It is apparent that the devise in question was a remainder in fee to the children of the testator’s daughter, subject to open and let in children bom after his death, and for that reason the five children born to his daughter after his death each became entitled to a share of this remainder. Whether such remainder could be enlarged by the death of any of the remainder-men without issue is a serious question, which is not free from difficulty. It will be observed that no words of survivorship are contained in the will, either in the main devise, or in the subsequent clause, which indicate an intention of the testator that the surviving brothers and sisters were to take in the. event of the death of any of his daughter’s children without issue. There are no words to that effect in the devise in question, and the existence of any such intention cannot, we think, be derived as a matter of inference from the language employed in the will. After the death of the daughter, the devisa is to her child or children, and his, her, or their heirs forever, and, if more than one, share and share alike, as tenants in common; and if the intention of the testator was to restrict or limit the shares devised to his daughter’s children so that, in the event of any of them dying in the life-time of their mother, his or her share should not pass to the heirs at law, but' to the survivor, he'clearly would not have added these words of inheritance, and would have used appropriate language for that purpose. The language employed, as well as the omission to use words of a different import, indicate the intention of the testator that each of the children named should take an absolute fee, subject to be diminished by the birth of other children, as tenants in common, and as contradistinguished from joint tenants.

The use of the words “if living,” in the additional clause of the will, did not, we think, refer to the time of the death of the daughter, and to the children then living, or indicate an intention that in case any of the children died during the mother’s life without issue, that the number of shares should be limited to those who survived their mother. Such á construction would be in direct contradiction of the previous language employed in the principal devise, and cannot be maintained, in the absence of any words which convey such an intention. It may be remarked that the words cited are not connected with, and do not constitute, a part of the principal devise to the children of the testator’s daughter, and manifestly were not intended to limit the shares which the daughter’s children, if living at the testator’s death or afterwards born, were to take under .he will, but had special reference to the share or shares which the issue of her deceased children were to take in case any of his daughter’s children had died leaving issue. He had provided for all the others in the first portion of the devise, and it was only the issue of such as might die before the death of his daughter, and whose issue would not take under this devise, for whom he intended to provide. It may also be added that it is of no importance whether the words “if living” relate to the time of the testator’s death or his daughter’s death, inasmuch as none of his daughter’s children died leaving issue either during the testator’s life-time, or during his daughter’s life-time, and therefore the contingency intended to be provided against never happened. For this reason there was no qualification or limitation upon the devise which preceded it.

An estate, in fee, created by a will, cannot be cut down or limited by a subsequent clause, unless it is as clear and decisive as the language of the clause which devises the estate. Thornhill v. Hall, 2 Clark & F., 22; Roseboom v. Roseboom, 81 N. Y., 359; Campbell v. Beaumont, 91 id., 467; Freeman v. Coit, 96 id., 68.

■ The effect of the construction contended for by the counsel for the respondents would be that, in case all the children of the testator’s daughter had died during her lifetime without issue, and there were no survivors, the estate would pass to the collateral heirs. The grandchildren of . the testator would thus be divested of any absolute interest in the estate, by remote kindred. They would take only an unsubstantial estate, and, in case they did not survive their mother, they would be vested with no interest whatever. The law favors the vesting of estates, and courts will always give such a construction to a will as will tend to best provide for descendants or posterity, and will prevent the disinheritance of remainder-men who may happen to die before the termination of the precedent estate. Moore v. Lyons, 25 Wend., 142; Scott v. Guernsey, 48 N. Y., 106; Low v. Harmony, 72 id., 408.

We are referred by the counsel for the respondents^ to numerous cases which it is claimed sustain the position contended for by him, but none'of them are precisely in point. Those relied upon in this state are clearly distinguishable, as will be noticed upon an examination of the same.

In Nodine v. Greenfield (7 Paige, 544), the devise was to the widow for fife, and then to the children of another person who should be living at her death, and the issue of such as should die, and, in default of such children or issue then living, then over to such person, and, if he were dead, to the testator’s next of kin. It will be seen that the facts differ materially from those presented in the case now considered, and the case is not analogous.

In De Peyster v. Clendining (8 Paige, 294), there was a devise of the life-interest to the wife, then to his children, | and, upon their death, to their issue, and, if either of them died without issue, their shares to go to the survivors. Here is an express provision in favor of the survivors, which makes a marked distinction between the case cited and the one at bar, and renders it entirely inapplicable.

In Kane v. Astor’s Executors (5 Sandf., 469), the devise was to the daughter during life, and then to the surviving issue, thus expressly providing for who survived.

In re Ryder (11 Paige, 185), the devise was to A. for life, remainder to her surviving children, and to the issue of such as should have died leaving issue at her death. Here, also, the survivor is provided for.

In Sheridan v. House (43 N. Y., 4 Keyes, 569), there was a grant to J. for life, and, after his decease, to his heirs forever; and it was held that this vested future estate of each child, though liable to be defeated by the child’s death before that of his father, was, nevertheless, under our statute law devisable, descendible and alienable. This decision sustains the view that the devisees had a vested interest which they could lawfully dispose of, and it does not aid the plaintiffs’ case. If anything, it establishes that the devisees who died had an interest which was vested and transferable and devisable, subject to the conditions provided for in the grant. As the remainder in the case cited was limited to the heirs and assigns for life, before the right is absolute the tenant for life must die to terminate the estate and to ascertain the heirs. The character of heir must be gone before the remainder vests in possession, and hence the remainder may be defeated by the death of any child before his father. In the case at bar, the devise is to the child or children of the life-tenant, thus specifying the character of the devise after the death of the life-tenant and leaving no uncertainty as to who was entitled to the remainder.

In Moore v. Littell (41 N. Y., 66), the devise was to a person named, and after his death to his heirs and assigns forever, and the remarks made concerning the case last cited are applicable.

In Smith v. Scholtz (68 N. Y., 41), the devise was to the grandchildren of the testator with a provision in favor of the survivor and the heirs of such survivor, and it contains nothing adverse to the views we have expressed.

Reliance is also placed on Kelso v. Lorillard (85 N. Y., 177), where the devise was to the husband for life, remainder to a son. if he should five until he became of age and then over. Here is an express provision for defeat of the estate in case of the death of the son before maturity, and the case in no way sustains the rule contended for by the respondent’s counsel.

Some other decisions are referred to which have been examined, but none of them, we think, are in conflict with the views already expressed.

It may be remarked, as to the cases relied upon by the respondent, that in several of them there was an express devise over of the remainder, either to the survivor or to some other person, in case of the death of the first devisee without issue during the life-time of the tenant; or other language which limited the devise of the remainder so that it could only take effect in case of his surviving the fife-tenant. Hone of the cases sustain the position that where there are no words of limitation or survivorship, or of devise over to some other person, in the event of the death of the remainder man without issue during the life estate, his share is to be divested entirely, or become vested in the survivor or any other than the heirs or assigns.

The appellant’s counsel cites several cases to sustain the position that the testator intended that upon his death his daughter should be entitled to and should take a life estate in his land, and that her children who should then be living should at the same time be entitled to and should take a vested remainder in fee in the lands ; if more than one, share and share alike, and as tenants in common, subject, however, to open and let in after-born children to an equal share with them. Wemple v. Fonda, 2 Johns.; 288 ; Doe v. Provost, 4 id., 61; Livingston v. Greene, 52 N. Y., 124; Embury v. Sheldon, 68 id., 233. It is true that the authorities referred to tend strongly to uphold this construction of the testator’s will. While they bear upon the subject they do not, however, precisely cover the point here presented and cannot be regarded, therefore, as entirely conclusive.

The question is a new one and has never been determined in this court. Its solution must, therefore, stand upon the' construction to be placed upon the testator’s will by invoking the rules of law which are applicable to such a case.

It follows that the court below was in error in its conclusion, and the judgment should be modified in accordance with this opinion, with costs to the appellant to be paid out of the proceeds of the sale.

All concur.


author: Earl, J.

text:
    Albert Delafield et al., Individually and as Trustees, Respt’s, v. Richard Delafield, Imp’d, Etc., App’lt.

      (Court of Appeals,

      Filed November 23, 1886.)

    1. Wills—Construction of—Direction to trustees to pat at future time —Property does not vest in beneficiary until division.
    Where by the terms of a will ".here is no gift, but a direction to the executors or trustees to pay, or to divide and pay at a future time, the vesting will not take place until that time arrives.
    2. Same—Where a will directs a division of income the distributees TAKE NOT AS JOINT TENANTS BUT AS CO-TENANTS.
    Where the trustees were directed to make certain dispositions of the annual income, and after these either semi-annually or quarterly to make a dividend of the residue of the income equally between the wife and children of the testator. Held, that it was tlu intention of the testator that his wife and children should take the surplus income, not as a class, not as joint tenants, but distributively as tenants in common.
    8. Same—Death of distributee—In case of, who takes.

      Held, that upon the death of one of the distributees, the share of income which was payable to her during her life did not pass to those surviving, but was undisposed of by the terms of the will, and was devolved upon the appellant under the 1 R. S., 721, § 40. “ When in consequence of a valid limitation of an expectant estate, there shall be a suspension of the power of alienation, or of the ownership, during the continuance of which the_ rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the person presumptively entitled to the next eventual estate,"
    Appeal from a judgment of the general term of the supreme court, first department, affirming a judgment of the special term in favor of plaintiffs.
    This action was brought for the construction of the will of Bichard Delafield, deceased. The will was dated January 17, 1873, and the testator died on the 5th day of November following, leaving a widow then aged seventy-two years, and six children, five daughters and one son, all "unmarried adults and members of his family.
    After several devises and bequests the will contained the following clauses: “All the rest, residue and remainder of my estate, of every description and wheresoever situated, I give, devise and bequeath to my executors and trustees hereinafter named, in trust to apply and manage the same for the benefit, support and comfort of my wife and children in the manner following, to wit: in the first place to provide, during the life of my wife, a furnished house as a home for my wife and children, and out of the income of my estate to provide for the expense of keeping said house, so as to enable my said family to live in the manner they have been accustomed to; said house and the keeping of the same to be under the control and direction of my wife as the head o~ the establishment; secondly, to keep the house and furniture in good repair, and from time to time to renew the worn out furniture; thirdly, to pay all taxes and assessments on my property; and, fourthly, either semiannually or quarterly to make a dividend of the residue of the income, after satisfying the objects hereinafter provided for, equally between my wife and my six children . aforesaid, so as to give each of my said children and my wife an equal_share of the whole; and each one is to defray out of his or her share of said income his or her personal expenses, such as for wearing apparel, traveling, etc.

      Items Upon the death of my wife I direct that my executors and trustees shall make an equal division of my whole estate not herein specifically otherwise disposed of,, among and between my children then living, and the descendants of any deceased child (who may have married and died leaving issue), so that such descendants of any deceased child will receive the same share which their parent would have received if living.”
    He appointed his wife, son and. daughter, Susan, executors and trustees under the will, and they entered upon the discharge of the trusts.
    The trust estate yielded an annual income of $21,000, and of this $7,000 was required to defray the expenses of maintaining the family home as provided in the will, leaving a surplus of $14,000 to be annually divided between the widow and six children.
    The widow is still living. After the death of the testator one of the daughters married Edgar J. Shipman and subsequently died, leaving an infant child, the appellant, and a will in which she gave all her property to her husband for life, and after his death to her children.
    Mr. Shipman claimed that after the death of his wife one-seventh of the surplus income was payable to him under her will, and it was claimed on behalf of the appellant that, the one-seventh was payable to him. The trustees claim o that such income was payable to the widow and six children as a class, and that upon the death of Mrs. Shipman it became payable to the six survivors, and that the corpus of the estate vested in the trustees during the life of the' widow and did not vest in the children until after her death; and so it was held in the court below. Mr. Ship-man did not appeal to this court.

      William C. Beecher, for app’lt; Charles M. DaCosta, for resp’ts.
   Earl, J.

We agree with the court below, and with the contention of the respondents, that the corpus of the residuary estate did not, during the life of the widow, vest in the testator’s children, and for this conclusion the cases of Warner v. Durant (76 N. Y., 133), Smith v. Edwards (88 N. Y., 92), and Shipman v. Rollins (98 N. Y , 311), are ample authority. The whole income is not given to the children during the life of the widow, and during her life the estate is vested in the trustees. There is no direct gift to the children, but simply a direction for a division among them after the death of the widow. In Warner v. Durant Folger, J., said : “ Where there is no gift, but a direction to executors or trustees to pay, or to divide and to pay, at a future time, the vesting will not take place until that time arrives.” In Smith v. Edwards, Finch, J., said, that “ it has been often held that if futurity is annexed to the substance of the gift, the vesting is suspended,” and that “when the only gift is in the direction to'pay or distribute at a future time, the case is not to be ranked with those in which the payment or distribution only is deferred, but is one in which time is the essence of- the gift.” These general rules must control the construction of this will, as there is nothing in its context or general language which renders them inapplicable. This construction, too, is in harmony with the presumed intention of the testator. He vested the whole estate in the trustees during the life of his widow, and during that time evidently intended that it should remain there, and not be subject to the disposal of his children, or hable to be seized by their creditors ; and after the death of his widow he gave it, not to the children living at his death, but to the children and descendants of children deceased living a,t her death.

It is clear that the testator intended that his wife and chicken should take the surplus income, not as a class, not as joint tenants, but distributively as tenants in common. Such is the plain language of the will. The trustees were to divide the surplus “ equally between ” his wife and six children so as give each “an equal share,” and “eachone” was “ to defray out of his or her share ” his or her personal expenses. Such language is always held to constitute the beneficiaries tenants in common, and to show that they take distributively unless there is something in other provisions of the will to show that the testator intended that they should take as a class, and so it was held in Hoppock v. Tucker (59 N. Y., 202). Here there is nothing in the will to control, modify or limit the plain meaning of this language. The testator’s wife was old, and it appears that he contemplated that one or more of his children might during her life marry, die, and leave descendants. He made no provision for the support of such descendants in the family home, and it cannot be supposed that he intended they should during the life of his widow be left without any means of support. He put such descendants in the place of their deceased parents after the death of his widow, and it is fair to infer that he expected that they would in some way take the place of their parents during her life. A construction giving such effect to the will will certainly come, nearest to the presumed intention of the testator.

Therefore, when Mrs. Shipman died, the one-seventh of the income which was payable to her during her life did not pass to the surviving six, but was undisposed of by the terms of the will, and was devolved upon the appellant under the Revised Statutes (1 R. S., 726, § 40), which provides as follows : “When, in consequence of a valid limitation of an expectant estate, there shall be a suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the person presumptively entitled to the next eventual estate. ” This case precisely fits that section. There is a valid limitation of an expectant estate to the appellant. During the lifetime of the widow there is a suspension by a valid trust of the power of alienation, and since the death of Mrs. Ship-man the income is undisposed of by the will, and the appellant is the person presumptively entitled to the next eventual estate, and, therefore, entitled to the income otherwise undisposed of.

The judgments of the general and special terms should, therefore, be reversed, and judgment entered in accordance with this opinion, the costs of all parties in the supreme court and in this court to be paid by the trustees out of the surplus income of the trust estate.

All concur.

       Reversing 34 Hun, 514.


author: Ruger, Ch. J.

text:
    Anna M. Holcombe, Ex’rx, Etc., of George P. Holcombe, Deceased, App’lt, v. Kneeland J. Munson et al., Resp’ts.

      (Court of Appeals,

      Filed November 30, 1886.)

    1. Appeal prom order op reversal "with stipulation por judgment absolute—Whole record will be reviewed.
    Prom a judgment entered upon a referee’s report, the defendants appealed to the general term, which reversed the judgment and directed a new trial, upon an appeal by the plaintiff from the order of reversal "with stipulation for judgment absolute in case of affirmance. Held, that upon such an appeal the appellate court would examine the whole record for the purpose of discovering whether any errors were committed by the trial court which would have authoriz- d an order of reversal by the general term, and if fou"d would affirm the order appealed from and order judgment absolute for the respondent.

      3. Contract—Parol evidence will not be admitted to explain, MODIFY OR CONTRADICT A WRITTEN CONTRACT.
    A written contract cannot be explained, modified or contradicted either as to it 4 express or implied terms by paroi evidence, and it is immatcr.al whether the proposed paroi modification purports to have been made before at the time of, or after the date of the instrument.
    8= Evidence—Hearsay should be stricken out on motion.
    Where evidence was given by witnesses as to the number of acres in a lot of land, and as to the number of cords of wood which it would produce per acre, and they further testify that their o ly information in regard to the lot is derived from statements made by another. Held, error to deny a motion to strike out the testimony.
    4. Same—General objection as to admissibility when sufficient.
    In a case where an objection to evidence cannot be obviated by a~y means within the power of the party offering the evidence, a general objection is sufficient to raise the question as to its admissibility.
    Appeal from an order of the supreme court, general term, third department, reversing a judgment of the Rensselaer special term entered upon report of referee in favor of plaintiff in an action to recover damages for breach of contract.

      James Lansing, for app’lt; Eselc Cowen, for resp’t.

       Affirming 34 Hun, 636, mem.

   Ruger, Ch. J.

This action was brought by John F Holcombe, as assignee of George P. Holcombe, to recover damages from the defendants, for an alleged breach of contract by refusing to employ the assignor in cutting wood and manufacturing charcoal on certain lands owned by them, and also by refusing to accept and pay for certain coal agreed to be furnished by him.

The complaint did not allege performance of the contract by the plaintiff’s testator, or even a tender of performance, but claimed damages for its breach occasioned by defendants’ refusal to make the advance payment of fifty cents a cord provided to be paid for wood chopped, and by an alleged notification by defendants to plaintiff’s testator that they would “not perform the agreement upon their part to be performed, and would not accept any coal made or furnished by him, nor provide cars to transport the same.”

The answer admitted the making of an agreement by the defendants, with George P. Holcombe, in the terms and to the effect particularly set out therein (and which accords with the written agreement thereafter produced in evidence by the plaintiff) but denied the making of any other or different contract. It also took issue upon the allegations of the complaint that they had refused to perform or carry out said contract, or had prevented or discharged said Geo. P. Holcombe from performing the same, and avowed their readiness and ability at all times to perform their part of said agreement.

Upon the trial the plaintiff produced in evidence a written contract executed by the parties referred to, reading as follows:

“Articles of agreement made and entered into this 9th day of March, 1880, between Geo. P. Holcombe, of New-Lebanon, N. Y., of the first part, and Munson & Landon, of Chatham Village, N. Y., of the second part as follows: the said Holcombe agrees with said Munson & Landon to take charge of and cut, coal and deliver all the timber to be taken from lots this day purchased- from Aaron P. Sackett, Burton Jolls and Bernard Nelan, said wood to be cut and corded with good solid measure, to be burned under earth in.good workmanlike manner, and delivered at the railroad at a point where it can be shipped on board of sealed cars to be furnished by said Munson & Landon; cars to be well filled, and due diligence made to keep the supply of coal without unnecessary delay. For such service said Holcombe shall receive from the Jolls and Nelan jobs, the sum of nine cents per bushel, said Munson & Landon furnishing wood; for the Sackett job, said Holcombe shall receive for his services the sum of ten and one-half cents per bushel of coal delivered on the cars. Holcombe shall cut all the wood low and well trimmed. Books of account shall be kept by both parties, subject to the inspection of both, payments to be made on the. 15th day of each month for all coal delivered on the cars the month previous. The parties of the second part agree to advance fifty cents per cord of all wood cut the month previous, which shall be taken from the price paid for the coal. Said Holcombe agrees to make from 40,000 to 75,000 bushels of coal and deliver the same on the cars up to November 15, 1880; said Munson & Landon will pay said Holcombe twelve dollars Eer hundred for good, merchantable charcoal, made from ard wood purchased by said Holcombe, the same being delivered on the cars and paid for on the 15th ■ of each month; said Holcombe to complete the Sackett job by the first day of November, 1882; the parties of the second part to make punctual payments, and to furnish cars promptly, that there may be no delay.

In witness whereof the parties to these presents have hereto set their hands and seals the day and year first mentioned.

GEO. P. HOLCOMBE. [l.s.]

MUNSON & LANDON [l.s.]

In the presence of H. C. Bull.

The questions mainly litigated upon the trial were: First, whether there had been any refusal on the part of the defendants to perform the contract; second, whether there had been a subsequent paroi alteration of the terms of the written agreement; and, third, as to the quantity of coal which the wood on the lot in question was capable of producing, and the cost of manufacturing it.

Upon all of these questions the evidence was quite contradictory and confl icting and incapable of being harmonized or reconciled.

The referee found upon each of the questions referred to in favor of the plaintiff and assessed the damages at $10,608. From the judgment entered upon the referee’s report the defendants appealed to the general term. That court, after an examination of the evidence in the case, came to the conclusion, as appears from its opinion, that the referee erred upon the facts in ordering judgment for the plaintiff. Instead, however, of determining the case upon this ground, its decision was placed, as we must assume from the order of reversal, upon questions of law alone; and it reversed the judgment entered upon the report of the referee and directed a new trial.

The plaintiff declined the hazards of a new trial, but elected to appeal to this court, giving the usual stipulation for judgment absolute.

The decision of the general term precludes us from reviewing the case upon the facts, and confines us to the examination and decision of the questions of law presented by the record. In view of the repeated warnings given by this court of the hazard incurred by a party in taking such course, of encountering some objections and exceptions taken on the trial, but not considered by the general term which might prove to have been well taken, and especially in a case that bristles with exceptions, it was to say the least quite dangerous to risk the chances of an affirmance by us for such errors. Cobb v. Hatfield, 46 N. Y., 533; People v. Supervisors of Essex Co., 70 id., 228; Mackay v. Lewis, 73 id., 382.

Upon such an appeal it is our duty to examine the whole record, for the purpose of discovering whether there were any errors committed by the trial court which would have authorized an order of reversal by the general term; and if such are found it is the imperative duty of this court to affirm the order appealed from and order judgment absolute for the respondent. Id.

We have carefully examined the case for this purpose, and while we find many grave and serious errors committed on the trial which were not at the time pointed out by sufficient and appropriate objections, we also find some that were properly raised and which must be considered and decided by us.

Among the most prominent of them was the admission by the referee, against objection, of paroi evidence to add to and modify the written contract. With the view of relieving the last clause of such contract from the objection that it might be void for want of mutuality, the plaintiff sought to give in evidence an alleged conversation had between George P, Holcombe and said Landon on the same day, but after the execution of the written contract. Mrs. Holcombe, who was the first witness called to prove it, was asked the following question: “What, if anything, was said there as to the amount of coal he wanted your husband to furnish under the twelve cent clause of the contract? ”

The question was objected to by the defendants “as immaterial and improper, and as it calls for the conclusion of the witness.” The objection was overruled and the defendants excepted.

We are of the opinion that the question was objectionable, and that the grounds of the objection were sufficiently stated to raise the question of its admissibility. The question purported on its face to call for paroi evidence qualifying, limiting and affecting the provisions of a written contract, It was plainly intended thereby to give proof of such paroi agreement, outside of the written contract, varying or explaining its meaning and effect. Such evidence was both improper and incompetent.

The grounds of the objection could not have been misunderstood, either by the court or the parties; and the objection could not have been .obviated so as to make such evidence admissible. The question in terms called for oral proof to supplement the provisions of a written contract, and to the proposition, plainly implied from the question, the defendants objected that such evidence was immaterial and improper, as it unquestionably was.

The object of the rule requiring objections to evidence to be made specific and to point out the precise defect existing therein, is to prevent surprise and enable the party offering it to obviate such difficulties as are merely formal and can be cured by reforming the question, or which by further proof can be removed and the question rendered competent. People v. Beach, 87 N. Y., 512; Bergmann v. Jones, 94id., 51. In a case where the objection could not be obviated by any means within the power of the party offering the evidence, in order to raise the question of its admissibility it is sufficient to make a general objection thereto. Quinby v. Strauss, 90 N. Y., 664; Tooley v. Bacon, 70 id., 34; Merritt v. Seaman, 6 id., 168.

The clause of the contract in question was complete in all its parts and needed no additional evidence to make it plain and intelligible. The plaintiff’s assignor was to furnish coal to the defendants at cars furnished by them, and they were to receive all he should- deliver, and pay for it at the rate of twelve dollars per hundred bushels on the fifteenth of each month after delivery. The proposed evidence tended to contradict the terms cf the contract and limit the quantity deliverable by the vendor to one hundred thousand bushels. The fact that a written contract is unenforceable by reason of some vice expressed in it does not authorize the introduction of paroi evidence to eliminate such objection. It is only where the contract is obviously incomplete and imperfect by reason of the absence of some provision which, it is apparent, the parties must have contemplated as a part thereof, that paroi evidence may be admitted to supply the defect. This is a salutary and benecial rule and should neither be disregarded nor evaded.

It is a familiar and fundamental rule of evidence that a written contract cannot be explained, modified or contradicted, either as to its express or implied terms, by paroi evidence, and it is immaterial whether the proposed paroi modification purported to have been made before, at the time of or after the date of the date of the execution of the instrument. Mott v. Richtmyer, 57 N. Y., 50.

The plaintiff made no suggestion that the evidence called for came within any of the exceptions to the rule, and even if he had it would not have availed him anything, for the contract proposed to be proved is required by the statute to be in writing, and it is not competent by paroi to add to such a contract any provision whatever. Drake v. Seaman, 97 N. Y., 230.

The further objection that the contract proved was void by the statute of frauds as embracing a sale of personál property amounting to more than fifty dollars in value, was not available until after the evidence had disclosed the nature of the contract, and we think that after that time, within the decision in Bommer v. Am. Spiral Hinge Mfg. Co. (81 N. Y., 468), that objection was not properly taken.

That the admission of this evidence constituted a material error is manifest from the fact that the referee awarded damages to the amount of $2,000 for a breach of this paroi agreement.

We are also of the opinion that other evidence was improperly admitted in support of the plaintiff’s cause of action. The case was tried upon the theory that the plaintiff was entitled to recover as damages the difference between the cost to him of cutting and manufacturing into coal all of the timber growing upon the several parcels of land described in the contract, and the prices therein provided to be paid for the coal manufactured therefrom. It, therefore, became a very material question on the trial to determine the quantity of wooded land embraced in these lots, the quantity of wood per acre growing tiiereon and the number of bushels of coal which it was capable of producing. The evidence differed widely upon each of these questions, some witnesses placing the quantity of wood as low as eighteen cords, and others estimating as high as forty cords per acre. Several witnesses who had examined a piece of land pointed out to them as the Jolls lot, were called to testify to the number of acres of wooded land therein contained and the number of cords of wood which in their judgment it would produce per acre. They gave material evidence in the case as to such quantities favorable to the plaintiff’s contention. At the same time they testified that they had no knowledge of the location, of the Jolls lot or its dimensions, and that their only information in regard to it was derived from statements made to them by a third person. There was no evidence that this person pointed out the Jolls lot accurately, or indeed that he had any knowledge of its location or dimensions, and he was not sworn as a witness upon the trial.

A motion was made by the defendants to strike out the evidence of these witnesses in respect to the location and estimation of quantities of wood on the lot upon the ground that they had no such knowledge of the facts as entitled them to give an opinion upon those subjects. This motion was denied by the court and the defendant excepted. We see no answer in this exception. The testimony of the witnesses constituted no legal proof of the facts testified to by them, and it should have been stricken out upon the defendants’ motion. There was no attempt on the trial to supply by other evidence the manifest insufficiency of this testimony, and no suggestion that it could or would be done. The essential element of knowledge on the part of the witnesses of the facts testified to was wanting and rendered the evidence merely hearsay and incompetent.

We might specify other exceptions which appear to us to be well taken, but those already mentioned are sufficient to show that the order of reversal made by the general term was authorized by manifest errors committed by the referee and require the affirmance of its order for a new trial by this court. We have deemed it unnecessary to refer to the questions discussed in the opinion below, as we have serious doubts as to the sufficiency of the exceptions taken to some of those questions. The order of the general term is, therefore, affirmed, and judgment absolute for the defendants ordered.

Miller and Finch, JJ., concur; Rapallo, J., concurs in result; Earl and Daneorth, JJ., dissent; Andrews, J., not voting.


author: Rapadlo, J.

text:
    Isaac L. Kip et al., Ex’rs, etc., v. Edward Hirsh, Resp’t.

      Court of Appeals,

      Filed December 7, 1886.)

    1. Specific performance—Assignment for the benefit of creditors —Expiration of trust by lapse of time—Laws 1875, chap. 545— Mortgage foreclosure—Assignee not a party.
    Plaintiff’s testator, in June, 1835, was owner of the lots of land in controversy, and in that month he conveyed them, D. taking from him a purchase-money mortgage. The deed and mortgage were in the same month recorded. In May, 1840, D made a general assignment to S, conveying, among other things, the lots in question; the assignment was recorded in June of the same year. In August, 1840, the testator commenced a suit for the foreclosure of the mortgage, making D. a party, but not the assignee. The foreclosure was completed and the premises sold under the decree and bought in by the testator, and a master’s deed executed to him which was recorded January, 1841. The lots remained vacant and unproductive until the death of the testator. He left a will, of which the plaintiffs are the surviving executors, directing, among other things, that they should sell all vacant and unproductive lots. It does not appear that any of the property embraced in the assignment was ever sold, or the assignment in any way acted upon. In 1885 the plaintiffs and defendant entered into a written agreement whereby the plaintiffs agreed to sell and the defendant agreed to purchase the premises. In an action brought to compel specific performance of the contract: Held, that this assignment was subject to Laws 1875, chapter 545, providing, “And where an estate has been conveyed to trustees for the benefit of creditors, and no different limitation is contained in the instrum-nt creating the trust, such trust shall be deemed discharged at the end of twenty-five years from the creation of the same; and the estate conveyed to trustee or trustees, and not granted by him or them, shall revert to the grantor or grantors, his or their heirs or devisees, or persons claiming under them, to the same effect as though such trust had not been created.”
    2. Same—Validity of title.

      Held, that the plaintiffs were entitled to the specific performance of the contract, that they could convey a valid title.
    Appeal from an order of New York superior court, general term, reversing a judgment of the special term in favor of plaintiffs in an action to compel the specific performance of a contract for the purchase of land.

      Isaac L. Miller, for app’lts; John H. V. Arnold, for resp’t.

       Reversing 53 N. Y. Superior Ct. (21 J. & S.), 1.

   Rapadlo, J.

In June, 1835, Leonard W„ Kip, the plaintiffs’ testator, was the owner of the lots of land in controversy, and in that month he conveyed them to Daniel E. Delavan, taking from him a mortgage on the same lots to secure §1,500, part of the purchase money. The deed and the mortgage were recorded on the 29th of June, 1835. On the 16th of May, 1840, Delavan made a general assignment to Walter J. Smith, conveying the lots in question, together with a very large amount of other real estate and personal property, in trust, to sell the real estate with all convenient speed, and apply the proceeds of the real and. personal estate to the payment, first, of certain specified debts of the assignor ; next, to the payment of all the other-debts ; and, when the trust was fully executed, to return the surplus, if any, to the assignor. This assignment was-recorded June 6, 1840. In August, 1840, Leonard W Kip commenced a suit for the foreclosure for the above-mentioned mortgage, making Delavan a party defendant, but his assignee, Smith, was not made a party. This foreclosure suit proceeded to a decree, and the mortgaged premises were sold under the decree, and bought in by Leonard W. Kip, and a master’s deed was executed to him, December 30, 1840, and recorded February 23, 1841.

The mortgaged premises consisted of three lots on the easterly side of Fourth avenue, between 120th and 121st streets, in the city of New York. They were vacant and unproductive, and so continued until the death of Leonard W. Kip, which took place in 1863. He left a will, of which the plaintiffs in this action are the surviving executors. By this will, after1 making certain bequests, -he devised the residue of his real and personal estate to his executors, in trust for the benefit of his wife during her fife; directing them to let and lease all his productive real and leasehold estates, and empowering them, at any time after his decease, to sell all vacant and unproductive lots, and divide the proceeds among his children. On the 15th of April, 1867, the plaintiffs, as executors of the will, leased the lots in question to John I. Reeber for the term of nine months, from the date of the lease ; he agreeing to pay, as rent, the taxes on said lots as soon as due and payable. Reeber took possession of the lots under this lease, and inclosed the same with a fence on all four sides, and occupied them for storing lumber, from April 15, 1867, until about the year 1883, when he relinquished his business to his sons, who have since then carried on the same business on the premises as his successors.

On the 17th of March, 1885, the plaintiffs and defendant entered into an agreement in writing, whereby the plaintiffs agreed to sell, and the defendant agreed to purchase, the premises for the sum of $12,750, payable as set forth in the agreement. But the defendant now refuses to complete the purchase, claiming that the plaintiffs’ title is defective by reason of the omission to make Walter J. Smith, the assignee of Delavan, a party to the foreclosure suit through which the plaintiffs’ testator derived his title. If the assignment and the title of the assignee were still subsisting, and the trusts unexecuted, the objection would be unanswerable; but we think that the circumstances of the case are such as to create a legal presumption that the purposes for which the trusts were created have ceased, and that consequently the estate of the trustee has ceased, and the title reverted to Delavan, the grantor of the plaintiffs, or those claiming under him. 1 Rev. St., 730, § 67. His title was, of course, transferred to the plaintiffs’ testator by the sale under the decree ; Delavan, the mortgagor, having been a party to the foreclosure. The assignment to Smith was made in 1840, more than forty-five years before the trial of this action, and nearly forty-five years before the making of the contract of sale, and although the trust was to sell the real estate with all convenient speed, for the purpose of paying the debts, it is found as a fact that no sale was ever made by the assignee of the property in question, or any part thereof. It does not appear that any of the property embraced in the assignment was ever sold, or that the assignment was ever acted upon in any manner. Walter J„ Smith, the assignee, lived twenty-five years, and.Daniel E. Delavan thirty years, after the making of the assignment.

It is found that no successor in the trust was ever appointed in place of Smith, and it does not appear that Smith ever claimed or asserted any title to the lots in question under the assignment, or that any creditor of Delavan, of any other person, has ever made any claim under the assignment, or attempted to enforce the trust, although the executors of Kipp have been in actual possession, through their tenants, for nearly twenty years. After such a great lapse of time since the making of the assignment and the sale under the foreclosure, we think the presumption that the debts of Delavan secured by the assignment have been paid, or in some manner discharged, is so strong that the fact that the assignment once existed is no longer a substantial objection to the title. So much time has elapsed that the presumption of payment would apply evento debts evidenced by specialty, or by judgment; and it cannot be conceived that, if the debts have not in fact been paid, there could be any now outstanding which would not be barred by the statute of limitations. We think there is no danger in holding that, independently of the act of 1875, chapter 545, the trusts created by the assignment should, under such a state of facts as exists in the present case, be decreed discharged, and that the estate of the trustee should be deemed to have ceased. No one but the successors of the trustee, if any should ever be appointed, can dispute the title which the defendant will acquire by the conveyance from the executors under the power contained in the will of the testator, and their right to redeem hap long been barred by the statute of limitations.

We think the lots in question are embraced in the power of sale. They were unquestionably vacant and unproductive at the time of the death of the testator, and nothing that has happened since has materially changed their condition. The putting of a fence around them, and the storing of lumber or building materials thereon, did not change their character of vacant lots, so long as they were not built upon. ¡Neither did the lease change their character of unproductive lots, as no rent was reserved, the only agreement on the part of the tenant being to pay the taxes. But we think the testator intended to include in the power the real estate which was vacant and unproductive at the time of his death. The title of Delavan, to which the testator succeeded by his purchase at the foreclosure, was subject only to the estate of the trustee. That was not an absolute estate, but only for the purposes of the trust. Whenever those purposes ceased, the trust ceased, and the assignor, or those who succeeded to ¡his right, were in by their original title.

We are inclined to the opinion, further, that the act of 1875, chapter 545, is applicable to this case. There is nothing in the act which confines its operations to assignments made after its passage, but, on the contrary, its language imports that it applies to trusts theretofore created It purports to amend section 67 of the statute of uses and trusts (1 Rev. St., 730), which provides that, “when the purposes for which an express trust shall have been created shall have ceased, the estate of the'trustee shall also cease ” by adding the following words: “And where an estate has been conveyed to trustees for the benefit of creditors, and-no different limitation is contained in the instrument creating the trust, such trust shall be deemed discharged at the end of twenty-five years from the creation of the same, and the estate conveyed to trustee or trustees, and not granted or conveyed by him or them, shall revert to the grantor or grantors, his or their heirs or devisees, or persons claiming under them, to the same effect as though such trust had not been created.” To construe this act as relating to assignments made after its passage would prevent its having any operation until the year 1900, which could not have been the intention of the legislature.

The intention to make it apply to past assignments appears clearly from its language, which is, “when an estate has been conveyed,” not “shallhave been,” of “shall be conveyed.”

It is in the nature of a statute of limitation, and, if necessary to sustain its constitutionality, it should be construed as making the lapse of time prima facie or presumptive evidence that the trusts have been discharged, and permitting this presumption to be .rebutted by evidence. In Bellinger v. Shafer (2 Sandf. Ch. 293, 296), and cases therein cited, section 67, as originally enacted, was held applicable to trusts created before its enactment as well as to those subquently created, and we are inclined to think that the same construction should be placed on the section as amended by the act of 1875.

In the case of McCahill v. Hamilton (20 Hun, 388), the supreme court held a similar outstanding assignment to constitute a valid objection to the title, and the act of 1875 not to remedy the defect. It must be observed, however, that in that case it appeared that the assignment had been acted upon, and some sales of real estate had been made under it, though the time when the last sale was made does not appear in the case as reported.

But it is not necessary now to finally decide this point as to the act of 1875, as in the present case nearly double the time prescribed by the act of 1875, has elapsed and no conveyance has ever been made by the trustee. The presumption of payment attaches to ah the debts, and it can hardly be conceived that any facts can exist which would entitle any person to enforce the trust.

Under these circumstances we think that the defendant will acquire a good and marketable title to the premises by a conveyance from the plaintiffs as executors, and he should be decreed to specifically perform his contract of purchase.

The order of the general term should be reversed and the judgment at special term affirmed but without costs on this appeal, the question being novel, and there having been one unreserved decision of the supreme court sustaining the views of the respondent.

All concur, except Miller, J., dissenting.


text:
    Mary Renihan, Appl’t, v. Martha Dennin, individually and as ex’rx of James Dennin, deceased, Resp’t.

      (Court of Appeals,

      Filed December 7, 1886.)

    1. Evidence—Witness—When physician incompetent to testify— Code Civ. Pro., §§ 834-836.
    Where a physician was called by the attending physician and went in his professional capacity to see the patient, that was enough to bring him within Code Civil Procedure, sections 834 and 836. The prohibition of the statute is not restricted to information of a confidential nature obtained by the physician.
    2. Same—In testamentary cases.
    In testamentary cases, where the contest relates to the competency of the testator, the evidence of his physician is not competent.
    3. Same—In life insurance case.
    In actions upon policies of life insurance, where the inquiry relates to the health and physical condition of the insured, the evidence of the physician is not competent.

      4. Same—Attorney—When incompetent as a witness under Code Civ. Pro., § 835.-
    The contract relation of attorney and client, based upon an employment by the client, must exist before Code Civil Procedure, section 835 can apply.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment entered upon a verdict at the Eensselaer circuit upon special issues' touching the testamentary capacity of James Dennin and the due execution of his will.

      E. Countryman, with W. J. Ludden, for appl’t; Charles E. Patterson, with Robert PL. McClellan, for resp’t.

       Affirming 38 Hun, 270.

   Earl, J.

The surrogate of Eensselaer county admitted to probate the will of James Dennin, deceased. Upon appeal to the general term, the surrogate’s decree was reversed, and special issues as to the competency of the testator and the due execution of the will were ordered to be tried before a jury.

The trial came on and it appeared that the will was executed in the evening, a short time before the testator’s-death, and that during the same evening before the execution of the will Dr. Bontecou was requested by the attending physician to be present at the testator’s house for consultation with him relative to the testator’s condition and treatment, and in pursuance of such request he did attend. He was called as a witness for the contestants and testified that he saw the testator and advised a prescription for him.

The following questions were put to him: “Will you describe the appearance and condition of the sick man when you got into the room?”

“At the. time you examined this man was he in your judgment in that state known to your profession as ‘ collapse?’ ”

“Was he in your judgment in a dying condition?”

“ State whether in your judgment at any time after that occasion when you were there, James Dennin was in such a condition that he was capable of understanding and taking into account the nature and character of his property and of his relations, by blood'and marriage, to those who were or might become the objects of his bounty, and make an intelligent disposition of his property by will?”

The same question was repeated confining it to the time when the witness saw the testator All the questions were objected to on behalf of the proponent as mcompe-. tent under sections 834 and 836 of tile Code, and the objections were sustained, and counsel for the contestants excepted; and the sole question for our determination upon this appeal is whether that exception was well taken.

Section 834 is as follows: “A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity;” and section 836 provides that that section applies to every examination of a person as a witness unless the provisions thereof are expressly waived by the patient.

Dr. Bontecou was a person duly authorized to practice physic. Whatever information he had about the condition of the testator he acquired while attending him as a patient. It is true that the testator did not call him or procure his attendance. But he did not thrust himself into his presence or intrude there. He was called by the attending physician, and went in his professional capacity to see the patient; and that was enough to bring the case within the statute. It is quite common for physicians to be summoned by the friends of the patient or even by strangers about him; and the statute would be robbed of much of its virtue if a physician thus called were to be excluded from its provisions because, as contended by the learned counsel for the appellant, he was not employed by the patient nor a contract relation created between him and the patient.

To bring the case within the statute it is sufficient that the person attended as a physician upon the patient, and obtained his information in that capacity. Section 835 provides that “An attorney or counsellor at law shall not be allowed to disclose a communication made by his client to him or his advice given therein in the course of his professional employment.”

Before that section can apply in any case, a contract relation of attorney and client must exist, based upon an employment by the client; and the decisions holding this, to which our attention has been called, have no bearing upon section 834. It is not disputed, and could not well be, that the information obtained by the witness was necessary to enable him to act in his professional capacity. Therefore, if the letter of the statute is to prevail, it cannot be doubted "that the rulings of the trial judge were correct.

But it is claimed that the statute should be held not to apply to testamentary cases. There is just as much reason for applying it to such cases as to any other; and the broad and sweeping language of the two sections cannot be so hmited as to exclude such cases from their operation. There is no more reason fox allowing the secret ailments of a patient to be brought to light in a contest over his will than there is for exposing them in any other case where they become the legitimate subject of inquiry*. An exception so important, if proper, should be engrafted upon the statute by the legislature, and not by the courts.

It is also claimed that the statute should be so construed as only to prohibit the disclosures by a physician, of any information of a confidential nature, obtained by him from his patient or while attending him in a professional capacity. Such was the view of the statute taken by me in my opinion in Eddington v. Ætna Life Ins. Co. (77 N. Y., 564); but my brethren were then unwilling to concur with me in that view.

When the same question again came before the court in. Grattan v. Metropolitan Life Ins. Co. (80 N. Y., 281), I again attempted to enforce the same view upon my brethren, and again failed ; and it was then distinctly held that the statute could not be confined to information of a confidential nature, and that the court was bound to follow and give effect to the plain language without interpolating the broad exception contended for.

It is further contended that the rule laid down in Pierson v. People (79 N. Y., 424), should be applied to this case. We there held that the statute did not cover a case where its prohibition was invoked solely for the protection of a criminal, and not at all for the benefit or protection of the patient who was dead, and a waiver of the prohibition had therefore become impossible.

We are unable to perceive how the reasoning upon which that decision rests can have any application to this case. Here there is no allegation of crime, and there is a mere contest over the patient’s property.

It is probably true that the statute, as we feel obliged to-construe it, will work considerable mischief. In testamentary cases where the contest relates to the competency of the testator, it will exclude evidence of physicians which is generally the most important and decisive. In actions upon policies of fife insurance where the inquiry relates to the health and physical condition of the insured, it will exclude the most reliable and vital evidence which, is absolutely needed for the ends of justice. But the remedy is with the legislature and not with the courts.

The judgment should be affirmed, with costs

Ml concur.