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    Mary A. Underwood et al., App’lts, v. Harriet S. Curtis et al., Individually and as Ex’rs, Resp’ts.

      (Court of Appeals, Second Division,

      Filed October 6, 1891.)

    1. Will—Equitable conversion—Time of sale.
    By testator’s will the executrices were directed to sell all of the real estate, and the time of sale rested in their discretion. They were authorized to sell a part or the whole of the real estate at once, and they were not required to make the sale until ten years after the death of testator’s widow. Held, that it was the intention of the testator that the conversion into personal property should he deemed to take place at his death.
    3. Same—Perpetuities.
    Testator directed that the income of all his property should he devoted to the use of his wife and two unmarried daughters during the lifetime of his wife, then one-fourth to each of two daughters and the remaining half to be held by the executrices, in trust, for the benefit of his two married daughters, the income of one-fourth to be paid to each during life and .after death the principal to go to her heirs. The trust estate was to be held by the executrices until ten years should elapse after the death of testator’s wife, unless they should before that time exercise the power of sale. Held, that testator had attempted to create a trust term embracing the whole estate not founded on lives, but on one life and an indefinite period thereafter, which may be of ten years’ duration.
    8. Same.
    Within the rule, the trust created for the life of testator’s widow should be permitted to stand and the testator held to have died intestate except as to the estate created for her life.
    4. Same—Partition.
    Partition could not be had, under the circumstances, because the testator had converted his estate into personalty and vested the legal estate in th.e trustees during the lifetime of the widow, and until her death a division of the property could not be decreed.
    Appeal from a judgment of the general term of the supreme court, fourth department, entered on an order affirming a judgment of the special term dismissing plaintiff’s complaint, and brings up for review the order of the general term reversing an interlocutory judgment overruling the demurrer interposed by the defendants and decreeing partition or sale of the premises described in the complaint.
    This action was brought to partition certain lands of which Palmer H. Curtis died seized. He left him surviving a widow and four daughters, two of whom are the plaintiffs in this suit. Curtis left a last will and testament, and a codicil thereto that have been duly admitted to probate, by which he undertook to make a testamentary disposition of the lands in controversy in such manner as to prevent the plaintiffs from receiving any portion of the principal of his estate.
    The plaintiffs claim that the will and codicil by which the testator sought to accomplish such purpose are inoperative, because in contravention either of the statute against perpetuities, cr the statute relating to accumulations of personal property and expectant estates in such property, because the alienation or absolute ownership of his property is thereby suspended for a longer period than during the continuance of not more than two lives in being-at the creation of the estate.
    The will was executed September 13, 1879, and its provisions so far as material are as follows:
    “After all my lawful debts are paid and discharged, I give and. bequeath to my four daughters, Helen C. Waters, Harriet S. Curtis, Mary A. Underwood and Theresa L. Brown, all my household furniture, family pictures and books, etc., to be equally divided between them by my executrices herein named, but said household furniture, family pictures, books, etc, shall not be so-divided during the lifetime of my wife Fanny Curtis, and my wife- and my said daughters, Helen C. Waters and Harriet S. Curtis, shall have the use, benefit and control of the said household furniture, family pictures, books, etc., until the death of my said wife, free from charge.
    “I give and bequeath unto two of my daughters, viz: Helen-0. Waters and Harriet S. Curtis, two horses, two sets of harness, two carriages and two sleighs.
    “ I give and bequeath unto my wife, Fanny Curtis, and unto my daughters, to wit, Helen 0. Waters and Harriet S. Curtis, the use, proceeds, income and benefit of all the rest, residue and remainder of my estate, both real and personal, to share and share alike therein, during the lifetime of my said wife, Fanny Curtis, and the-provisions herein made for my said wife shall be in lieu of dower, providing she shall accept the same. And, upon my death, my said executrices are hereby authorized ■ and empowered to enter upon, into and take possession of all my estate, both real and personal, and hold, use and keep the same, or rent the same, for the sole use and benefit of and for my said wife and my two daughters, the said Helen C. Waters and the said Harriet S. Curtis, until the death of my said wife.
    “ My said executrices are hereby fully authorized and empowered, during the lifetime of my said wife, or at any time thereafter, to sell, grant, bargain and convey by contract, or good and sufficient deed or deeds, all or any of the real estate, lands or •hereditaments of which I shall die seized, for such price or prices,, and upon such terms and conditions as to my said executrices-shall seem meet, the proceeds of such sale or sales to be held by them for the use.and benefit of my said wife, and the said Helen C. and Harriet S., during the lifetime of my said wife, as herein-before expressed; said executrices are hereby authorized and empowered to rent any or all of said real estate during the life of my said wife.
    “ Upon the death of my wife, the said Fanny Curtis, or at such times thereafter as my said executrices shall deem meet, and within, ten years after the death of my said wife, I direct that my said estate, real and personal, be divided by my said executrices into-four equal shares or portions; that one of said shares or portions shall be given to and be the absolute property of my daughter, Helen C. Waters; that one of the said shares or portions shall be given to and be the absolute property of my daughter, Harriet S. Curtis; the remaining two shares. or portions of my estate I give and bequeath, to my said executrices, in trust, for them to hold and invest in good, permanent, well paying securities, and the use, income and proceeds of one of said shares or portions are by them to be paid to and for the use and benefit of my daughter, Mary A. Underwood, during the lifetime of my said daughter, Mary A. Underwood, and upon the death of my said daughter, Mary A, the share or portion last aforesaid shall belong absolutely to her heirs at law. In case of sickness or any other misfortune during the lifetime of said Mary A., my said executrices are hereby authorized to pay over to said Mary A, for her use and benefit (should Mary A, need the same), out of the principal of the said share or portion hereinbefore set apart for the use and benefit of said Mary A. such sum or sums of said share or portion as to my said executrices shall seem meet; but such payments shall not, in the aggregate, exclusive of the use and benefit or income of said share or portion hereinbefore directed to be paid to said Mary A., exceed the sum of two hundred dollars in any one year. The use, income or proceeds of the remaining share or portion of my estate is, by said executrices to be paid to and for the benefit and use of my daughter, Theresa L. Brown, during the lifetime of my said daughter Theresa L., and upon her death the share or portion last aforesaid shall belong absolutely to her heirs at law. In case of sickness or any misfortune during the lifetime of said Theres'a L., my said executrices are hereby authorized to pay over to said Theresa L., for her use and benefit (should said Theresa L. need the same), out of the principal of the said share or portion hereinbefore set apart for her use and benefit, such sum or sums of said share or portion as to my said executrices shall seem meet, but such payment shall not in the aggregate, exclusive of the use and benefit of said share or portion hereinbefore directed to be paid to said Theresa L., exceed the sum of two hundred dollars in any one year. And my said executrices are hereby authorized and empowered to sell, convey, to convert into money any or all of my estate, real and personal, for the purpose of making the division above named, and for that purpose they are given the said ten years in which to make the said division, so that my estate may not be sacrificed, but it is my will that my daughters Mary A. and Theresa L. shall have the income from the share or portion of my estate named for them, and for their use and benefit, from the death of my said wife, to be paid to them from that date, at least once yearly. Likewise I make, constitute and appoint my daughters Helen 0. Waters and Harriet S. Curtis to be the executrices of this, my last will and testament, hereby revoking all former wills by me made, and having full confidence in my said executrices, they nor either of them shall be required to give any bond or security for the execution of said will or the trust herein created.”
    Subsequently and on the 7th day of June,' 1882, Curtis duly executed a co.dicil to his will, which reads as follows :
    “ Whereas, I, Palmer H. Curtis, of the city of Syracuse, Onondaga county, and state of New York, did, on the 13th day of September, 1879, make, subscribe and publish my last will and testament in words and figures as therein expressed ; now, therefore, I, said Palmer H. Curtis, do make this codicil to my said last will and testament as follows: I give and bequeath to my four daughters, Helen C. Waters, Harriet S. Curtis, Mary A. Underwood and Theresa L. Brown, all my household furniture, goods, family pictures and books, to be equally divided between them by my executrices in said will appointed as in said will directed.
    “ Said household goods, furniture, family pictures and books shall not be divided during the lifetime of my wife, Fanny Curtis, nor until my executrices shall sell and convey all the real estate of which I shall die seized, and my said wife, Fanny Curtis, and my said daughters, Helen 0. Waters and Harriet S. Curtis, or any one, or either of the three who shall survive the other, shall have the use, benefit and control of said household goods, furniture, family pictures and books, absolutely free from all charges, until the death of my said wife and until the further time when the real estate of which I shall die seized shall be all sold and conveyed by my said executrices, not to exceed the ten years named in said will.
    “That my two married daughters, to wit, Mary A. Underwood and Theresa L. Brown, shall not have the interest, benefit or income from the share or portion of my estate named for them and for their benefit in said will until the death of my said wife, Fanny Curtis, but said interest, benefit or income shall belong absolutely to my said wife and two other daughters, to wit, Helen C. Waters and Harriet S. Curtis, until the death of my said wife, share and share alike.
    “If, upon the death of my said wife, Fanny Curtis, all the real estate of which I shall die seized-shall not then have been sold ■and conveyed as in said will provided, then, and in that event, said two married daughters, to wit, Mary A. Underwood and Theresa L. Brown, shall not have the interest, benefit or income from the share or portion of my estate named for them and for their benefit in said will, until said executrices shall sell and convey all the real estate of which I shall die seized, but the said interest, benefit and income named in said -will for said Mary A. Underwood and Theresa L. Brown shall belong, absolutely, to my two other daughters, to wit, Helen C. Waters and Harriet S. Curtis, or to the one who shall survive the other, until such time as the real estate of which I shall die seized shall bé sold and not to exceed the ten years named in said will.
    “ This codicil is made to enable my wife and two unmarried daughters to live upon and occupy the said real estate until such time as it shall be sold as in said will provided.”

      Charles E. Ide, for app’lts ; M. M. Waters, for resp’ts.

         Affirming 34 N. Y. State Rep., 896.

   Parker, J.

The will and codicil are to be construed together .as if they were one instrument, Ward v. Ward, 105 N. Y., 68; 6 N. Y. State Rep., 798, and in the construction now to be made we shall consider first, whether the instrument operated to convert testator’s real estate into personalty. It has long been the established rule that where executors are clothed with the power and duty to sell a testator’s real estate and distribute the proceeds in the manner provided by the will that the real estate will be deemed converted into personalty. Everitt v. Everitt, 29 N. Y, 89; Power v. Cassidy, 79 id., 602. A consideration of the principles which led courts of equity to lay down this rule need not be indulged in, in view of the long line of authorities establishing that property which passes by an instrument, whether will or contract, takes on the character which such instrument has impressed upon it.

It is necessary of course that the direction to convert be positive and explicit irrespective of all contingencies and independent of all discretion on the part of a donee of the power. Turning to the will and codicil it will be observed that the testator commanded the executrices to sell all his real estate, and not until the happening of that event is any distribution of the avails authorized.

There are other provisions relating to the disposition of income and postponing division of proceeds until after the death of testator’s widow, but they need not be considered in this connection, for we are now only concerned in ascertaining whether it was the intent of the testator that all of his real estate should be converted into money and the avails distributed as personal estate.

That such was his intention is apparent from the provision already alluded to, taken in connection with the direction that after the death of testator’s widow and the sale of all the real estate, the proceeds thereof, with all personal estate not specifically bequeathed, shall be divided into four equal shares, one of which shall be given to Helen 0. Waters, another to Harriet S. Ourtis, and “the remaining two shares, or portions of my estate, I give and bequeath to my said executrices in trust for them to hold and invest in good permanent, well-paying securities, and the use, income and proceeds of one of said shares or portions are by them to be paid to and for the use and benefit of my daughter, Mary A. Underwood,” and a like disposition of the other share for the benefit of Theresa L. Brown.

Respondent’s counsel insists that the conversion will not take place until the land is actually sold, unless the executrices fail to execute the power within the limitation prescribed by the testator, in which event it will be deemed to take place as of the time when the sale is. imperatively required to be made, which is at the end of ten years after the death of testator’s widow, and he cites in support of his position, Savage v. Burnham, 17 N. Y., 561.

Whether the conversion shall be deemed to take place on the death of a testator, or at some later period, depends on his intention, as manifested by the provisions of the will.

If it provides in terms that a sale shall be made at some specified future time, or creates a trust with direction to sell only on the happening of a designated event, which might or might not happen, then the conversion would only take place on i.ts occurrence, otherwise the general rule is that real estate will be deemed converted into personalty as of the date of the death of a testator. Pomeroy’s Eq. Juris., vol. 3, § 1162 ; Fisher v. Banta, 66 N. Y., 468.

In Moncrief v. Ross, 50 N. Y., 431, the sale was directed to be made after the death of testator's mother, and the court held that it was clearly the intention of the testator that the conversion should not take place until the happening of that event.

So in Savage v. Burnham, supra, cited by respondent, the will provided that the sale should not take place until after the death of testator’s widow, and it was held that the character of the estate would not be regarded as subjected to the change provided form the will until such occurrence, and in the argument supporting that conclusion the court said: “ Thus, in the present case the real estate is to be sold and the proceeds to become personalty after the decease of testator’s widow and not before. When that period arrives the estate will be deemed to undergo the change directed by the will, whether then actually sold or not. Until then the testator not only contemplated no change, but on the contrary forbid it.”

Now in this will, as modified by the codicil, the time of sale is not necessarily postponed to a specified future time, or until the happening of any event. The executrices are directed to sell all of the real estate, and the time of sale rests in their discretion. They are authorized to sell a part or the whole of the real estate at once, and they are not required- to make the sale until ten years after the death of testator’s widow. It will readily be seen, therefore, that the language of the testator does not indicate an intention to make this an exception to the general rule that a conversion must be deemed to take place at a testator’s death.

The decision of this court in Robert v. Corning, 89 N. Y., 225-239. seems to render further discussion unnecessary, as it is not seen how this feature of the two cases can be distinguished. In Robert's case the testator required his executors to sell all his real estate, but authorized them, in their discretion, to delay the sale for a period of-three years. And the court held that this was an absolute conversión of the real estate into personalty as of the time of testator’s death, the several distributees taking their interests as money, not as land.

In this case the testator also authorized a delay in making sale, and for a longer period it is true, but the fact that more time was given in which the donees of the power to sell could exercise their discretion does not affect the situation.

On the death of the testator, then all of his property became, for the purposes of testamentary disposition, personal estate, and - in the further consideration to be given to the questions presented, it must be steadily borne in mind that while frequent reference may be made to the provision relating to a sale of the real estate, and the time within which it is required to be done, still in legal effect the sale is of personal property. The will converted the real estate into personalty, and the same instrument now directs the executrices to convert such property into money for the purposes therein designated.

We are thus conducted to a consideration of the question whether the provisions of the will and codicil relating to the disposition of the estate are in contravention of that part of the re-' vised statutes which provides that “ the absolute ownership of personal property shall not be suspended by any limitation or condition whatever for a longer period than during the continuance and until the termination of not more than two lives in being at the (íate of the instrument containing such limitation or condition ; or if such instrument be a will, for not more than two lives in being at the death of the testator.”

An examination of the will discloses that the testator, at the time of its execution, intended first, to have the income of all his property devoted to the use of his wife find two unmarried daughters, during the lifetime of his wife; second, that thereafter his two unmarried daughters should each receive one-fourth of his entire estate; the remaining one-half to be retained by the executrices in trust for the benefit of his two married daughters, the income of one-fourth to be paid to each during life, and after death the principal to go to her heirs.

The two unmarried daughters were appointed executrices, and authorized in their discretion to sell all the lands of testator either during the lifetime of testator’s widow or subsequently. Within ten years after the death of testator’s widow, they were directed to divide all the estate, both real and personal, into four equal shares or portions, for distribution in the manner already alluded to. The testator declaring that his purpose in allowing the executrices ten years before requiring them to make a division was to prevent a sacrifice of the estate.

He further provided that during such time as should elapse between the date of the death of his widow and the division, that his married daughters should have the income from the share or portion of the estate named for them, the income to be paid to them at least once a year. The important modifications of the will effectuated by the codicil are three in number. First, it commands the executrices to sell all the real estate, but authorizes them to exercise their discretion whether a sale should be made during the lifetime of testator’s widow, or during a period of not exceeding ten years thereafter. Second, it provides that the division shall not take place until after the real estate shall all have been sold. Third, it declares that until such sale and distribution, the married daughters shall not have the interest, benefit or income from the portion of the estate as provided in the will, but it shall belong absolutely to the widow and two unmarried daughters during the widow’s life, and after her death and until the distribution to the two unmarried daughters.

The will as modified by the codicil, therefore, manifests the purpose and intention of the testator to be, 1. That his executrices shall take possession .of the entire estate and convert the real ■estate into money at such time as they shall deem proper, during a period not exceeding ten years after the death of testator’s widow. 2. That during the lifetime of the widow, and until the real estate is sold, the executrices shall collect the interest and income of the estate, and apply the same to the use and benefit of the widow and executrices, or the survivor of them, and after her death to the use and benefit of the executrices, or the survivor of them.

8. That immediately thereafter the estate shall be divided into four equal shares, one of which each of the executrices shall receive personally. The remaining two shares to be retained by the executrices in trust, the interest and income of one of such shares to be paid to Mary E. Underwood during her life, and at her death the principal to go to her heirs-at-law; and the interest and income of the other share to be paid to Theresa L. Brown during life, and at her death the principal to be paid to her heirs-at-law.

Having ascertained what disposition the testator intended to make of his property, we are to determine whether such disposition is in accordance with law. It will be observed that there was not in terms a devise or bequest to the executrices in trust, but the testator converted his real estate into personalty,, directing the executrices to effectuate his purpose by a sale of the lands. Such estate he authorized them to enter upon and take possession of, collect the income and interest thereof, apply the proceeds for the use and benefit of the widow and executrices for a prescribed term, and at the expiration thereof make division of the avails in the manner directed.

Thus was vested in the executrices in trust the legal estate of all testator’s property. Ward v. Ward, 105 N. Y., 68; 6 N. Y. State Rep., 798; Marx v. McGlynn, 88 N. Y., 357-875; Vernon v. Vernon, 53 id., 351; Leggett v. Perkins, 2 id., 297. And it must continue to reside in them until the purposes of the trust, if legal, shall be accomplished.

The objects of trusts concerning personal property are not defined by statute, but they may be created for any of the purposes for which a trust in lands is authorized by statute, subject to the statutory rule against the suspension of ownership for not more than two lives in being at the death of the testator. And if a trust be created by which the possession of personal property and the legal estate therein is vested in the trustees during the continuance of the trust, an absolute ownership of personal property is suspended within the meaning of the statute. Converse v. Kellogg, 7 Barb., 597. The absolute ownership of personal property being suspended by the creation of a trust in the same manner as alienation of real estate. Hone v. Van Schaick, 7 Paige, 233; Graff v. Bonnett, 31 N. Y., 9 ; Cutting v. Cutting, 86 id., 522; Genet v. Hunt, 113 id., 158-168; 22 N. Y. State Rep., 774.

And the duration of the suspense, in a trust of personal property, like a trust in real estate, must be founded on' lives. Ho term of years however short will satisfy the statute. Schettler v. Smith, 41 N. Y, 328,

Every trust has three elements, closely connected it is true, but nevertheless susceptible of independent consideration. These are the trust property, the trust objects and the trust term. The statute under consideration deals only with the last. The trust objects in this case are the widow and two unmarried daughters,, to whom, or the survivors of whom during the continuance of the trust is to be paid the income of the property.

The fact that there were in being at testator’s death three persons to whom or to the survivors of whom the income was to be paid, does not bring the trust within the condemnation of the statute, for there may be as many beneficiaries of the income of a trust as the testator may see fit to designate, provided the duration of the trust term does not extend beyond two lives in being at the time of his death. Crooke v. County of Kings, 97 N. Y, 421. In this case the trust term was not made dependent in any degree whatever upon the duration of the lives of the executrices or either of them. They were trust objects, entitled to share in the income, but not in any sense term measurers.

In the consideration of the duration of the trust term as to the whole of the estate, and the trust term for one-half of the estate after division, we will first refer to the position of the respondents.

They concede that a trust was created comprising the entire estate, to continue during the life of the widow, but insist that on the happening of that event the active trust is to cease, and the executrices thereafter are to act under a power in trust, which requires them to convert the land remaining unsold into money, for the purposes of distribution in the manner provided by the will. That from the time of the division there is a further trust embracing one-fourth, to last during the life of Mary A. Underwood. And a like trust as to another one-fourth, to continue until the death of Theresa L. Brown. They urge that the period which may intervene between the death of the widow and that of Mary A. Underwood, or Theresa L. Brown, should be carved out of their respective lives, thus limiting the duration of the suspension of ownership of any portion of the estate to two lives.

Robert v. Corning, 89 N. Y., 225, is invoked by respondents as an authority for the proposition that the authorization to sell at any time within ten years after the death of testator’s widow is not a suspension of the power of alienation, because the power of sale was not fettered by the discretion conferred by the will.

But that question is not before us, and its consideration only tends in the direction of confusion, for as we have already observed, for all testamentary purposes, the estate must be treated as personalty, and we are only concerned in ascertaining whether it was the intention of the testator to create a trust of personalty for a term condemned by statute. In Robert's case there was not a trust term created of which the power of sale was an incident.

In Manice v. Manice, 43 N. Y., 303, the executors were only given authority to apply the income during the lifetime of testator’s widow, and the trust was therefore limited to the period during which they were directed to be applied.

But in this case it is conceded that a trust was created to continue during the life of the widow, and it is difficult to suggest any reason for holding that the testator did not intend a trust to last not only during the lifetime of the widow, but for an indefinite period thereafter, not exceeding ten years. And it may be observed that the effect of the codicil is to encourage them in the direction of delay, because until finally sold they are made the beneficiaries of the income of the entire estate. The executrices were not only put in possession of the whole estate with authority to use and invest, but such possession is to continue after the death of the widow, and until the time of division. During the period that may elapse, between the time of the widow’s death and the division, as well as before, they are to collect and receive the income. And also during that time, as before, they are to apply all the income to the trust objects.

During the lifetime of the widow the beneficiaries of the income of the trust fund are the widow and the unmarried daughters, or the survivor of them, and after her death the unmarried daughters, or the survivor of them. The power of sale can be exercised by the executrices in whole or in part, either during the life of the widow or within ten years thereafter. And until ten years shall elapse after her death, unless the executrices shall before that time exercise such power, the trust continues. Clearly then the testator has attempted to create a trust term embracing the whole estate, not founded on lives, but on one life and an indefinite period thereafter, which may be of ten years duration.

The fact that the trust as to the entire property may by the action of the executrices be terminated on the death of the widow is of no moment, if events may happen so that such estate may be extended beyond the statutory limitation. In the words of Judge Grover, “to render such future estates valid they must be so limited that in every possible contingency they will absolutely terminate at such period, or such estates will be held void.” Schettler v. Smith, 41 N. Y., 328-334.

It is unnecessary to refer to the cases in which the courts have declared void trusts attempted to be founded for a term measured otherwise than by lives, because in violation of the statute of perpetuities, or the statute relating to accumulations of personal property and expectant estates in such property, but a few cases may be cited which serve to illustrate the various efforts which have been made in the past to avoid, the rigor of the statute.

In Chuikshank v. Home for the Friendless, 113 N. Y, 337; 22 N. Y. State Rep., 738, and People v. Simonson, 126 N. Y., 299; 37 N. Y. State Rep., 371, the trusts were to continue until the legislature should authorize, by appropriate enactment, an incorporation such as testator desired should receive the estate; in Garvey v. McDevitt, 72 N. Y., 556, the duration of the trust was sought to be limited to a period of four years immediately after testator’s death; in Killam v. Allen, 52 Barb., 605, until the payment and extinction of certain mortgages; in Moore v. Moore, 47 Barb., 257, until the reformation of a person, not exceeding three years; and in Thompson v. Clendening, 1 Sandf. Ch., 387, a trust of personalty was created to continue until a sale and distribution of real estate which could not take place until some one of several children became twenty-one years of age, and need not until the youngest child reached majority.

In addition to the trusts already considered, the testator pro-Tided for a trust as to one-fourth of the estate for the life of Mary A. Underwood, and a further trust as to another one-fourth of the estate during the life of Theresa L. Brown. These trusts cannot take effect until after the expiration of the trust which is to terminate when the sale of the real estate takes place. That fact, taken in connection with the farther fact that the trust as to the entire estate for the indefinite period provided for will not be terminated by the death of both Mary A. Underwood and Theresa L. Brown, renders unnecessary any discussion of the suggestion that such indefinite period not exceeding ten years may be carved out of their lives.

Having reached the conclusion that the trust terms sought to be created are in hostility to the statute, we must now consider whether there may- be such a separation of the trusts as will preserve the trust authorized for the life of testator’s widow.

If the provision for the benefit of the widow and the two unmarried daughters, during the life of the widow, is inseparably connected with the other dispositions of the will and a necessary part of the general scheme for the disposal of testator’s property, then it must fall with them and the testator died 'intestate. Benedict v. Webb, 98 N. Y., 460. But where several trusts are created and those which render the entire disposition illegal can be separated and the legal upheld without doing injustice or defeating that which the testator might be presumed to wish, that which is illegal, or which added to others renders the whole illegal, may be cut off and the intention of the testator given effect so far as the statute will permit Kennedy v. Hoy, 105 N. Y., 134; 6 N. Y. State Rep., 787; Van Schuyver v. Mulford, 59 N. Y., 426 ; Manice v. Manice, 43 id., 303.

In Kennedy's case the will directed the application of the income of a trust estate to the support of testatrix1 son and his family during his life; after his death to his surviving children until they reach the age of twenty-one jmars, when the principal was to be divided among them; with other provisions in case of his son’s death without issue. The trusts were held to be separable .and that for the life of the son declared valid.

In Van Schuyver's case the income of testator’s entire estate was given first to his widow during her life; second, after her death to his two daughters during their lives, and then he devised the estate to the issue of such daughters. The courts declared the trusts separable and the provision for the wife valid although the devise over was void.

And within the rule established by those and kindred cases we think the trust created for the life of testator’s widow should be permitted to stand, and the testator held to have died intestate, except as to the estate created for her life. This can be done without in any manner interfering with the general scheme adopted by the testator for the disposition of his property. On the contrary, it is in furtherance of his wish to as great an extent us the courts may be permitted to go.

It is apparent that his primary purpose was to provide that his widow and unmarried daughters should have the use of his entire estate during the widow’s life. Subsequently he concluded to give the unmarried daughters the benefit of such use for an indefinite period, but while effect cannot be given to such subsequent intention, it may and should be given to the first.

The conclusion thus reached requires an affirmance of the judgment dismissing the complaint by which is sought either a partition or a construction of the will.

Partition cannot be had because, in the view we have taken,, the testator has converted his estate into "personalty and vested the legal estate in the trustees during the lifetime of the widow, and until her death a division of the property cannot be decreed.

Respondent cites Chipman v. Montgomery, 63 N. Y., 221, as an authority for the assertion that the plaintiffs cannot maintain an action to construe the will because they claim in hostility to-it, asserting its invalidity.

As testator’s estate became personalty at the moment of his death, C hipman's case may not be applicable to the situation presented, for courts of equity will often take jurisdiction to construe a will involving the disposition of personalty, where they would refuse if a judicial construction was sought for the mere purpose of determining title to real estate. Wager v. Wager, 89 N. Y., 161.

The reason for it is found in the fact that an executor is regarded as a trustee of the personalty which he holds in trust for the legatees or beneficiaries so far as it is disposed of by will, and as to the residue for those entitled to it under the statute of distributions. Bowers v. Smith, 10 Paige, 193. And courts of equity have ever regarded the supervision of trusts and trustees as peculiarly objects of equitable cognizance.

But we need not inquire whether a complaint might have been so framed as to have authorized a court of equity to assume jurisdiction to construe the will, at the instance of next of kin, claiming in hostility to its provisions, for as complete relief can in due time be obtained in surrogate’s court, the court was authorized on that ground, in the exercise .of its discretion, to decline jurisdiction. Wager v. Wager, supra. And if it should be determined that it might have construed the will, we should be obliged to assume that in the proper exercise of its discretion it. declined to do so, for there is nothing in the record to show that, the complaint was dismissed because of want of jurisdiction.

Whether the court best exercised the discretion belonging to it is not a proper subject of inquiry here, but if it were, reasons could readily be assigned sustaining such position.

The judgment should be affirmed.

All concur, except Vann, J., not sitting.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    Maria Stelz, Pl’ff, v. Minnie Schreck, Impl’d, Def't.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. Tenancy by entirety—Effect of divorce upon deed to husband and wife.
    Tenancy by the entirety created by a deed to husband and wife is severed by an absolute divorce, and, therefore, each takes his or her proportionate share of the property as a tenant in common without survivorship.
    3. Same—Not dependent upon the conduct of the grantees.
    The estate of tenants by the entirety does not depend upon the condition that each of the grantees shall remain faithful to the obligations of the married state, and the violation of such condition judicially determined does not vest the whole estate in the innocent party.
    (Earl, J., dissents.)
    Appeals by each party from judgment of the supreme court, general term, first department, affirming judgment directing the recovery of dower by the plaintiff in an equal undivided half of certain real estate.

      Geo. H. Kracht, for pl’ff; Edward W. S. Johnston, for def’t.

       See 37 N. Y State Rep., 663.

   Peckham, J.

We agree in this case with the views expressed by the learned judges who delivered the opinions at the special and general terms of the supreme court. The sole question arises out of the decree of divorce which the husband obtained from his first wife on account of her adultery.

Did that divorce have any, and if so, what, effect upon the character of the holding of the real property by the former husband and wife ? By the conveyance the husband and wife took an estate as tenants by the entirety. Bertles v. Nunan, 92 N. Y., 152 ; Zorntlein v. Bram, 100 id., 13, Such a tenancy differs from all others. In one respect it is like a joint tenancy, in that there is a right of survivorship attached to both, but it is not a joint tenancy in substance or form. Barber v. Hirris, 15 Wend., 615 ; Jackson v. McConnell, 19 id., 175; Bertles v. Nunan, supra. It originated in the marital relation, and although the survivorship presents the greatest formal resemblance to joint tenancy, instead of founding the estate by the entirety upon the notion of joint tenancy, all the authorities refer it to the established effect of a conveyance to husband "and wife pretty much independent of any principles which govern other cases. Jackson v. McConnell, supra.

At- common law husband and wife were regarded as one person, and a conveyance to them by name was a conveyance in law to but one person. These two real individuals by reason of this relationship took the whole of the estate between them and each was seized of the whole, and not of any undivided portion. They were thus seized of the whole because they were legally but •one person. Death separated them, and the survivor still held the whole because he or she had always been seized of the whole, and the person who died had no estate which was descendible or devisable. Being founded upon the marital relation and upon the legal theory of the absolute oneness of husband and wife, when that unity is broken, not by death but by a divorce a vincub, it stands to reason that such termination of the marriage tie must, have some effect upon an estate which requires the marriage relation to support its creation.

The claim on the part of the counsel for the wife is that it is only necessary the parties should stand in the relation of husband and wife at the time of the conveyance and at that time the estate vests, and no subsequent divorce can affect an estate which is already vested. But the very question is, what is the character of the estate which became vested by the conveyance ? If it were of such kind that nothing but the termination of the marriage by the death of one of the parties could affect the estate conveyed,, then of course the claim of the counsel is made out, but it is an assumption of the whole case to say that the estate vested was of the character he claims. When the idea upon which the creation of an estate by the entirety depends is considered, it seems to me much the more logical, as well as plausible, view to say that as the estate is built upon the unity of husband and wife, it never would exist in the first place but for such unity, anything that terminates the legal fiction of the unity of two separate persons ought to have an effect upon the estate whose creation depended upon such unity. It would seem as if the continued existence of the estate would naturally depend upon the continued legal unity of the two persons to whom the conveyance was actually made. The survivor takes the whole in case of death, because that event has terminated the marriage and the consequent unity of person. An absolute divorce terminates the marriage .and unity of person just as completely as does death itself, only instead of one, as in the case of death, there are in the case of divorce two survivors of the marriage, and there are from the time of such divorce two living persons in whom the title still remains. It seems to me the logical and natural outcome from such a state of facts is that the tenancy by the entirety is severed, and a severance having taken place,, each takes his or her proportionate share of the property as a tenant in common, without survivorship. It is said that in such case it ought to be a joint tenancy, but I see no reason for that, claim. As it has been held that seizin by the entirety does not create a joint tenancy either in substance or form, 19 Wend., supra, and as a tenancy by the entirety depended wholly upon the marital relationship, there can be no reason why the seizin should be turned into a joint tenancy by virtue of the very fact which terminated the unity of person upon which the right of survivor-ship is itself founded and to which it owed its continued existence.

It is true that a conveyance of this kind if made to two ■ persons who were not husband and wife, would at common law have created a joint tenancy. But our statute provides that every estate granted or devised to two or more persons in their own right shall be a tenancy in common unless expressly declared to be a joint tenancy. 1 R. S., 727, § 44. This statute did not reach an estate by the entirety, nor did the statutes of 1848 and 1849, and 1860 and 1862. Bertles v. Nunan, supra. It, therefore, still exists under our law.

We have seen, however, that a tenancy by the entirety is not a joint tenancy in form, or substance. Upon what principle should the termination of the former species of tenancy, resulting from an absolute divorce, be changed into the latter in the face of our statute, relating to joint tenancies ? The conveyance did not expressly declare that the tenancy was to be a joint tenancy, and therefore when the original character of the tenancy by the entirety is changed, it cannot be transformed into that of a joint, tenancy without a clear violation of our statute.

The counsel for the defendant urges that we are giving by this decision a retroactive effect to a decree of divorce in a case not warranted by the statute and in violation of the well settled rule in this state as to the effect of such a decree. He says that we change the effect of the deed of conveyance and that the decree of divorce not only severs the unity of person from the time of its entry, but that we allow it to date back to the date of the conveyance and to give an effect to such conveyance that it did not. have at the time of its execution. We think not.

We do not at all question the contention of the defendant’s counsel that a decree of divorce in this state only operates for the future and has no retroactive effect or any other effect than that-given by statute. But we hold that the character of the estate conveyed was such in its creation that it depended for its own continuance upon the continuance of the marital relation and when that relation is severed, as well by absolute divorce as by death, the condition necessary to support the continuance of the-original estate has ceased and the character of the estate has for that reason changed. The estate does not revest in the grantor or his heirs, for no such condition can be found in the law or in the nature of the estate, and it must therefore remain in the grantees, but by an altered tenure. Their holding is now a holding of two-separate persons, and for the reasons already given such holding-should be by tenancy in common and of course without any survivorship.

I think the contention that the first wife is entitled to the whole of the estate as survivor of her husband cannot be maintained. Although the question is new in this state it has been somewhat-debated in the courts of some of the other states. In Harrer v. Wallner, 80 Ill., 197, and Lash v. Lash, 58 Ind., 526, and Ames v. Norman, 4 Sneed, 683, similar views to those we have herein stated are set forth. A contrary decision has been made in Michigan in the case of Lewis, reported in 48 N. W. Rep., at 580. We have-read the opinion in that case, but we feel that our own view is more in accord with legal principles, and we cannot therefore follow it.

Upon the defendant’s appeal the judgment ought to be affirmed.

Upon the appeal of the plaintiff her counsel contends that there is a condition annexed to the estate by the entirety which is implied by law, and the condition is that each of the grantees shall remain faithful to the obligations of the married state and shall not by his or her misconduct cause a dissolution of the marriage relation upon which the estate depends. I find no warrant for implying any such condition in the character of the holding, and still less for the result which as he claims flows from a violation of such condition. ' Its violation (judicially determined) results according to the plaintiff’s argument in the immediate vesting of the whole estate in the innocent party to the marriage, just the same as if the other party thereto were actually dead instead of divorced. None of the authorities treat the estate as dependent upon any such condition, and however proper it might be to enact by legislative authority a condition of that nature, this court has not that power.

It is unnecessary to add anything further to the views which have been expressed by the learned judges of the supreme court - in this case, and we are of the opinion that the judgment appealed from should be affirmed, and as neither party appealing has succeeded here, the affirmance should be on both appeals without icosts.

All concur, except Earl, J., dissenting, and Finch, J., absent.


author: Ruger, Ch. J.

text:
    Samuel McElroy, Appl’t, v. Henry Mumford et al., Resp’ts.

      (Court of Appeals,

      Filed October 6, 1891.)

    .1. Undertaking—Liability oe sureties.
    The role which restricts the liability of sureties to the strict terms of their contract, and forbids an extension thereof by inference or implication, does not apply to a case where the instrument shows a clear intention to come under a more enlarged obligation.
    3. Same.
    On appeal by a railroad company to this court from a judgment of general term, affirming a judgment with costs, an undertaking was given executed by defendants which recited the recovery of judgment for “ costs of affirmance,” and conditioned for the payment by the appellant of all costs and damages which may be awarded against it- on said appeal, not exceeding $500, and also that if the said judgment so appealed from, or any part thereof, is affirmed, or the appeal dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment, or the part thereof as to which it is affirmed. Held, that this was sufficient to form a good undertaking for the entire judgment, aud not for the costs of affirmance alone, and that upon affirmance by this court the sureties, could be held liable for the original judgment.
    Appeal from order of the supreme court, general term, second department, reversing judgment in favor of plaintiff.
    Action upon undertaking given by the Brooklyn Underground Railroad Company upon an appeal to the court of appeals.

      T. C. Cronin, for app’lt; Leslie W. Russell and Welton Percy, for resp’ts.

       Reversing 36 N. Y. State Rep., 335.

   Ruger, Ch. J.

It is not claimed that the undertaking, given on an appeal to this court and sued upon, was insufficient in form to stay an execution on the original judgment, except for the .alleged fact that such judgment was not fully described in the recitals of the instrument. The undertaking describes the judgment of the general term as one that was recovered by the respondent against the appellants in the New York supreme court, county of Kings, on the 12th day of December, 1887, “for the sum of $122.97, being costs of affirmance, and with interest thereon from that date.” If this recital had referred to the judgment as being one of affirmance, with costs, no question could have been raised as to the sufficiency of the undertaking to secure a stay of execution upon the original judgment. The notice of appeal to this court, which was served simultaneously with the delivery of the undertaking, described the appeal as taken “ from an order made and entered herein on the 12th day of December, 1887, affirming a judgment entered herein on the 30th day of June, 1887, for $3,659.08, and from the judgment entered herein on the 12th day of December, 1887, for the sum of $122.97, costs upon said affirmance.” The order for judgment entered at general term was in these words: “The judgment entered on the report of the referee herein 30th June, 1887, for $3,659.08, having been affirmed by the general term of this court on the 12th day of December, 1887, with costs and disbursements, and the same having been taxed at the sum of $122.97, it is ordered * * * that the same be and hereby is entered as a judgment against said defendant and appellant.”

It thus appeaas that the appeal actually taken was from the whole judgment, and not from a part thereof, and that the judgment itself was entire and indivisible.

It is contended by the defendants that, because the undertaking refers to the judgment of the general term as one for costs alone, it should not be held to cover the original judgment which was affirmed by the order of the general term; but should be limited to so much of such judgment as awarded costs alone. It is claimed that the rule which restricts the liability of sureties to the strict terms of their contract, and forbids an extension thereof by inference or implication, requires such a construction of the undertaking. We concede the full force of the rule referred to, but are of the opinion that it does not apply to a case where the instrument shows a clear intention to come under a more enlarged obligation. We think that such an intention is found in the terms of this undertaking.

A cogent illustration of the rule referred to is found in the case of Goodwin et al. v. Bunzl et al., 102 N. Y., 224; 1 N. Y. State Rep., 405. In that case the defendants had executed an undertaking on an appeal to the general term from a judgment for the recovery of a chattel. The undertaking actually given was in the form prescribed by the Code to stay execution on money judgments alone. It was held, in accordance with what was assumed-to have been the intention of the parties, that the undertaking was a valid security for the stay of proceedings on the appeal, as otherwise it would have been an idle ceremony to execute it.

We think the intention here was equally clear, from the whole instrument, that the parties intended to secure a stay on the entire judgment rendered by the general term. It was unnecessary in this case for the appellants, in order to perfect the appeal to this court, to give any other undertaking than one to pay all costs and expenses awarded on the appeal, not exceeding $500. Sec. 1326, Code Civ. Pro. But to stay an execution it was necessary to give a further undertaking to the effect “ that if the judgment or order appealed from, or any part thereof, is affirmed,-or the appeal is dismissed, he (the appellant) will pay the sum recovered or directed to be paid by the judgment or order, or the part thereof, as to which it is affirmed.” Sec. 1327. It was at the option of the appellant to give the first, or both of these undertakings, and to unite them in one instrument or not as he should elect Sec. 1334.

The defendant here attempted to give both undertakings and combined them in one instrument. This indicated an unmistakable intention to procure a stay of execution on some judgment already entered. Is it credible to suppose that it was intended to procure a stay for the insignificant sum of $122 only and leave itself exposed to the hazard and inconvenience of being forced to pay the larger sum of nearly $4,000. The same reason which "would induce them to stay proceedings on the smaller amount would operate still more forcibly for any larger sum. It would be a very restricted construction which would limit the protection of this undertaking to the smaller amount alone. We also think this construction is in harmony with the language used in the undertaking. That states the date of the judgment entered, the ■court and county in which it was entered, and refers to an affirmance of some prior judgment between the same parties by the general term. It seems to us that this is all that is required to form a good undertaking for the entire judgment; unless some indication is found in the instrument or the notice of appeal of an intention to appeal from a part of the judgment only. We find no such indication. It is not the office of the undertaking to show the nature and scope of the appeal, for that is performed by the notice of appeal. The only object of describing the judgment in the undertaking is to enable it to be identified as the subject of the instrument, and when this is accomplished its office has been performed. This was effected by referring to it as a judgment of. a certain date, between certain parties, or as an affirmance of a •judgment between the same parties, with costs. The award of costs by the general term was an incident merely of the affirmance and could have had no legal existence separate from such affirmance. There was, in fact, but one judgment in the general term of the date and between the parties described, and but one actually appealed from or referred to in the undertaking, and to hold that the judgment referred to included the costs only would violate the intention of the parties and enable the defendants to take advantage of an assumed ambiguity created by their own act.

Suppose the character of the judgment was not described in the undertaking with exact particularity, so long as there was enough in'the description to identify it with certainty, can it be held that the undertaking is, for that reason, void or ineffective ? The undertaking described a judgment in the supreme court, in favor of the respondents and against the appellant, entered on the 12th day of December, 1887, in Kings county, “for the sum of £122.97, being costs of affirmance,” and says “ the said appellant feeling aggrieved thereby intends to appeal therefrom to the court of appeals.” Is it not the judgment entered on the 12th of December that the appellant intends to appeal from? It seems absurd to say that it intended to appeal from the mere incident of that judgment. Ko such intention is indicated in the undertaking ; but the inference seems clear that the intent was to appeal from the whole judgment. The parties acted upon this understanding and no execution was issued or attempt made to -collect the judgment. It is evident that that was also the understanding of the parties when they served their notice of appeal, for that instrument fully describes an appeal from an order affirming the original judgment, and when the parties say, in their undertaking, that they “ do also undertake that if the said judgment so appealed from,, or any part thereof is affirmed, or the appeal is dismissed the appellant will pay the sum recovered or directed to be paid by the judgment of (or) the part thereof as to which judgment is affirmed.” They had in view such judgment as was fully described in the notice of appeal, as well as that which was also described, though somewhat briefly, in the recitals of the undertaking. The whole judgment having been appealed from and affirmed, how can the sureties perform their undertaking that the appellant shall pay so much of the judgment appealed from as may he affirmed unless they be held liable for the amount required to be paid by the judgment of the general term, which included the original judgment as well as costs of appeal? The effect of the judgment of the general term was to authorize the plaintiffs to proceed and collect the original judgment, and was, in effect, a judgment directing the payment of the sum due thereon to the plaintiffs. Such we understand to be the effect of the decision in Hinckley v. Kreitz, 58 N. Y., 583. Judge Church there says: “ When the judgment was affirmed at general term the liability of the defendants (the sureties in the first undertaking) was fixed.

“ The defendant, their principal, had aright of appeal to the court of appeals ; but to do so it was, in the first place, indispensable to furnish sureties to an undertaking for $500 to secure costs, and to stay proceedings, to an undertaking to pay the judgment if affirmed.” It was, accordingly, held in that case, that the liability of the sureties on appeal to this court was for the payment of the original judgment, as included in and covered by the judgment of affirmance, and relieved the sureties on the appeal to the general term from their primary liability. As stated by the codifiers, § 1332 was framed to make the principle of this decision a part of the statutory law. That section reads as follows: “ When the judgment or order, from which an appeal is taken to the court of appeals, affirms a judgment or order, to the effect specified in either of the last five sections, the undertaking must be the same as if the judgment or order, from which the appeal is taken, was to the same effect as the judgment or order so affirmed.” In other words, if the judgment affirmed required the payment of money, the order of affirmance must be treated as though it had directed the payment of the same sum as that provided for by the original judgment, and an undertaking given on appeal from a judgment of affirmance will have the same effect as though the judgment of" affirmance had expressly directed the payment of the-sum included in the original judgment. The meaning of this, section is not plain; but it nowhere purports to prescribe the form of an undertaking, and this was of course unnecessary as it. may be in any form which expresses the intent of the parties with sufficient clearness to enable the court to understand its-meaning. There was room for question, under the previous sections, whether a mere judgment of affirmance was a judgment for the recovery of money when the original judgment was not expressly reaajudged in the order of affirmance, and the section seems to have been intended to clear up this question.

By § 1317, the general term were prohibited from expressly awarding the payment of a sum of money in affirming a judgment, and this left it in some doubt as to whether a judgment of affirmance was a judgment for a sum of money, within the meaning of § 1327, which could be secured by an undertaking on appeal from the general term; but this section, in substance, provides that a judgment of affirmance shall be treated in the undertaking as a judgment for the recovery of money; otherwise there is no way provided by the Code for staying execution on such a judgment during the appeal to the court- of appeals.

The form of an undertaking to stay an execution on appeal from a judgment for a sum of money is given by § 1327, and § 1332 was unnecessary and inadequate to effect any change^of this form and it, therefore, says, substantially, that the undertaking given on an appeal from a judgment of affirmance shall be the same as though that judgment was to the same effect as the original judgment, or, in other words, the same as upon a judgment for money. As thus construed it is intelligible and accomplishes the object which the codifiers state was the purpose of the section. If interpreted as a direction for the form of an undertaking, it utterly fails to convey any idea and throws no more light upon the form of the instrument than would any other jumble of words. We, therefore, disapprove of the construction given to such an undertaking in Morss v. Hasbrouck, 10 Abb. N. C., 407.

The order of the general term should, therefore, be reversed and the judgment rendered at circuit affirmed, with costs to plaintiff in all courts.

All concur.


text:
    Harriet E. Joslyn, Adm’rx, App’lt, v. George H. Rockwell et al., Resp’ts.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. Taxes—Sale—Laws 1885, Chap. 448.
    Chapter 448, Laws 1885, which provides that the comptroller’s deed given upon a tax sale shall, two years after record, he conclusive evidence of the regularity of the sale and proceedings, does not purport to cure jurisdictional defects. It raises a conclusive presumption of regularity, leaving to the owner full right to assail the proceedings for any jurisdictional defect.
    2. Same—Defense.
    In an action for trespass in entering lands of plaintiff’s intestate and cutting wood thereon, where the title was claimed under a comptroller’s deed, Held, that evidence was properly admitted to show that the taxes for which the land was sold were assessed as against non-resident lands, while in fact they were occupied by one representing defendants’ grantor, and also that the taxes were paid to .the collector before return was made
    . by him, as the questions were of a jurisdictional character and not covered by the act of 1885.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of defendant's.
    Action for trespass in wrongfully entering on lands of plaintiff’s intestate and cutting and converting wood and timber.

      James C. Rogers, for app’lt; J. S. L'Amoreaux, for resp’ts.

       Affirming 35 N. Y. State Rep., 888.

   Peckham, J.

In Ensign v. Barse, 107 N. Y., 329 ; 12 N. Y. State Rep., 39, the statute provided that, under certain circumstances named in the act, the comptroller’s deed should be “ conclusive evidence ” that “ the sale and all proceedings prior thereto from and including the assessment of the land, and all notices heretofore or hereafter required by law to be given previous to the expiration of the time allowed by law to redeem, were regular and were regularly given, published and served according to the provisions of all laws requiring and directing the same or in any manner relating thereto.”

The plaintiffs here claim title under two deeds from the comptroller to Grerrit Smith, executed by reason of sales of the land for non-payment of taxes. In 1885, long subsequent to such sales and conveyances by the comptroller, the legislature passed the act known as chapter 448 of the Laws of that year, and it was provided therein that after certain times therein stated the deeds of the comptroller executed upon sales for the non-payment of taxes should be “ conclusive evidence ’’ that “ the sale of said lands, and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to the expiration of two years allowed by law to redeem were regular, and. were regularly given, published and served according to the provisions of this act, and all laws directing or requiring the same or in any manner relating thereto.” The comptroller’s deeds, under which the plaintiff claims, were executed and recorded in due time so as to come within the purview of this act.

It is evident that upon the subject of the conclusive character of the comptroller’s deed, the act of 1885 does not differ in any material respect from the act already quoted, and which was under discussion in the case of Ensign v. Barse, supra. It must, therefore, receive the same construction which was given the act in that case. It was there said that the act did not on its face purport to cure jurisdictional defects.

Judge Finch, in the course of his opinion, declared that the act “raises a conclusive presumption of regularity, but leaves the question of the assessors’ jurisdiction and authority unaffected. Thus understood, it comes within the rule which counsel concede , to be correct. It does not make the tax deed conclusive evidence of a complete title, but leaves open to the owner full right to assail the proceedings in any jurisdictional respect.” This construction was concurred in by the whole court. ¡Nothing in the cases of People v. Turner, 117 N. Y., 227; 27 N. Y. State Rep., 158, and Ostrander v. Darting, 37 N. Y. State Rep., 335, enlarges the construction to be given the act of 1885.

It has not been held in any case in this court, that I am aware of, that a statute making a tax deed, after a certain time designated in the statute, conclusive evidence of every fact which ought to exist in order to create a good title under such deed, would be a valid exercise of legislative power as against the original owner who had always been in possession of his land and of all his rights growing out of it, and whose possession remained undisturbed up to the time of the commencement of an action to obtain possession under a tax deed, and where the owner had, in fact, either paid his taxes before sale, or a merely, formal sale had been made, which was void for want of jurisdiction. The record of a deed from the comptroller, it is contended, would constitute no valid notice. It is claimed that one in possession of all his rights cannot be compelled to resort to legal proceedings, or else run the risk of losing them. The question does not arise in this case, for we hold, as in the case of Ensign v. Barse, supra, that the statute is not to be construed in that way.- There is very weighty authority for holding such a statute, in the case of one in possession, to be invalid. Cooley’s Constitutional Limitations (3d ed.), 366, and cases cited in note 1. We leave the matter without expressing an opinion in regard to it.

For the purpose of showing that the deeds of the comptroller were void, as given without jurisdiction, evidence was offered by defendants and received by the court, which tended to show that the taxes, for the non-payment of which the lands were sold by the comptroller, were assessed as against non-resident lands, while, at that time, they were occupied by some one representing defendants’ grantor. It was submitted by the court as a question of fact to be passed upon by the jury, whether the lands, at the time of the assessment, were occupied. There was also some evidence, on the part of the defendants, tending to show that the taxes upon these lands were paid to the collector before the return was made by the collector to the county treasurer.

The court instructed the jury that if the lands were occupied when assessed as non-resident lands, or if the taxes had in fact been paid before the return was made to the comptroller, then in the one case the assessment was void and in the other case all proceedings after the payment were void.

We think the court was right in both branches of his charge. The defect was jurisdictional in both cases. The act of 1885, chap. 448, is one by its title relating “ to the collection of taxes on lands of non-residents and to provide for the sale of such lands for unpaid taxes.” It is provided that occupied lands are not the lands of non-residents. 1 R. S., 389, § 3. And where lands of a non-resident of the county are occupied by a resident of the town, an assessment to the owner in the “ non-resident ” part of the roll is illegal, and the lands should be assessed to the resident occupant. People v. Wemple, comptroller, 117 N. Y., 77; 26 N. Y. State Rep., 720. If the lands were occupied the act of 1885 would not apply. We think there was sufficient evidence of occupancy to render it a question for the jury and it was properly submitted as such.

If the taxes had in truth been paid to the collector before he made return to the county treasurer, the right to proceed further toward the sale of the lands for non-payment of the taxes at once ceased. The comptroller had no jurisdiction to make the sale or to execute the conveyances of the lands in question. There was enough evidence of such payment to make it also a question for the jury. We think the evidence of payment to the collectors was properly admitted. Both these questions were of a character not covered by the act of 1885, and no error was committed in receiving evidence relative to them and which tended to show the facts upon which the defendants’ contentions were to be sustained.

We have carefully examined all the other questions raised by the learned counsel and set forth in his able brief, but we think no errors were committed by the trial court in disposing of them.

We are of the opinion that the judgment below is right, and it should therefore be affirmed, with costs.

All concur, except Finch, J., absent.


author: O’Brien, J.

text:
    George C. Unglish, App’lt, v. George W. Marvin, Resp’t.

      (Court of Appeals,

      Mled October 6, 1891.)

    1. Statute of frauds—Agreement to work rand on shares.
    A paroi agreement to work land on shares for more than a year is void under the statute of frauds, and occupancy thereunder will not create a tenancy from year to year.
    2. Same.
    The statute is available upon appeal, although not pleaded, under an exception to a finding that the plaintiff was entitled to recover damages for breach of the agreement, although it was void.
    3. Same—Former adjudication.
    A judgment of county court reversing judgment in summary proceedings is not conclusive on the parties in a subsequent action upon the agreement where it is not shown that the issues involved in the latter suit were litigated or adjudged in the former proceeding.
    Appeal from order of the supreme court, general term, fifth department, reversing judgment entered on the report of a referee in favor of plaintiff.

      John H. Chadsey, for app’lt; M. M. Waters, for resp’t.

       Affirming 28 N. Y. State Rep., 68.

   O’Brien, J.

The plaintiff sought, in this action, to recover damages for breach of a verbal agreement, made with the defendant, by which he agreed to occupy seven or eight acres of defendant’s farm, for five years from the spring of 1884, on the following terms and conditions: The defendant was to furnish for plaintiff’s use and occupancy the house and garden on the premises, the lower part of the barn, pasture for a horse and cow, such straw for feed and bedding as might be needed and the use of the horse in the busy season. Also to prepare so much of the ground as they might conclude to be desirable for the reception of plants and bushes, furnish one-half the sets of plants and bushes, pay one-half the cost of picking the small fruits and berries, and build a dry house. The plaintiff was to furnish half the sets of plants and bushes, plant to small fruits, various kinds of berries and currants, some seven or eight acres of the farm to be used for this purpose, to hoe and care for the berries then on the place, cultivate and care for the plants and bushes to be set out, to pick the berries and currants when ripe, market and sell them, to dry and sell those remaining, and to divide the money received on such sales, less the cost of picking, equally between himself and the defendant.

Under this agreement the plaintiff took possession of the premises March 6, 1884, and occupied them till April 22, 1886, when he was dispossessed and ejected under a warrant, issued by a justice of the peace, in summary proceedings, under the statute, instituted by the defendant. The plaintiff, after going into possession, performed various acts under the agreement and accounted for the fruit and other products sold to the defendant.

On the trial of the action before a referee the plaintiff recovered $2,153 damages on the ground that he had been deprived, by the defendant, of the use of the land for the balance of the five years, and of the fruits of the agreement.

The general term has reversed this judgment, and, as the plaintiff claims, improperly. The referee found that the paroi agreement, under which the plaintiff went into possession, was void, but that occupancy under it created a tenancy from year to year, which could only be terminated by limitation or" notice. That plaintiff’s term did not end till March 6, 1888, and that he was entitled to recover as damages the value of the remainder of the term. The agreement was not in writing and "was not to be performed within one year and hence it was void by the statute of frauds. But, notwithstanding this, the referee allowed the plaintiff to recover precisely the same as if the agreement had been in writing and was in all respects valid and binding on the parties. This result was accomplished by holding that occupancy, under the agreement, created a tenancy from year to year. We do not understand that the learned counsel for the plaintiff attempts to sustain this proposition, and it is, obviously, unsound. The relation of landlord and tenant, in any form, was not created either by the agreement itself or in consequence of any occupancy under it, Putnam v. Wise, 1 Hill, 234; Taylor v. Bradley, 39 N. Y., 129; Reynolds v. Reynolds, 48 Hun, 142; 15 N. Y. State Rep., 464. It has never been held that a tenancy from year to year can grow out of such an occupancy, though it may out of an occupancy under a void paroi lease for more than a year. Coudert v. Cohn, 118 N. Y., 309 ; 28 N. Y. State Rep., 684; Laughran v. Smith, 75 N. Y., 205 ; Reeder v. Sayre, 70 id., 180.

The counsel for the plaintiff contends that, as the statute of frauds was not pleaded and no point with respect to the said ■agreement made upon the trial, the defendant cannot raise that ■question now. That might be so, were it not for the findings of the referee that the agreement was by paroi and was void. The conclusion of law that the plaintiff was entitled to recover damages for breach of a verbal agreement held to be void, was excepted to by the defendant and this, we think, raises the question. In so far as the contract was executed between the parties, they have the right to retain what was received under it, according to its terms, but an action at law to recover damages, in consequence of a failure of either party to carry it out, cannot be maintained. Suppose the plaintiff, at the end of one or even of two years, left the farm, and refused to further perform the agreement, on what principle could the owner of the land be permitted to maintain an action against him for damages in not remaining on the farm for five years, and performing in all other respects the verbal agreement? The agreement is binding upon both parties, or not at all, and it is quite clear that it was void under the statute, and that neither party could maintain an action to recover damages for its breach against the other. The learned ■referee found that the plaintiff was ousted • from the premises by force of a warrant in summary proceedings, issued after judgment by a justice of the peace, and that this judgment was reversed lev the county court. Then he finds as a conclusion of law that .the order of the county court, reversing on the appeal the decision of the justice in summary proceedings, is conclusive on the parties. Probably what was meant by these findings was that the county court, in reversing the justice’s judgment, held that the agreement was valid, and that such decision was conclusive. That would probably be so if the record contained the facts necessary to uphold such a legal conclusion. The judgment of any court, having jurisdiction of the parties and the subject matter, to the effect that the agreement was valid and binding on them, would, though manifestly erroneous, conclude the parties on that question in any subsequent action. But the difficulty is, in this case, that the record fails to show what questions were litigated before and decided by the justice, or upon what grounds the county court reversed tlie judgment. A party relying upon a former adjudication must show that the point involved was decided in the former suit. Whatever the fact may be, we have no right to say, from the record before us, that the validity, or binding character of the verbal agreement, was adjudicated in favor of the contention of the plaintiff, either by the justice or the county court. The case does not contain the record of proceedings in either court, and there is no finding by the referee to show what was decided in the first instance, or upon what ground the reversal in the county court proceeded.

The order of the general term was right, therefore, and should be affirmed, and judgment absolute ordered for the defendant on the stipulation, with costs.

All concur, except Finch, J., absent


text:
    The People, App’lts, v. The Ulster & Delaware R. R. Co., Resp’t.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. Railroads—Forfeiture—Laws 1889, chap. 236.
    Chapter 236, Laws 1889, providing that nothing contained in the act of 1874 should be construed to i equire a corporation organized thereunder to extend its road beyond the portion constructed at the time it acquired title if the railroad commissioners certify that the public interests do not require such extension, and that if such certificate was made it should be a bar to any proceedings to compel the making of such extension or to annul the existence of the corporation for failure to do so, neither delegated legislative power to nor conferred judicial functions upon the railroad commissioners, and was valid.
    2. Same—Bar.
    The certificate of the commissioners filed in pursuance of the act of' 1889 is a bar to a proceeding to forfeit the franchise of a railroad for failure to make an extension.
    3. Same—Costs—Extra allowance.
    Taxes paid under chapter 361, Laws 1881, by a corporation do not furnish evidence of the value of the franchise upon which an extra allowance-can be based.
    Appeal from judgment and order of the supreme court, general term, third department, affirming judgment dismissing complaint, with costs, and reversing order granting an extra allowance of $1,500 to defendant.

      George Zabriskie, for app’lts; E. Countryman, for resp’t.

       Affirming 34 N. Y. State Rep., 983.

   Ruger, Ch. J.

This action was brought, in the name of the-People, by the attorney general, to determine the corporate existence of the defendant, upon the alleged ground that it had forfeited its charter through a failure to build a portion of the railroad track which its predecessor was authorized to construct The Rondout & Oswego Railroad Company was organized in 1866,. under the general railroad -act, to build, operate and maintain a railroad from Rondout, in Ulster county, to the village of Oneonta, in the county of Otsego; and during the period of its existence actually built a road from Rondout to Stamford; but failed to build that portion extending from Stamford to Oneonta. The defendant, the Ulster & Delaware Railroad Company, through a plan of reorganization adopted by the bondholders, under chapter 430 of the Laws of 1874, on the sale of the property of the railroad under a mortgage foreclosure in 1875, succeeded to the rights, property and franchises of the original company. It was for the failure of the defendant to complete the railroad originally projected by the Bondout & Oswego Company that this action was brought

The action is claimed to have been authorized by the provisions of § 1798 of the Code of Civil Procedure, providing that an action may, by leave of court, be brought by the attorney general to procure a judgment annulling the existence of a corporation created under the laws of this state, when, among other things, it “ has violated any provision of law whereby it has forfeited its charter, or become liable to be dissolved, by the abuse of its powers ; or forfeited its privileges or franchises by a failure to exercise its powers.” .

A violation of the provisions of this section apparently creates a cause of forfeiture and contemplates a punishment to be inflicted upon the offender, and not a benefit to be recovered by the prosecutor. Eo absolute right to enforce a forfeiture for the causes specified is conferred upon any party; but it is made to depend upon certain conditions. The statute does not execute itself; but requires the action of the attorney general to make it effective. Even the willful neglect of a railroad corporation to exercise all its franchises does not, of itself, terminate its corporate existence; but, to effect that result, the state, through its attorney general, must not only elect to enforce the forfeitures, but also procure leave from the court to bring an action for that purpose. Section 1798, Code Civ. Pro.; People v. A. & V. R. R. Co., 24 N. Y., 261; People v. Sugar Refining Co., 121 id., 582 ; 31 N. Y. State Rep., 781.

Such actions are not even then maintainable, except some public interest is involved, which requires the exercise of the franchise by the corporation. People v. Sugar Refining Co., supra.

It was, therefore, incumbent upon the state to show upon the trial of the action that a cause of forfeiture had not only been incurred by the defendant, but that it continued to exist and that its existence involved some public interest, and also that the court had authorized the bringing of the action. An action thus commenced is, even then, necessarily, always within the control of the state, as the sole party interested, to prosecute or abandon at its mere will and pleasure. People v. Phænix Bank, 24 Wend., 431. It is responsible to no one for the exercise of its discretion in this respect, and can, through the action of its legislature, not only discontinue an action brought by it, but can also repeal or confirm charters, waive or abolish causes of forfeiture, release rights of action, and limit the operation of its statutes upon individuals and corporations at its own will By enforcing the forfeiture of corporate existence the state receives no benefit and acquires no property, and by waiving such forfeiture it loses no privilege and interferes with no vested right. Having the absolute power, at will, to take the corporate life, it does not hamper its freedom of action by forbidding its servants, in specified cases, from prosecuting actions for forfeiture. It requires no exercise of judicial power to enable it to waive a forfeiture; but it may be effectuated by the mere expression of its will, and its will may be based '

' upon cause or utterly without one. Having absolute power, as the supreme representative of the People in respect to the question, it may do so with or without cause, or upon whatever terms or conditions it may see fit to impose.

It is claimed by the defendant that the state, by the enactment of chapter 286 of the Laws of 1889, amending chapter 480 of the Laws of 1874, has so changed the original statute that a reorganized railroad corporation no longer incurs the risk of forfeiting its charter when the railroad commissioners certify that no public interest is involved in the completion of a road as originally projected. The act is as follows: “Nothing herein contained shall be construed to compel a corporation, organized under this act, to extend its road beyond the portion thereof constructed at the time said corporation acquired title to such railroad property and franchise, provided the board of railroad commissioners shall certify that, in their opinion, the public interests, under all the circumstances, do not require such extension. If said board shall so certify, and shall file in their office such certificate, * * * said corporation shall not be deemed to have incurred any obligation to so extend its road, and such certificate shall be a bar to any proceedings to compel it to make such extension, or to annul its existence for failure so to do, and shall be final and conclusive in all courts and proceedings whatever.”

By this enactment the state has indicated in the most imperative form its will in respect to such actions. It thereby declared that the certificate of the railroad commissioners to the effect that no public interests were involved, should thereafter be a conclusive answer to any attempt to annul the existence of a reorganized railroad corporation for a failure to make an extension of its road. By this act the state devolved upon the railroad commissioners the duty, previously performed by its attorney-general, of inquiring whether the public interests required it to enforce an alleged forfeiture against a reorganized railroad corporation, and necessarily thereby deprived other departments of the government of the power of determining the preliminary question upon which the' action of the state in instituting and prosecuting such actions must be founded.

By leaving to another department of the state the determination of a question upon which its own action was thereafter to be controlled, it neither delegated legislative power to, or conferred judicial functions upon such department. It simply instituted an ex parte inquiry to determine its own future action, as had been the uniform practice of the state government for many previous years. The question whether the public interests are involved is always a condition precedent to the right of maintaining any action by the attorney-general for the forfeiture of corporate rights, and the state, by this act, says that it will hereafter leave this question, in cei’tain cases, to the railroad commissioners to determine, instead of to the attorney-general, by whom it had theretofore been decided. In other words, it has made the railroad commissioners’ certificate conclusive evidence of the non-existence of any sufficient ground of forfeiture. After the filing of such certificate, the law prescribing a forfeiture of its charter by a reorganized railroad company, for an omission to build an extension of its road, ceases to operate thereon and practically abolishes the penalty which the act of 1874 imposed in certain cases. This does not give to the act a retroactive operation; but, there being no clause in the act of 1889 saving ' pending prosecutions or existing rights from the effect of the statute, by settled rules, the abolition of the penalties left all actions in which judgments had not been obtained subject to the rule created by the amended statute alone. Nash v. White's Bank of Buffalo, 105 N. Y., 243; 8 N. Y. State Rep., 31.

We are of the opinion, therefore, that the certificate of the railroad commissioners, filed under the act of 1889, to the effect that no public interest required the extension of the defendant’s railroad, was a bar to this action.

We are also of the opinion that the order denying the motion for an extra allowance was correctly determined. By § 3253 of the Code of Civil Procedure the court is authorized, in difficult and extraordinary cases, where a defense has been interposed, to award to any party a sum not exceeding five per centum upon the sum recovered, or claimed, or the value of the subject-matter involved. It is conceded that the matter involved in the action was the existence of the defendant’s corporate franchise, and that alone, and a claim for an extra allowance must, therefore, be predicated upon the value of the franchise. The trial court awarded an allowance of $15,000 to the defendant and must, therefore, have determined that the corporate franchise was, at least, of the value of $30,000. The undisputed evidence showed that the' corporation paid no dividends on its stock and no interest on its debts, and that its gross earnings were insufficient to pay its operating expenses in the year 1889.

This evidence certainly did not show affirmatively that the corporate franchise had any definite value. It is, however, claimed that because the state imposed a tax upon “ the corporate franchise and business ” of the company under chapter 361 of the Laws of 1881, some evidence was furnished by the state of the value of the franchise. We are of the opinion that this tax furnished no evidence of the fact upon which a claim to an additional allowance can be based. The act pro /ides that in the case of non-dividend paying railroads, a tax shall be imposed upon their corporate franchise and business at the rate of “ one and one-half mills upon each dollar of a valuation of the capital stock.” This value is usually estimated by the comptroller from data furnished by the officers of the company, and in the year 1889, upon a capital stock of $1,152,100, was estimated to be of the value of $41,602.50, yielding a tax of about sixty dollars per annum. It is thus apparent that the sum assessed under this provision is an arbitrary amount, based upon the amount of its capital stock, without reference to the value of its franchise. A tax upon the corporate franchise and business of a railroad is also authorized, by the same act, to be computed upon its gross earnings at the rate of five-tenths of one per cent upon each dollar of such earnings.

It will thus be seen that both these taxes are imposed arbitrarily, upon certain data having no reference to the actual value of the franchise, and therefore furnish no evidence of such value. While the act of 1889 apparently assumes that the franchises and business of all railroads, subject to taxation, are of some value, it would be quite erroneous to make so vague and indefinite an assumption the basis of a judicial inquiry as to the actual value of a railroad franchise.

The judgment and order-appealed from should both be affirmed, with costs.

All concur, except FltrOH, J., absent.


author: Van Wyck, J.

text:
    Alfred C. Luce, App’lt, v. Thomas A. Knowlton, Resp’t.

      (City Court of New York, General Term,

      Filed October 15, 1891.)

    1. Contract—Breach—Proof.
    Defendant, contracted to deliver to plaintiff in New York 100 car loads of ice as soon as cars could be furnished. He delivered only thirty-six car loads. In an action for breach of said contract plaintiff failed to prove that any more cars were ready or obtainable and defendant testified that he did not receive any more cars and that he could not obtain any eligible for the route designated. Held, that there was a failure of proof and the complaint was properly dismissed.
    2. Evidence—Deposition taken at instance of adverse partt.
    It is error to refuse to permit the plaintiff to read the deposition of a witness taken at the instance of the defendant; but the error in this case was harmless, as it appeared on the motion for a new trial that the deposition contained no evidence supplying the failure to prove that cars were ready or obtainable.
    Appeal from judgment and order denying new trial, upon the minutes of the trial and the testimony of William H. Frost taken before John L. Brown, Esq., referee.

      Morris & Kennedy, for app’lt; Kneeland, Stewart & Epstein, for resp’t
   Van Wyck, J.

The complaint alleges an agreement made between March 26 and April 7th by defendant to deliver to plaintiff at New York 100 car loads of ice as soon as cars could be furnished for the same, for $3.25 per ton, and that said cars have at all times been ready to receive said ice, but that defendant failed to so deliver any part thereof except thirty-six car loads of eighteen tons each, to plaintiff’s damage of $2,000. The answer puts at issue all these allegations except the delivery of the thirty-six car loads and sets forth a counterclaim for $22.10, and the reply makes no denial but sets up new matter as a defence to the counterclaim. The plaintiff failed to clearly prove the contract as alleged and totally failed to prove that any cars were ready or obtainable for the shipment of any ice other than the thirty-six car loads received by him; and furthermore, the defendant, who was called on behalf of plaintiff, testified that he did not receive any cars at any time for the shipment of ice except what he sent to plaintiff; that there were some cars ready for him, but they were not eligible for the. route designated by plaintiff, and that he might have cars sent by other routes but not by the route designated by plaintiff.

The plaintiff’s counsel offered to read the deposition of William H. Frost, to which defendant’s counsel objected, upon the ground that it is taken by the defendant’s attorney and at the instance of the defendant, and is not binding,” and which objection was sustained and exception taken by plaintiff. The plaintiff’s case being closed, the motion of defendant to dismiss the complaint was granted and judgment directed in favor of defendant for $22.10, the amount of the counterclaim, which had not been denied by the reply, and plaintiff not having offered any evidence as to his affirmative defense to the same. The refusal to allow the plaintiff to read the deposition of William H. Frost was error, for the testimony of a witness taken at the instance of one party to an action can be read on the trial by the other party. The defendant consented that this deposition should be considered by the court upon a motion for a new trial, and the order denying a new trial recites that it was upon the minutes and this testimony denied. Whether or not this consent and recital would be such a waiver as to cure the error m refusing to allow it to be read on the trial, will be of no consequence in view of the fact that this deposition, which is a part of the case on appeal, and has been carefully examined, contains no evidence which can fill up the gap in the plaintiff’s case, that is, the failure to prove that cars were ready for or obtainable by defendant for the shipment of the ice, nor does it contain any evidence which will rebut the positive and affirmative testimony of defendant, when called on behalf of plaintiff, that no cars were ready, and that he could not obtain cars eligible for the route designated by plaintiff. The plaintiff failed to prove his case, even though this deposition is read as a part of it, and hence his complaint should be dismissed, and the direction of judgment for the counterclaim is proper, as the same was not denied and plaintiff made no proof of his alleged affirmative defense to the same.

Judgment and order denying new trial affirmed, with costs.

Newburger, J., concurs.