text:
    Deborah Taylor Lee et al., Pl’ffs, v. Charlemagne Tower, Jr., et al., Ex’rs, et al., Def’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 6, 1890.)

    1. Will—Trust—Equitable conversion. •
    Testator, a resident of Pennsylvania, by bis will, after giving bis wife the use of a house for life, "gave the rest of his estate to trustees on a trust which would be void as to real estate under the statute of this state against perpetuities. By the will he directed the trustees to hold and manage the estate and keep the capital invested ; to leave standing such investments as he should leave as long as they deemed it prudent; that any rents or royalties received from his coal or ore lands should be considered capital and invested; that none of such coal lands be sold while producing rents or royalties unless an exceptionally full price should be obtained and then only on consent of a majority of the beneficiaries; gave full power to his executors and trustees to sell any of his lands except as above stated; requested that his books be continued to be kept as he kept them so as to show what is derived from each investment; directed that the office if not used be rented or sold, and that at the termination of the trust the capital be divided among the beneficiaries. Held, that from the provisions of the will and the surrounding circumstances it cotild not be said that testator intended that his real estate should in all events be sold; that there was no equitable conversion, and that the trust was void as to lands in this state.
    8. Same—Effect of invalidity of trust on election of widow. .
    The interest given to the widow under the trust was greater than her dower, and she has exercised her election to take the provision made for her in the will. Held, that the trust having been held void as to lands in this state, she should be restored to her rights as to such lands, and is entitled to dower therein.
    Submission of a controversy under § 1279 of the Code of Civil Procedure.
    On the 24th July, 1889, Charlemagne Tower, then being a resident of the city of Philadelphia, in the state of Pennsylvania, died, leaving a last will and testament, made at Philadelphia and dated May 21, 1889. This will was duly admitted to probate at Philadelphia on the 81st July, 1889, and has been duly recorded in this state. At the time of his death Tower was the owner of certain real estate in this state, consisting of ten parcels, nine of which are in the county of Oneida and one in the city of Rochester, and the controversy here is over the construction of his will, so far as it may affect such real estate.
    In this will the testator, after providing for the payment of debts and funeral expenses and giving to his wife absolutely his' household goods, and horses and carriages, gave to her the occupancy and use of his residence in the city of Philadelphia, “ to continue, if she so desire, during her,natural life, and I direct that the taxes, water rents, and repairs thereon, during her occupancy, to be paid out of the income of my estate; if at any time she shall desire to remove therefrom, she can take the rents, issues and profits thereof while she lives; or, with her consent, the same may be sold by my executors and trustees, under the power herein vested in them, and she shall receive the income of the proceeds during her life.” Then, after naming his ten lineal descendants, being five children and five grandchildren, he proceeds: “I mention these names for the purpose of declaring my fixed intention and desire that the trusts, which are hereinafter declared of my residuary estate, shall remain in full force, undetermined, and operative, as to the capital of all my residuary estate, until the period hereinafter appointed for the general division and distribution of the capital thereof, as declared in the fifth item of this my will.
    Item 5. All the rest, residue and remainder of all my property and estate, whatsoever and wheresoever, real, personal or mixed, I give, devise and bequeath unto my son, Charlemagne Tower, junior; my son-in-law, Richard Henry Lee, and Julius A. Bailey, who, for many years, has been my trusted assistant and friend, whom I hereby constitute and appoint the executors of this my last will and testament, and to their heirs, assigns and successors in the trusts hereinafter set forth. In trust, nevertheless, to take possession of, hold, manage and appropriate the same and to collect,' receive, obtain and recover all the rents, issues, profits,; income, dividends and gains thei’eof and all the pz’oceeds and avails thereof, and to invest and keep invested the same and every part of the capital thereof so as to make the same as productive as reasonably can he, and to keep pz-oper accounts as hereinafter more particularly directed, in respect to the said trust property and the proceeds, avails and income therefi’om, hereby directing them to preserve such investments and securities as I shall leave standing in my name so long as they, my said trustees or their successors in the trust, shall deem prudent, and making such new investments as they, in their best judgment and discretion, shall deem advisable and advantageous to my estate, without confining themselves to such investments as the law directs for the investment of trust funds, hereby allowing them full power to select any investments or securities they may approve, except the capital stocks of corporations and obligations not accompanied with reasonable securities, with full power also to the said trustees to change any such investments, whether left by me or made by them, and to convert and reinvest the proceeds whenever and as often as they, in their judgment and discretion, may think most to the advantage of my estate. And I direct that the application of all the net income from my residuary estate, as I shall hereinafter define and describe it, shall be apportioned and divided between my wife and my children so long as they shall all continue living, m the manner following, that is to say: until the 1st day of June or the 1st day of December next following my decease there shall be paid unto my wife the sum of $1,000 per month and to each of my five children the sum of $500 per month until the said 1st day of December or 1st day of June, whichever shall be the next succeeding my death, shall arrive, and from after that date the whole of the net income of my said residuary estate as I shall herein define and describe it shall be divided and applied as follows:
    Four tenth parts thereof unto my dear wife, Amelia Malvina Tower, for and during the term of her natural life, and the remaining six tenth parts thereof shall be paid and applied in equal shares between .my five children, Charlemagne Tower, junior, Deborah Taylor Lee, wife of Richard Henry Lee; Emma Snyder, widow of Benjamin C. Snyder, deceased; Grace Williams Putnam, wife of Earl B. Putnam, and Henrietta Tower. At and after the death of their mother the whole net income of my residuary estate, as herein defined, shall be divided in equal shares among my said five children during their respective lives, each after their mother’s death receiving one-fifth part thereof. This receipt of net income by my children shall continue during their respective lives and shall be free from liability to their debts or the debts of any husbands they may marry, and from liability to attachment or seizure in execution and from all liability to be diverted from the personal use, benefit and support of themselves and their respective families by any process or device whatever. At and after the decease of each of my said five children, severally and successively, his or her share of the income from my residuary estate, as above designated, shall be appropriated and divided among the children and issue of deceased children of each one of my children as he or she may successively die, in the same shares and proportions they would take in distribution under the intestate laws of Pennsylvania from their deceased parent, and in like manner the share of income which may accrue to any of my grandchildren or more remote lineal descendants, under this my will, and who may die before the period appointed for the distribution of the principal of my residuary estate, shall in like manner accrue to their children and issue of deceased children as above provided, and such payment or application of the income of a deceased child’s or grandchild’s share among his or her children and issue shall continue until the arrival of the period for division of the capital of my said residuary estate, and if any one or more of my children or grandchildren shall die without leaving any issue to survive him or her, then the share of income theretofore appointed and payable to such decedent shall go to the other of my children or grandchildren (as the case may be) then living, and the issue of any others of my said children or grandchildren who may then be deceased, m the same way and manner in all respects as are limited and provided in respect to their original shares,, which shall simply be augmented thereby, but in all respects governed by the same provisions as applied to their original shares. Provided, always, however, that I authorize and empower each one of my children or grandchildren who may leave a husband or wife surviving him or her, by his or her last will and testament, or any writing in the nature thereof, by him or her signed, to make provision for any surviving husband or wife either of them may leave surviving, to continue during life, but not to exceed one-fourth of the income which would have been payable to such testator or appointer if he or she had remained living. The period I appoint for the distribution of the" capital of my estate and the termination of the trusts hereby created, is at the expiration of twenty-one years from and after the death of the last survivor of my children and grandchildren who may be born in my lifetime, if I may lawfully prolong such distribution until that period without violating the rule against perpetuities, which I do not design to violate. And if that period shall be beyond what the rule against perpetuities will allow, then I designate at the expiration of twenty-one years after the death of the last survivor of my above named ten children and grandchildren living at this date, and at such period I direct the division of all the capital of my residuary estate among all my lineal descendants then living, to each an equal fractional share thereof, without regard to their stock or the degree of their descent from me.
    Item 6. I consider all the rents arid royalties derived from any coal lands, or other mineral lands in which I shall be interested at the time of my decease as part of the capital or principal of my estate, derived by diminution of the estates out of which they come.
    And, whereas, I own interests in several tracts "of land producing anthracite coal, and may at the time of my decease own other properties from which rents or royalties from coal or minerals may be derived, I expressly direct that my executors and trustees shall hold, keep and invest, as part of the capital of my estate, all such rents and royalties as they may derive from my coal lands and other ore lands, and only appropriate and apply as income whatever shall be received by them as interest or income from the investments they shall make from time ’to time of such rents and royalties. I also further direct that all monies to be received from and out of any corporation, company or land association in which I have an interest as shareholder or otherwise, and out of the dividends declared by any ore ór mining company, corporation or association in which I shall be interested at the time of my death as a shareholder or otherwise, shall likewise be deemed part of the capital of my estate, to be kept invested as such by my trustees, and only the interest and income from such investments to be carried into the income account for distribution during the continuance of the trusts hereby created.
    And I further request them to continue the method I have adopted on my books of keeping a separate account with each colliery, mineral or coal property in which I or my estate shall be interested, and I further direct that my executors and trustees .shall not sell or dispose of any of my anthracite coal lands while they shall be producing rents or royalties unless exceptionally full prices shall be obtained therefor or some unforeseen contingencies may arise which shall make it plainly unwise for them to retain them in my estate; and before making any sale or disposition of the same a majority of those living and over age who at the time being shall have any beneficial interest in the income of my estate shall give their consent thereto in writing.
    Item 7. I authorize and empower my said executors and trustees and their successors in the trust to sell and dispose of any and all my real estate within any state or territory of the United States of America, and to make good and sufficient titles there- . for, in fee simple, unto the purchaser or purchasers thereof, without any duty or obligation on the part of said purchaser or purchasers to see to the application of the purchase money, which shall be paid to my said executors, and by them invested and applied according to the uses and trusts óf my will. In executing this power I except its application to the house and lot above devised to my wife for her life, unless she shall assent thereto in writing while she lives pond I especially request them to observe my requests in regard to the sale of any coal or mineral lands producing rents or royalties. I further forbid them to execute any deeds to purchasers from them which shall contain any warranty except against myself and all persons claiming under me, and not "to execute any deeds with general warranty.”
    He then provides that the trustees of his residuary estate shall „ at all times consist of not less than three persons, names two persons to fill the first two vacancies, and then provides that thereafter, whenever the number of the trustees shall be reduced below three, the surviving and remaining trustees shall fill the vacancy by appointment with the approval in writing of a majority of those for the time being entitled to share in the income of his estate and of full age, and shall have the appointees properly invested with the title to the trust property in conjunction with such surviving or remaining trustees, the investiture of title to “ be accomplished either by proper conveyances and reconveyances or by the action of the orphans court of Philadelphia county as may from time to time be deemed by counsel learned in the law most appropriate and effectual.” •
    He then provides for the compensation of the executors and trustees, “ on the whole of the personal property whereof I shall die seized or possessed, three per cent; on the proceeds of all real estate sold by them, three per cent; on all coal rents, royalties or payments derived from land associations, mining or ore eompaniés or associations and all the sources which I have directed to be deemed capital, three per cent; and on the annual income of my estate yearly, as collected, four per cent.” He gives to one of the executors additional compensation, directs that the keeping of the accounts of the estate shall be under Ms supervision, and requests “ that, for the sake of showing the results of each one of my operations and investments, he will continue to keep all the books of the estate in the manner I have kept them in my lifetime, by a continuation of the same accounts that I have kept, so as to show what shall be derived from each specific property or investment.,r He then provides for the manner in which all the monies that shall come into the hands of the trustees shall be deposited and drawn, and for the safe deposit of all securities of his estate, and appropriates for the use of the executors and trustees in carrying on the business of the estate his office building and lot in the city of Philadelphia, and provides that, if it shall become necessary or expedient to remove therefrom the office of the estate, the rent and expenses of other suitable offices shall be allowed to the executors and “ then the premises above designated may be rented, or sold for account of my estate under the powers hereby vested in my said trustees.” Then, after providing that the income on the residuary estate shall be free and clear of liability to be anticipated or assigned by any of the beneficiaries or diverted by any process-from being applied to their proper maintenance and support, he declares that “ no disturbance or distribution under any pretext is to be made of what I have declared to be the capital or principal of my residuary estate until the period which I have hereinbefore designated.” He then directed that the payments of income to-the beneficiaries should be quarterly and that the provisions made-in the will for his wife should be “ in lieu, substitution and satisfaction of her dower, thirds and all other interests in my estate, real, personal and mixed.” - '
    From the submission, it further appears that the lands, which are situated in this state, are farming lands and city and village ■ property, and none of them are mineral lands; that the real property, devised by the will, consists largely of lands in Minnesota, North Dakota and Washington, about 50,000 acres, but they are-chiefly undeveloped; that the inventory of the personal estate shows the valuation thereof to be something over $6,000,000. The five children, named in the will, all survived the testator and are now living, of full age and are parties to this action. The-widow also survived, is a party here and has accepted the provisions made in the will for her benefit in lieu of dower. The executors and trustees have taken possession of the real estate.
    The questions submitted are:
    1. Are the provisions of said will, so far as they apply to and affect the said real property situate in the state of New York, valid, and in accord with the statutes of said state relating to the suspension of the absolute power of alienation of the estate.
    If this question is answered in the affirmative, the judgment is to be rendered against the said heirs at law of Charlemagne Tower, deceased, and in favor of the said executor's and trustees, declaring the said provisions of the will valid.
    If this question is answered in the negative, then judgment is-to be rendered against the said executors and trustees, and in favor of the said heirs at law of Charlemagne Tower, deceased, declaring said provisions of the will void, and that' the said real property thereby descends to the heirs . at law of said Charlemagne Tower, deceased, as if he had died intestate.

      2. If the foregoing question is answered in the negative, and the provisions of the will, so far as they relate to and affect the said real property situate in the state of New York, are declared invalid, then the right of dower therein of the said Amelia Malvina Tower, widow of the said Charlemagne Tower, deceased, and her interest in said real property as such widow, are to be determined by the judgment rendered herein.

      Henry T. Utley, for pl’ffs; Earl B. Putnam, for def’ts.
   Merwin, J.

By the statute of this state in regard to real property (4 R. S., 8th ed., 2432, § 15), it is provided that the absolute power of alienation shall not be suspended for a longer period than during the continuance of not more than two lives in being at the creation of the estate. That the provisions of the will in question are repugnant to this statute and the trust therefore invalid as one relating to real estate, Brewer v. Brewer, 11 Hun, 147; S. C., 72 N. Y., 603; Amory v. Lord, 9 id., 413, is practically conceded by the defendants. They, however, claim that this is a case where the doctrine of equitable conversion should be applied, so that the will should be construed as if the whole estate was personalty, and that upon this theory the law of the state of Pennsylvania would govern in the construction and the trust under that law be valid. Phillips' Appeal, 93 Penn. St., 45. It seems to be conceded on the part of the plaintiffs that if there is an equitable conversion the "will is governed by the law of Pennsylvania and, therefore, valid. The question to be determined, therefore, is whether or not there is here an equitable convertion.

The general rule on this subject, as stated in White v. Howard, 46 N. Y., 162, is that to constitute a conversion of real estate into personal, it must be the duty of, and obligatory upon, the trustees to sell it in any event; that such conversion rests upon the principle that equity considers that as done which ought to have been done; that a mere discretionary power of selling produces no such result.

There is here no express direction to sell, but the point of the defendants is that the evident design and intention of the testator, as shown by the whole scheme of the will, and particularly by the directions as to the immediate investment of the whole of the capital of the estate, and as to the ultimate division of the capital, in connection with the terms employed, point to the immediate conversion of the estate into money.

In Phelps’ executor v. Pond, 23 N. Y., 69, it was said that where a testator authorizes his executors to sell real estate, and it is apparent from the general provisions of the will that he intended such estate to be sold, the doctrine of equitable conversion applies, although- the power of sale is not in terms imperative. In the same case in the supreme court, 28 Barb., 121, the subject is more fully discussed and. the same conclusion reached, it appearing that the most important purposes and provisions of the will called for such conversion, and to Be incapable of execution without it.

In Fisher v. Banta, 66 N. Y., 468, there was an absolute direction to sell. In Power v. Cassidy, 79 N. Y., 602, the testator gave all of his estate, real and personal, to his executors in trust, with power to sell, and out of the proceeds of sale, or of the income, to pay to his wife a specified annuity for life in lieu of dower, and his residuary estate he gave one-third to his wife, one-third to a nephew, and the balance to his executors, to be divided by them among such institutions of a certain class as the executors-should decide, and in such proportion as they should think proper. It was held -that there was an equitable conversion, it being said by Miller, j., that the estate could only be effectually divided and the purposes of the will efficiently carried out by converting the real into personal, and that any other construction would necessarily interfere with the accomplishing of the benevolent designs of the testator.

In Lent v. Howard, 89 N. Y., 169, it was held that when the-general scheme of the will requires a conversion, the power of sale, although not in terms imperative, operates as a conversion, and this will be deemed to be immediate, although the donee of the power is vested, for the benefit of the estate, with a discretion as to the time of the sale. In this case the executors, after paying-debts and carrying out certain specified provisions, were directed to invest all the balance and remainder of the estate in personal securities.

In Newell v. Nichols, 75 N. Y., 78, the testatrix gave her residuary estate to trustees, in trust, to set apart, sell or otherwise dispose of the same at their discretion, and invest the proceeds so as to make two funds of $15,000 each and one of $30,000, the income of each fund to be paid to different parties during life, and at the death of each respectively the principal to be paid to certain parties as in the will specified. The estate was not fully adequate to create the contemplated trust funds of $60,000. It was held that there was not an equitable conversion at the death of the testatrix, the power to sell being discretionary.

In Hobson v. Hale, 95 N. Y., 588, the will, after various legacies and clevises and after providing for the payment of life annuities to twelve different persons, contained this provision: “As to the residue and remainder of all my estate, both real and personal, not-herein otherwise disposed of, it is my will that the same be and remain in the care and custody of my said executrix and executors and trustees, and their successors, well and safely invested until the decease of the last survivor of the life annuitants, and that then the said residue and remainder, with all the accumulated interest thereof, shall be divided equally among my grandchildren, per stirpes.’,’ There was no express direction for the conversion of' the real estate into personalty or for its sale. It rvas held that there was no equitable conversion, it being said by Miller, J., that in order to uphold a conversion of real estate into personalty in the absence of express words, there should be such an implication of the testator’s design as to leave no question in regard to it.

In Chamberlain v. Taylor, 105 N. Y., 194; 7 N. Y. State Rep., 517, it is said that equity will never presume a conversion unless it is demanded to accomplish the lawful purposes expressed in the will of the testator.

In Asche v. Asche, 113 N. Y., 235 ; 22 N. Y. State Rep., 799, it is said that the necessity of a conversion to accomplish the purposes of a will is equivalent to an imperative direction to convert, and effects an equitable conversion.

In Scholle v. Scholle, 113 N. Y., 270; 23 N. Y. State Rep., 171, it is said that to" justify such a conversion, there must be a positive direction to convert, which, though not expressed, may be implied, but in the latter case only when the design and purpose of the testator is unequivocal and the implication so strong as to leave no substantial doubt.

Many other cases are cited in the elaborate briefs of counsel upon either side, but it is not important to consider them in detail. Enough have been referred to to indicate the general principles applicable to the subject It is a question of intention, and in such a case, as said by Judge Earl in Delafield v. Barlow, 107 N. Y., 540 ; 12 N. Y. State Rep., 494, precedents are not very valuable when the decision must be based upon the peculiar phraseology of the entire will.

In the present case the testator was the owner of a large estate, real and personal, and very evidently designed to have the body of it kept together as long as it could legally be done. The income was only to be used for the benefit of his widow and lineal descendants until a period that, under ordinary circumstances, would be far in the future. After making partial provision for his wife in connection with his dwelling house and the property connected therewith, all the rest of his property was placed in trust. He called it his residuary estate, and in his mind it was separated into capital and income. The capital or principal was to be held and preserved; the income was to bo distributed from time to time among the beneficiaries. The trustees were directed to hold, manage and appropriate the estate, collect the rents, issues, profits, income, dividends and gains, invest and keep invested the capital so as to make it as productive as reasonably could be. They were directed to preserve such investments and securities as he should leave.standing in his name so long as they deemed it prudent, and might make such new investments as they, in their best judgment and discretion, should deem advisable and advantageous to the estate, without being confined to such investments as the law directed for the investment of trust funds, and they were given full power to select any investments or securities they might approve, except the capital stocks of corporations and obligations not accompanied with reasonable securities.

They were given full power to change any such investments, whether left by him or made by them, and to convert and reinvest the proceeds whenever and as often as they thought most to the advantage of the estate. He directed that any rents or royalties which his trustees might receive from his coal or ore lands, as well as any monies received by them from and out of any corporation or land association in which he had an interest, and out of dividends declared by any ore or mining company in which he was interested, should be deemed part of the capital of the estate, and that his trustees should not sell or dispose of any of his anthracite coal lands while they shall be producing rents or royalties unless exceptionally full prices should be obtained, or some unforeseen contingencies arise which should make it plainly unwise for them to retain the property, and before any sale or disposition of the same ,a majority of the beneficiaries then living and over age shall give their consent in writing. He gave his executors and trustees power to sell any of his real estate within any state or territory, except that the house and lot devised to his wife for life should not be sold without her written assent, and except that he requested them to observe his requests as to sale of his coal lands. He requests that the books of the estate shall continue to be kept as he has kept them in his life-time, by a continuation of the same accounts that he has kept, so as to show what shall be derived from each specific property or investment. He provided that the office building and lot, if not used by the trustees, might be rented or sold. At the termination of the trust, he directed the division of the capital of the residuary estate among all his lineal descendants then living, to each an equal fractional share thereof.

These are the main provisions of the will, so far as the question before us is concerned. There is an evident design that the management of the estate should be continued in the same line upon which it had been managed. The accounts kept by him are to be continued. No radical change was contemplated. They were required to invest and keep invested the capital of the estate, so as to make it as productive as it reasonably could be, and still, in doing so, they were directed to preserve, as long as they deemed prudent, such investments and securities as the testator should leave standing in his'name. In making new investments they were not restricted to personal securities, but might select any investments or securities they approved except capital stocks of corporations and certain obligations. They could change and reinvest in their discretion.

Of the investments left by the testator, the real estate in this state is a part. It consists of farming lands, city and village property. Under the terms of the will, the trustees had a right, if they deemed it prudent, to preserve this investment during the entire continuance of the trust.

The anthracite coal lands, independent of the discretion of the trustees, could not be sold without the consent of a majority of the beneficiaries, at the time, of age. This property might, therefore, remain till the end of the trust. The office building and lot might be rented or sold. A large amount of western lands was held by the testator, said to be chiefly undeveloped. There is no specific reference to them in the will. There is nothing from which the inference can be fairly drawn that the testator designed an immediate sale of these. They were a portion of the corpus. or capital of the estate, a part of the testator’s investments. It was for the trustees to say when it was prudent to sell.

But it is said that the direction for a division at the close of the term is a controlling circumstance. It is not stated who shall make the division. Nor is the direction to divide and pay, as in some of the eases cited. Even then it would not necessarily follow that a conversion was intended. Chamberlain v. Taylor, 105 N. Y., 191; 7 N. Y. State Rep., 517. A sale of the coal lands might be prevented by the parties in interest. Whether or not a sale of the whole or a portion of the estate would be convenient for the purpose of division among the beneficiaries, would depend upon the number then of the beneficiaries and the condition then of the estate. A sale might or might not be desirable. We cannot assume that the testator would or did determine in his own mind those contingencies, in the absence of an express statement to that effect. The form of investment was left optional with the trustees, so that the testator could not intelligently determine that a conversion was proper or necessary in the distant future. The estate was large, the capital was likely to be increased in the accumulation as capital of rents and royalties of coal lands. It is not probable that the testator would design to have thrown upon the market, for conversion simply for the purpose of division, such an estate as his trustees then might have in hand. The will' was carefully drawn, and it may be said, with a good deal of force, that the testator expressed all he designed in the matter of sale, and that if he had intended a conversion at all events he would have said so.

The foregoing considerations lead to the conclusion that there is here no sufficient basis for saying that the testator intended that his real estate should, at all events, be sold and converted into personalty. It was designed by him to be left discretionary with his trustees, and therefore there is no equitable conversion.

We are further called upon to determine the right of dower of the widow of the testator and her interest in said property.

The submission states that she has accepted the provisions of the will in lieu of dower. Under the will she was entitled to receive during her life two-fifths of the nett income of the estate. That in substance would have given her two-fifths of the income or rents of the real estate in question. Of that she is deprived by the result of this action, and the question is whether, as against the heirs, she should not be restored to her legal rights so far as this property is concerned. This would be in accordance with the views of the chancellor in Hone v. Van Schaick, 7 Paige, 233, and of the supreme court in Manice v. Manice, 1 Lansing, 378. The case would be somewhat analogous to the eviction of a widow of her jointure, when, it is said, the effect is to remit the widow to her dower pro tanto. 2 Scribner on Dower, 2d ed., chap. 15, §84. -

I am of the opinion that the heirs are not in a position to enforce against the widow her election. Having as to this property repudiated the trust to the lessening of the widow’s income to the extent of more than the benefit of her dower, they have no right to say that, although their estate as heirs is restored, her esta'e as widow is not. Their repudiation of the trust to her loss places her in a position to insist as against them upon her legal right in' order to retrieve her loss. They cannot take away the consideration for her election and still say she is bound by it. They are restored to their rights as heirs and those rights are subject to her dower.

It follows that, in accordance with the submission, judgment should be rendered in favor of the heirs, declaring that the provisions of the will, so far as they apply to and affect the real property in this state, are invalid, and that the said real property descends to the heirs at law of the deceased as if he had died intestate, and also declaring that the widow is entitled to dower in the said real estate. Bach party to have costs as provided in the submission.

Hardin, P. J., and ¡Martin, J., concur.

Judgment entered in accordance with the opinion of Merwin, J., and to be settled by him upon the usual notice.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    The People, Resp’ts, v. Frank Fish, App’lt.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. Criminal law—Homicide—Premeditation.
    Frank Fish, while under the influence oí liquor, upon the repeated re- ' fusai of a companion, with whom he was carousing, one Cullinane, to shake hands wi h him, left him and walked away about thirty feet, and then walking rapidly back, with both hands in his overcoat pockets, as he came opposite Cullinane, drew his right hand from his pocket and stabbed him in the neck with a narrow iron blade, not sharp, but used for opening cigar boxes, saying, "take that,” and then went home and went to bed. From the wound thus inflicted Cullinane very soon died. Reid, that there was evidence sufficient to warrant the jurjr in finding that defendant intentionally killed Cullinane with premeditation and deliberation.
    2. Same—Intoxication no excuse.
    The fact that defendant was intoxicated furnishes him no excuse. If he was sober enough to form an intent and to deliberate and premeditate the crime, his responsibility is the same as if he had been perfectly sober.
    3. Same—Motive.
    It is not incumbent upon the prosecution to prove the motive of a crime in any case.
    4. Same—Evidence.
    The question propounded to a"physician called as a witness in behalf of the People: “ Taking this instrument as it is now, how much force would be necessary to drive it through the tissues you have described and into the vertebrae,” and the answer: “I should think it would take a great deal of force,” were competent.
    ' 6. Same—Photographs.
    A photograph, proved to have been accurately taken, of the place where the homicide was committed, and also a photograph of the dead man’s head and neck, showing the wound, are competent as evidence.
    6. Same—Code Grim. Pro., § 8, sued. 3.
    The preliminary proof excusing the production of a witness against the prisoner and allowing his testimony taken before a magistrate under § 8, subd. 3, of the Code Crim. Pro , is addressed to the trial court, and where it is tacitly assented to by the defendant’s counsel that the proof was sufficient, the objection that such preliminary proof was not sufficient to authorize the reading of the deposition is not available on appeal to this court.
    Appeal from judgment of the Ontario oyer and terminer, convicting defendant of the crime of murder in the first degree.

      Oliver 0. Armstrong, for app’lt; Maynard N. Clemeni, disk att’y, for resp’ts.
   Earl, J.

The defendant was convicted of murder in the first degree on the 24th day of May, 1890, for killing John Oullinane on the prior 26th day of January, at Canandaigua in this state. There is no substantial dispute about the facts of the case. The defendant, *at the time of the homicide, was about twenty-four years old, five feet five inches in height, weighed about one hundred and forty pounds, and was a painter by occupation. Oullinane was a moulder, over six feet in height, weighed about one hundred and ninety pounds, and was about thirty years old, and they were both married and householders. The 25th of January was Saturday, and about six o’clock in the evening the defendant and his brother, John E. Fish, and Oullinane quit work, and each went to his home. A few moments before ,nine o’clock John E. Fish and Oullinane went to a saloon kept by Ryan, where they were soon joined by James Oullinane, a brother of John. The defendant left his home about eight o’clock, and about nine o’clock he met two young men, who had with them a pint of whiskey, and they invited him to share it with them. They each drank out of the bottle, and then the defendant drank about a teacup full, the balance remaining therein.

Soon thereafter he also went to Ryan’s saloon, and he and his brother and the two Cullinanes remained there talking on various subjects and drinking beer together until nearly a quarter to twelve o’clock. While in Ryan’s saloon the defendant offered to shake hands with John Oullinane on two different occasions, and Oullinane declined to take his hand. About twelve o’clock Oullinane and the defendant and his brother left Ryan's saloon and went to a saloon kept by Charles McCarthy, and there they drank some beer, and the defendant and the deceased danced, and after remaining there about fifteen minutes the three persons left the saloon together and proceeded down the street to a barber shop, and while going down the defendant stated to his brother that he would go and stay with him. They stopped opposite the barber shop and John E. Fish asked his companions to go in while he had his hair cut. Oullinane declined, saying he thought he would go home, and John E. Fish shook hands with him and bade him good night. The defendant then offered to shake hands with Oullinane, and he drew his hand away. Then the defendant asked him if he ever did anything to him. He replied that he had not. The defendant then said to his brother John E. Fish, “ All right, you are a brother of mine ; that settles you and me.” John Fish replied: “All right You go to hell.” The defendant then started up street and Oullinane started to follow him, and went ten or fifteen feet up the walk in the direction the defendant was going, and then turned and came back in front of the barber shop and stopped, and he said in a low tone, evidently inaudible to the defendant, “ The son of a bitch.” The defendant after going about eighty feet came back walking rapidly down the street, with both hands in his overcoat pockets, and as he came opposite the deceased he drew his right hand from his pocket, turned towards the deceased and dealt him a blow on the right side of the neck, saying at the time, “ Take that,” and then ran down the street in the direction of his home. The instrument with which he struck the blow was a narrow iron blade used for opening cigar boxes. It was not sharp, and was not made for the purpose of cutting anything, hut merely for the purpose of prying off the covers of cigar boxes. The blow was dealt upon the neck a little below the jaw, and the instrument penetrated about four inches in depth,passing through the larynx and into the hard bone of the vertebrae more than half of an inch. From the wound thus inflicted Cullinane very soon died. The defendant, after striking the blow, went directly to his home and soon thereafter undressed and went to bed. Within an hour after the fatal blow had been dealt officers, went to his house and arrested him. He was at once taken before a police magistrate and there he appeared, to some extent, to be unconscious that he had committed the homicide. All the witnesses who saw him shortly before and after the homicide testified that he was somewhat intoxicated ; he was able, however, a few minut-es before, to dance in McCarthy’s saloon, and he was sober enough to run away, go home, undress and go to bed immediately after striking the fatal blow. After his arrest his conversation showed that he was aware, at least, that he had committed some wrongful act. It does not appear that the defendant and the deceased were, prior to the evening in question, at all intimate or familiar with each other. There is no evidence showing what their relations were, and it does not appear that there was any animosity between them, and no explanation was given on the trial showing why the deceased refused the proffered hand of the defendant on the three occasions when it was offered.

The learned counsel for the defendant claims that upon this evidence the defendant ought not to have been convicted of murder, hut that he should have been convicted only of manslaughter, and he claims that we should grant a new trial to the defendant under § 528 of the Code of Criminal Procedure, which authorizes this court, when the judgment is of death, to order a new trial, “if it he satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below.” This section has been under consideration in this court several times. People v. Driscoll, 107 N. Y., 417; 12 N. Y. State Rep., 253; People v. Cignarale, 110 N. Y., 23; 16 N. Y. State Rep., 155; People v. Lyons, 110 N. Y., 618; 16 N. Y. State Rep., 660 ; People v. Kelly, 113 N. Y., 647; 22 N. Y. State Rep., 969; People v. Stone, 117 N. Y., 480; 27 N. Y. State Rep., 823.

It does not confer upon the court power, arbitrarily, to grant a new trial whenever it thinks justice may require it, but its jurisdiction in such a case is to be exercised according to settled rules of law. If there is a conflict in the evidence, or different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts, and their determination should not be interfered with unless we can see that such determination was against the clear weight of the evidence, or was influenced in some way by passion, prejudice, mistake, perversion or corruption.

In the case of the People v. Cignarale, supra, Andrews, J., said: “ It is a cardinal principle in our jurisprudence that the jury is the ultimate tribunal for the investigation and determination of questions of fact It is no more the province of an appellate court than of the court of original instance to determine controverted questions of fact arising upon conflicting evidence. Neither can lawfully usurp the appropriate function of the jury, and neither can substitute its own judgment for that of the jury where the facts are reasonably capable of diverse or opposing inferences.” The People were bound to show that the defendant-intentionally killed Cullinane with premeditation and deliberation, and we think there was evidence sufficient to warrant the jury in so finding. The defendant was undoubtedly somewhat intoxicated and was probably angered by the refusal of the deceased, a minute or two before the fatal blow was struck, to shake bands with him. It is probably true that if he had been perfectly sober that circumstance would not have provoked him to violence. But the motive which would have had comparatively little influence upon a sober man evidently aroused his animosity, and after he had passed down the street a short distance he returned near to where e the deceased was standing, and with this dangerous instrument in his hand he spoke to his own brother so as not to attract the attention of the deceased, and then suddenly turned and with a swinging blow, and with, great force and violence, plunged this blade into the throat of the deceased, the place where it would be most likely to produce a fatal effect. That he returned for the express purpose of inflicting the blow cannot be doubted. That he deliberated upon his purpose while he was returning and when » he approached the deceased and struck the blow is equally clear. We think the inference may fairly be drawn that he then and there intended to take the life of the deceased.

The fact that the defendant was intoxicated furnishes him no excuse. Section 22 of the Penal Code provides that “No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent, is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent, with which he committed the act.”

The only materiality, therefore, of the evidence of the defendant’s intoxication is its bearing upon the questions of deliberation, premeditation and intent. "If he was sober enough to form an intent and to deliberate and premeditate this crime, then his responsibility is the same as if he had been perfectly sober. In weighing the evidence as to premeditation and deliberation the jury were bound to take into account the condition of the defendant, and they were só instructed. But if while somewhat intoxicated he still deliberated upon and premeditated the act which he intentionally committed, the crime is murder in the first degree.

It is claimed that the prosecution proved no motive for the crime. But it is not incumbent upon the prosecution to prove the motive of a crime in any case. It may be impossible to discover a motive hidden in the human breast and yet the crime may be proved beyond a reasonable doubt. Here, while the motive would be deemed extremely inadequate, yet there was some motive which we must assume acted upon the mind of the defendant in inducing him to deal the fatal blow, and that was the refusal of the deceased, thrice repeated, to take his hand when extended to him for a friendly greeting.

It is further said that there was no proof of any intent on the part of the defendant to kill Cullinane. All the facts were proved. The circumstances under which the blow was dealt, what the defendant then said and did, his conduct afterwards, the natui’e and force of the blow and the character of the instrument used, all this evidence was before the jury, and it was for them to determine whether the defendant in dealing this fatal blow intended to kill.

We, therefore, see no reason in the exercise of any discretion conferred upon us under § 528 of the Criminal Code for granting a new trial, and it only remains further for us to consider the questions of law to which our attention has been called by the defendant’s counsel.

Dr. Hollenbeck, a physician and surgeon, called as a witness on behalf of the People, after testifying that he'had examined the wound and made a post mortem examination thereof, was asked this question: “ Taking this instrument as it is now, how much force would be necessary to drive it through the tissues you have described and into the vertebrae?” This was objected to on the part of the defendant, and the witness was permitted to answer as follows: “I should think it would take a great - deal of force;” and substantially a similar question was put to and answered by another physician. We think these questions and answers were competent. The amount of force necessary to drive such a blunt instrument through the tissues, muscles, arteries, windpipe and into the vertebrae is not a matter of common knowledge. But physicians and surgeons who have dissected and cut into the human body are better able to tell the resisting force of those parts than other people, and are, therefore, experts who are competent to give opinions on the subject. But in any event the answers were harmless, because one of the physicians answered that it would take a great deal of force, and the other answered that it would take a very heavy blow; and that it would is very obvious from the bluntness of the instrument and the parts through which it passed.

The district attorney presented in evidence a photograph of the place where the homicide was committed, and also a photograph of the dead man’s head and neck, showing the wound, and it is now claimed that this evidence was incompetent. It was proved that the photographs were accurately taken, and were true representations of the barber shop and the location of the wound, and such evidence is now everywhere held to be ■competent. Ruloff v. The People, 45 N. Y., 213; Cowley v. The People, 83 id., 464; People v. Buddensieck, 103 id., 487; 3 N. Y. State Rep., 664; Archer v. N. Y., N. H. & H., R. R. Co., 106 N. Y., 589 ; 11 N. Y. State Rep., 32.

The defendant was permitted to give evidence of his intoxication, of his appearance, his acts, and all that he said before and .after the commission of the homicide, and his witnesses were permitted to give their opinions as to his condition. Among the questions asked by his counsel was this, put to the police justice before whom the prisoner was brought soon after the homicide: “ On this occasion from what you observed of Fish when you brought him out there, do .you believe he was in the condition in which he comprehended the situation, and what was transpiring there fully?” This question was objected to on behalf of the People, and the objection was sustained. It is now claimed that the witness should have been permitted to answer the question. The witness was not an expert. He was not asked for any fact, but for his opinion or belief. He should have testified to the facts, and then it would have been for the jury to determine whether the prisoner comprehended the situation and what was transpiring there.

The same witness was asked this question: “ State how he appeared?” And he answered: “He appeared a little astonished.” This was objected to on behalf of the People, and •stricken out. The defendant was permitted to obtain from the same witness evidence showing that the defendant was apparently astonished at the charge of murder made against him, and that he appeared to be intoxicated, and the witness was permitted to testify as to all the facts in relation to his ' appearance. But whether the evidence stricken out was competent or not, it was of no importance and had no material bearing, and added nothing to the force of the other evidence upon the same subject. Ho exception was taken to the ruling of the court striking it out,' and we think no harm came to the defendant from striking it out.

Maltman, one of the important witnesses for the People, was sworn upon the preliminary examination before the police justice. The defendant was there with counsel, who cross-examined the witness. The examination of the witness was reduced to writing, read over to him, subscribed by him and properly certified. The witness was subpoenaed to attend the trial, and not appearing, the district attorney against the objection of the defendant’s counsel was permitted to read the deposition in evidence.

He claimed the right to read it under subdivision 3 of § 8 of the Code of Criminal Procedure, which provides that the defendant in a criminal action is entitled, (3), “ To produce witnesses in his behalf, and to be confronted with the witnesses against him in the presence of the court, except that where the charge has been preliminarily examined before a magistrate, and the testimony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine, the witness, or where the testimony of a witness on the part of the People has. been taken according to sections two hundred and nineteen and two . hundred and twenty, the deposition of the witness may be read upon it being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found in the state.”

It is now objected that it was not satisfactorily shown to the court that the witness was dead, or insane, or could not with due diligence be found within the state. The trial of the defendant commenced on the 19th of May, 1890, and resulted in his conviction on the 24th day of the same month. Prior to that, and on the 24th day of April, the district attorney delivered to the under sheriff of the county a subpoena to serve upon Maltman, and on the 25th day of April he served it upon him in the village of Canandaigua, at the place where he was then working. Some days after the service of the subpoena the under sheriff met the witness in the streets of Canandaigua, and told him. that he had been subpoenaed, and that he would expect him to be present in court. He said that the week before court convened he wanted to go to the home of his sister, who lived about two and a half miles from the village, and that on Monday morning, the 19th of May, he would be at court. On the 19th, and also on the 20th, his name was called in court by the crier, and he did not answer. Monday morning the under sheriff made inquiries of his relatives and other people, and not being able to learn anything about him, on Tuesday he drove to the residence of his sister, where he said he was going, but did not find him, and could not learn anything of his whereabouts. Further inquiry was made, but the officer was not able to learn anything about him, or to find him.

Upon this evidence the court held that the district attorney had established prima facie that due diligence had been exercised by the district attorney to find the witness and that he could not be found. No exception was taken to the ruling of the court and no claim was made at the trial that the preliminary proof was not sufficient to authorize the reading of the deposition. It is quite true that the preliminary proof was not very satisfactory, and that the diligence used to find the witness and procure his attendance was not very great, and yet it is difficult to see what more the under-sheriff could have done to procure his attendance. It does not appear that the officer had any reason to suppose that the witness was at any other place than those where he had inquired for him, or that any diligence which he could use would discover him. It is quite a valuable right to a prisoner to be confronted upon his trial with the witnesses against him, so that he may cross-examine them and the jury see them and thus judge' of their credibility, and he should not be deprived of this right without a strict compliance with the statute. But the preliminary proof is addressed to the trial court, and if based upon evidence legitimately tending to establish the facts required by the section of the Code referred to, his decision should not be lightly interfered with. But here it was tacitly assented by the defendant’s counsel that the proof was sufficient, as he made no objection on that ground. If he had then and there made such objection and required further proof, it is possible that the district attorney might and would have furnished it. We are, therefore, of ■opinion that the objection that the preliminary proof was not sufficient to authorize the reading of the deposition, is not now available to the defendant.

It is further objected that the provision of the section of the Code referred to is in violation of article 6 of the amendments of the Federal Constitution, which provides that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him. There is no such provision in our state constitution, but under the Bill of Rights, 1 R. S., 94, § 14 (part 1, chap. 4, § 14, of the Revised Statutes), it was provided that in all criminal prosecutions the accused has the right to be confronted with all the witnesses against him.

This was, however, a statutory enactment, and the legislature could repeal or alter it. The provision in the Federal constitution, as originally adopted, had reference only to prosecutions in the Federal courts, and had no reference whatever to prosecutions in the state courts. Withers v. Buckley, 20 How., U. S., 84; United States v. Cruikshank, 92 U. S., 542; Walker v. Sauvinet, id., 90; Pearson v. Yewdall, 95 id., 294. But the learned counsel for the defendant claims that the sixth article has been made applicable to prosecutions in the state courts by § 1 of the fourteenth amendment of the Federal constitution, which provides that “all persons horn or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. Ho state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United "States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

We do not think that this section has the effect claimed for it. It was never one of the privileges or immunities of a citizen of the United States to be confronted with the witnesses against him in a state court. That was a privilege secured to him by the Federal constitution, and, as we have seen, was confined strictly to the Federal courts. The section of the Criminal Code referred to does not attempt to interfere with any privilege or immunity which a citizen of the United States ever enjoyed under the Federal con■stitution. All citizens of whatever race or color are secured the right to be confronted with their witnesses in every prosecution in the Federal courts. But the states may modify that privilege in all prosecutions in state courts, provided that equal protection and ■due process of law be left to the citizen. '

But even if we are wrong in this construction of the fourteenth amendment, we think it is clearly settled by numerous adjudications that the right of the defendant to be confronted with the witnesses, within the meaning of the Federal constitution and the •bill of rights, was not denied to him. The evidence of the witness was taken in his presence, where he had the opportunity to cross-examine him, and where he did in fact cross-examine him, and thus he had all the protection that the bill of rights and the constitution were intended to secure him. This constitutional provision was not intended’ to secure to the accused person the right to be confronted with the witnesses against him upon his final trial, but to protect him against ex parte affidavits and depositions taken in his absence, as was frequently the practice in England at an early day. It was never regarded as an invasion of the fundamental rights of an accused person to read depositions upon his trial if at some stage of his case he could be confronted with and cross-examine the witnesses to be used against him.

In Cooley’s Constitutional Limitations, 5th ed., 389, the learned ' author, speaking of this constitutional provision, says: “If the witness was sworn before the examining' magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there were a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or. sick and unable to testify, or has been summoned but appears to have been kept away by the opposite party.”

And for this he cites numerous authorities. This precise question was under consideration in the case of People v. Williams, 35 Hun, 516, and was disposed of in accordance with these, views. See, also, Sullivan v. Haug, Michigan supreme court, October 17, 1890.

The court charged the jury, among other things, as follows: “ If- the defendant, while in the possession of his faculties, sufficiently to conceive a design, voluntarily and wilfully did an act which had a direct tendency to destroy another’s life, the jury would have the right to prestíme from that fact that he intended the natural consequences of his own act.” This portion of the charge is free from error. It is, in substance, that if the prisoner was sufficiently in possession of his faculties to form an intent, and voluntarily and Wilfully did an act which had a direct tendency to destroy another’s life, the jury would have the right, not that they were bound to do so, to presume that he intended the natural consequences of his act, and this, we believe, is a correct statement of the law. It is quite true that the prosecution is bound to prove all the facts constituting the crime with which the prisoner is charged, and that the burden rests upon the People from the beginning to the end of the trial to establish, beyond a reasonable doubt, every fact essential to the conviction of the defendant. But this rule was not violated by the charge referred to.

The jury were bound to find that the defendant was capable of forming an intent, and that he did form the intent and that he wilfully and voluntarily dealt the blow, and they were permitted to infer or presume from these facts that he intended the fatal blow which he inflicted. The court did not lay down the rule that "they were bound as matter of law to presume it, or that the law implied that the defendant intended the natural consequences. of his act Therefore, the rules laid down in Stokes v. People, 53 N. Y., 164; People v. Baker, 96 id., 340; People v. Conroy, 97 id., 62, were not violated. In York's case, 9 Met., 103, Chief Justice Shaw said: “A sane man, a voluntary agent, acting upon motives, must be presumed to contemplate and intend the necessary, natural and probable consequences of his acts. If, therefore, one voluntarily or wilfully does an act which has a direct tendency, to destroy another’s life the natural and necessary conclusion from the act is that he intended so to destroy such person’s life. So if the direct tendency of the wilful act is to do another some great bodily harm, and death in fact follows, as a natural and probable consequence of the act, it is presumed that he intended such consequence, and he must stand legally responsible for it. So where a dangerous and deadly weapon is used, with violence, upon the person of another, as this has a direct tendency to destroy life, or do some great bodily harm to the person assailed, the intention to take life or do him great bodily harm is a necessary conclusion from the act.”

It is also claimed that the following portion of the charge of the judge is erroneous : “ Before coming to consider more directly the question of premeditation and deliberation, it is perhaps desirable, as leading up to that consideration, that we examine one or two other points which present themselves. Was there any design on the part of the defendant to kill this man, John Oullinane, and does the evidence in the case furnish any motive for such design on his part ?

•It has been said, and very properly, in your hearing, that where a man who is in possession of his faculties deliberately takes the life of another, the law presumes that he intended the natural consequences of his act, and, therefore, if you find that the defendant did take the life of John Oullinane in such a manner and under such circumstances as tó show deliberation, the presumption arises at once that he intended to take his life as he did. The law raises that presumption against the defendant, provided you shall find that he was in the possession of his faculties and that he took the life of John Oullinane with premeditation and deliberation.”

This portion of the charge involves the self-evident proposition that if the defendant with premeditation and deliberation took the life of Oullinane that he intended to take it. That, so far as we can see, must be universally true of all the acts of an intelligent person. Whatever is done with premeditation and deliberation must be done intentionally.

Other portions of the charge were objected to, and several requests to charge, made on behalf of the defendant, were refused. We have carefully examined the whole charge as given, and all the requests refused, and we think no error was committed by the learned judge. His charge was eminently fair and just to the defendant, and fully and fairly instructed the jury, so that there could have been no misconception as to the law governing the case.

A careful consideration of the whole case has constrained us to believe that no error was committed at the trial to the prejudice ' of the defendant. We think all the elements, constituting the crime of murder in the first degree were proved by uncontradicted evidence.

The crime was undoubtedly committed, like many others, under the influence of intoxicating liquor, but for which the deadly blow would not have been dealt. We sit here to administer and to uphold and enforce the principles of law and justice applicable to the cases presented to us, uninfluenced by sentiments of commiseration or of mercy. It may be that if we had jurisdiction to listen to an appeal for mercy we would relieve the defendant from the extreme penalty of the law. But such relief can be given only by the governor of the state, to whom, very properly under the circumstances of this case, an application can be made.

It remains for us only to affirm the judgment of conviction.

All concur.


author: Parker, J.

text:
    Alice Winans, App’lt, v. Ross R. Winans, Resp’t.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    1. Divokce—Motion fob trial by jury after reference ordered— Appeal.
    After a plaintiff in an action for divorce has consented to a reference in which a hearing has been had, it is discretionary with the court as to whether it will grant a motion, made on her behalf, to vacate the order of reference, and send the case to a jury, and the refusal to do so will not be reviewed by this court.
    3. Same—Discontinuance in legal discretion of court.
    The court has the discretionary power to refuse leave to the plaintiff to discontinue whenever circumstances exist which afford a basis for the exercise of legal discretion, and has but to consider whether anything' has occurred since the commencement of the action which would so far prejudice defendant’s interest in the event of a discontinuance as to require a denial. b
    3. Same.
    This rule, however, cannot be strictly applied in divorce cases because the public is regarded as a party and must be treated as such by the court, and because of the public interest the court is invested with a wider .discretion.
    Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment in favor of defendant, entered June 17, 1886, upon the report of a referee in an action for absolute divorce. The notice of appeal also brings up for review an order of the special term denying plaintiff's motion for leave to discontinue the action without payment of costs or allowance, or on such terms as the court should impose. •

      Frederick William Sherman, for app’lt; James C. Carter, for resp’t.

      Affirming 6 N. Y. State Rep., 810, 813.

   Parker, J.

Thp complaint averred that theparti.es intermarried on or about the 31st-day of May, 1871, at the city of New York; that subsequently he committed adultery, and demanded judgment that the bonds of matrimony between them be dissolved, and she be awarded alimony and costs of the action. The answer put in issue both the averments of marriage and adultery.

Subsequently, issues were duly prepared and settled for trial by a jury, but before the cause was reached upon the calendar, the parties stipulated that it be referred. The court approving of such action designated, by order, a referee to hear and determine the issues.

The referee, after the evidence was submitted, found as facts: 1. “That the plaintiff was not, on the 31st day of May, 1871, or at any other time, at the city of New York, or elsewhere, married to the defendant.” 2. “ That the plaintiff did not, at the time and place stated in the complaint, commit adultery with the person named in the complaint; ” and as a conclusion of law, “that defendant is entitled to judgment against the plaintiff, that the complaint be dismissed upon the merits, with costs.”

The general term affirmed the judgment entered thereon, and the findings therefore are not subject to review in this court, inasmuch as they were supported by evidence.

The ap¡Dellant has called our attention to several .exceptions taken to rulings of the referee in the admission and rejection of testimony. We have given to each of them careful consideration, and have determined that no error was committed justifying a. reversal.

Two other questions are pressed upon our attention which we shall now consider.

1. After one hearing before the referee at which the plaintiff was partially examined, a motion was made in her behalf to vacate the order of reference to the making of which she had originally consented and send the case to the jury. This motion was denied, and if it be assumed that plaintiff’s appeal brings up the order entered thereon it cannot avail her here. It did not affect a substantial right. Once she had the right to demand a trial by jury, but that right was gone before the making of the motion, at the instance of her counsel and by her own consent. She was not, therefore, before the court demanding a right, but petitioning for a favor, praying to have restored to her that which she had waived because at the time she regarded it beneficial to her interests to do so.

The court in the exercise of its discretion refused to relieve her from the consequences of her own act, and such refusal, under the circumstances disclosed, will not be reviewed by this court.

2. After the making of the motion to vacate the order of reference the plaintiff moved the court for leave to discontinue the action without the payment of costs or allowance, or on-such terms as the court may decree. The denial of that motion the plaintiff assigns for error. She asserts that while the court had power to impose terms as a condition of discontinuance, it was without authority under the circumstances disclosed by the papers before it to prevent it. That the absolute right to discontinue resided in the plaintiff, the court being merely vested with the discretion to determine what if any terms should be imposed, and this right may be made available at any stage of the action, even after trial is actually begun.

Carleton v. Darcy, 75 N. Y., 375, .was an action of ejectment. The plaintiff recovered judgment and was put in possession of the premises; defendant paid the costs and took a new trial under the statute; thereupon plaintiff, still retaining possession, moved for leave to discontinue on payment of costs.

The motion was denied, and on appeal this court said : “ That court has refused his request, and on appeal from the order he claims that he has the right, of his own head, to discontinue his action on those terms. But there is no valid discontinuance of an action without an order to that end. That order, whether ex parle or on motion, must be an order of the court, and, as its order, within its control. It is true, as a general rule, that a plaintiff may, upon the payment of the costs of the defendant, enter an order of discontinuance of the action, and give notice thereof, and that the cause will be thereby discontinued. Yet the court has always kept and exercised the right to control such an order, as well as any other order put upon its records. And where circumstances have existed which have made it inequitable that the plaintiff should, of his own head and without terms, discontinue his action, they.have refused his motion to do so altogether, or except on terms; or when he has entered an order ex parte, have opened it, and made it conform to what was proper under the circumstances. * * * So that the court to which the motion for leave to discontinue was addressed had a discretion, under all the circumstances of the case, whether or not to refuse it.” The rule thus enunciated has been frequently alluded to and applied by the courts. Carleton v. Darcy, 75 N. Y., 375; Matter of Water Works, 85 id., 478; Van Alen v. Schermerhorn, 14 How. Pr., 287; Cockle v. Underwood, 3 Duer, 676; Crosby v. Fitzpatrick, 23 W. Dig., 35.

But an application for leave .to discontinue is addressed to the legal, not the arbitrary, discretion of a court, and it cannot capriciously deny it. This court, in The Matter of the petition of Butler, 101 N. Y., 307, reversed an order denying leave to discontinue upon the ground that the facts before the court did not furnish a basis upon which to rest a denial of the application. Finch, J., in delivering the opinion of the court, said: “In such a case, through the control which the court exercises over the entry of its order, there is discretion to refuse; but where there are -no such facts, and nothing appears to show a violation of the right or interest of the adverse party, the plaintiff may discontinue, and a refusal of leave becomes merely arbitrary, and without any basis upon which discretion can exist.”

The cases cited support the right to refuse leave whenever circumstances exist which afford a basis for the exercise of legal discretion, and in those cases the court had but to consider whether anything had occurred since the commencement of the action which would so fai» prejudice defendant’s interest in the event of a discontinuance as to require a denial But in divorce cases there are two reasons why the rule which guides the court in determining whether to allow a discontinuance in ordinary actions cannot be strictly applied.

1. The rights of the parties to the record are not alone to be considered; the public is regarded as a party and must be treated as such by the court.

2. Because of the public interest the court has been invested with a wider discretion in the control of the course of procedure in matrimonial actions than in others.

Such an action is one of the few in which a court is authorized to exclude the public from the trial.

In all actions save such as are enumerated in §1012 of the Code of Civil Procedure the parties may, by written stipulation signed by their attorneys, select a referee to hear and determine the issues, but in an action to annul a marriage, or for a divorce or a separation, a reference shall not be made, of course, upon the consent of the parties. Although the parties consent, the court may, in its discretion, refuse a reference. If it grant a reference the parties may not select the referee. The court must designate him. So in actions generally where upon the court devolves the duty of appointing a referee no person can be appointed to whom all the parties object, but in an action to annul a marriage, or for a divorce or a separation, it may be done. Section 1024. So, too, where a party may ordinarily by admitting the allegations of the complaint relieve the plaintiff from the necessity of making proof thereof, such jis not its effect in actions for divorce. A decree cannot be based on consent. And it is the duty of the court to be zealous in the prevention of collusive divorces; to thwart any effort of the parties to sunder the marriage contract save for the reasons which the statute prescribes shall be permitted to so operate as to release the innocent from bonds which continue to fetter the guilty. Consequently it cannot be concluded by the stipulations and consent of the parties as to the merits. Proof of the facts which authorize a decree will alone suffice.

The instances given are sufficient to call attention to the fact that record parties are not permitted that degree of control in matrimonial actions which they may exercise over suits generally. While, on the other hand, courts are required to exercise a broader discretion in their conduct. The reason for the difference is found in the interest which the public has in any consummated -contract of marriage. Because of that interest the public-is treated as a party to the controversy although, of course, not a party to the record.

In Bishop on Marriage and Divorce, vol. 2, § 230, the attitude of the public towards such a litigation is stated as follows : “A divorce suit, while on its face a mere controversy between private parties of record, is, as truly viewed, a triangular proceeding, sui generis, wherein the public or government occupies in effect the position of third party.” And while this third party is not specially represented by counsel, it is for this purpose to be represented and protected by the judges. Murphy v. Murphy, 8 Phila., 357. This third party, so called, had an interest in the prompt prosecution of the action, which the court should have, and we must assume did regard in its determination.

This was not a case where the contract of marriage was admitted, leaving simply the issue of adultery. The marriage was denied. No ceremony was ever performed. No witnesses were present at the making of the alleged contract, but according to the evidence of the plaintiff it rested in paroi. It appeared that the person seeking to have this contract established, years before the commencement of the action, and on the eve of defendant’s marriage to a woman since dead, with knowledge of such fact, accompanied by her mother sought and obtained the.assistance of a lawyer to secure for her redress and indemnity for an alleged injury* which if well founded was not consistent with the assertion of marriage. Their petition appears to have prospered to a degree which, for the time being, gave entire satisfaction.

Shortly thereafter the defendant married another woman and lived with her in the open relation of husband and wife for several years and until her death. The plaintiff, in the meantime, was by a ceremonial marriage united to another man and they lived together for a period of five years. It is true that the plaintiff’s testimony, and it was before the court on the hearing of this motion, tended to explain the apparent inconsistency between her present claim and the fact of marriage to another long after the: alleged contract with defendant was entered into. She assigned as a reason the mistaken counsel of a lawyer which led her to believe that she was not legally married to the defendant.

Now, the defendant, after the death of the woman whom by ceremony and subsequent conduct he held out to the public as his wife with every form of solemnity, married another woman by whom he had, prior to the commencement of this action, one child. She was designated in the complaint as co-respondent. The issue then involved in its result a determination whether the mother was a wife and the child legitimate. In the prompt disposition of that question the public was interested. Its duty is to see. that all contracts shall be fulfilled beneficially to progeny who are to be enrolled amongst the citizens of the state, and it owed the mother the duty to have determined as speedily as the due administration of justice would permit whether she was wife in fact or only in name, and the court having regard, as was its duty, for the interests of the public, determined that the plaintiff ought not to be allowed to discontinue. The situation presented admitted and required the exercise of discretion. Therefore, we need not further consider the matter.

The judgment should be affirmed.

All concur.


author: Follett, Ch. J.

text:
    Philip Carpenter, Resp’t, v. The New York, New Haven & Hartford Railroad Co., App’lt.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    1. Negligence—Cabbiees—Money stolen ebom fassengbb in sleeping-cab.
    Money in a passenger’s clothing worn during the day and placed under his pillow at night, is not in the custody of the corporation which carries, and furnishes travellers with berths in- sleeping coaches so as to make it liable for its loss. To sustain a recovery some evidence of negligence on the part of the carrier must be given.
    2. Same.
    Proof that a car ran over an important route between great, through and stopping at eight, considerable cities, that but one person was employed on the car as conductor, porter and bootblack, and to assist passengers in alighting, is sufficient to put the carrier to proof of the care which it took of the occupants of the sleeper on the trip and is sufficient to require the question, whether the loss was caused by the defendant’s negligence, to be submitted to the jury.
    Appeal from an order of the general term of the court of common pleas in the city of Mew York, reversing a judgment of the general term of the city court, which affirmed a judgment dismissing the complaint on the merits, with costs, entered on an order at the trial term.
    The defendant, a railroad corporation, is a carrier of passengers over its line between the cities of Mew York and Boston, and runs sleeping cars with the usual accommodations.
    July 6, 1885, the plaintiff paid his fare, and §1.50 for a berth from Mew York to Boston, and took passage on a train that left the Grand Central station at half past eight o’clock in the evening. He was assigned the lower berth in section ten of the sleeping car u Boston,” and went immediately to bed. A colored porter was in charge of the car, to whom the plaintiff gave his passage and sleeping car tickets. He testified that he undressed and placed his pocketbook, containing $40.00 in money, in his inside vest pocket, and then placed that garment under the pillow next to the window. He slept soundly and without waking until about six o’clock in the morning, when the train was near Boston. Seeking his vest he found it under the pillow next to the passageway, with his joocketbook in the pocket, but the money had been stolen. His watch, which was in another pocket of the garment, and about $3.00 in silver in a third pocket were not taken. When the plaintiff went to bed the berth over him was occupied by a stranger, but it was unoccupied when he got up. On discovering his loss he called the porter and acquainted him with the fact.

      Jabish Holmes, for resp’t; Henry W. Taft, for app’lt.

      Affirming 15 N. Y. State Rep., 345.

   Follett, Ch. J.

Money necessary for the payment of the expense of a journey undertaken which is carried in the trunk of a passenger is part of his baggage, and if lost while in the custody of a carrier for transportation it is liable. Merrill v. Grinnell, 30 N. Y., 594; Fairfax v. N. Y. C. & H. R. R. R. Co., 73 id., 167; 2 Red. R. R., 59. But carriers do not undertake to carry and safely' deliver the effects of travelers not delivered into their custody, and it cannot be held that money in a passenger’s clothing worn during the day, and placed under his pillow at night, is in the custody of the corpoffition which carries and furnishes travelers with berths in sleeping coaches. Lewis v. N. Y. Sleeping Car Co., 143 Mass., 267 ; 2 Rorer R. R., 887.

The mere proof of the loss of money by a passenger while occupying a berth does not make out a prima facie case, and to sustain a recovery some evidence of negligence on the part of the defendant must be given.

The negligence complained of is that none of the defendant’s employes were continually on guard in the car in a position to observe the movements of all persons in the passage-way between the sections.

A corporation engaged in running sleeping coaches with sections separated from the aisle only by curtains, is bound to have an employe charged with the duty of carefully and continually watching the interior of the car while berths are occupied by sleepers. Pullman Car Co. v. Gardner, 3 Pennypacker, 78.

These cars are used by both sexes of all ages, by the experienced and inexperienced, by the honest and dishonest, which is understood by the carriers, and though such companies are not insurers they must exercise vigilance to protect their sleeping customers from robbery. A traveler who pays for a berth is invited and has the right to sleep, and both parties to the contract know that he is to become powerless to defend his property from thieves, or his person from insult, and the company is bound to use a degree of care commensurate with the danger to which passengers are exposed. Considering the compensation received for such services, and the hazards to which unguarded and sleeping travelers are exposed, the rule of diligence above declared is not too onerous. Did the plaintiff give evidence which would have authorized the jury to have found that the defendant did not discharge this duty to the plaintiff ? The car in which the plaintiff rode was constructed with a passageway through the center, with sections on each side, each section containing two berths. These sections were separated from each other by movable wooden partitions, and from the aisle by two curtains which were closed when a berth was occupied. At one end of the car was a toilet for ladies, shut off from the passageway by a swinging door. On one side of the other end of the car was a toilet for gentlemen, opposite to which was the porter’s closet. A full view, of the main aisle could not be had from all parts of the space at the end last described. The train stopped at eight cities to take up and set down passengers, staying at New Haven twelve minutes, and at Springfield four.

The undisputed evidence is that the entire force employed on the sleeper which .ran over an important thoroughfare and made frequent stops was one man who acted as conductor, as porter and was also engaged for his_own profit in blackening the shoes of the passengers. Whether this employe had that part of the sleeper which is for the common use of passengers and the servants of the corporation constantly in view during the trip is not shown by the evidence, except inferentially. The facts hereinbefore referred to, that the car ran over an important route between great, through and stopping at eight considerable cities', that but one person was employed on the car, the services rendered by him for the defendant and those which he was at least permitted to render to passengers for his own profit affirmatively appear, and in addition it may well be presumed that he assisted passengers in entering aná leaving the coach at intermediate stations. The existence of these facts was not denied nor was any explanation of them offered. The defendant gave no evidence. Under the circumstances the evidence was sufficient to put the defendant to proof of the care which it took of the occupants of the sleeper on this trip and in the absence of any explanation on its part it was sufficient to require the question whether the loss was caused by the defendant’s negligence to be submitted to the jury.

The order should be affirmed and judgment absolute rendered against the appellant, with costs.

All concur.


author: O’Brien, J.

text:
    John W. Smith, Resp’t, v. Martha Smith, App’lt.

      (Court of Appeals,

      Filed January 13, 1891.)

    Husband and wipe—Erection op building by husband on wipe’s land.
    In 1863 plaintiff conveyed certain real estate, through a third party, to his wife, without consideration. In 1879, relying upon a promise by his wife that he could sell the property, and that it was at his disposal at any time, plaintiff at an- expense of $4,500 constructed a block upon a portion of the premises. Held, that plaintiff was entitled to a lien upon the land for the sum expended, with interest from time that he ceased to collect the rents from said building.
    (Huger, Oh. J., and Finch, J., dissent.)
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff.

      Louis Marshall, for app’lt; Chas. C. Baldwin, for resp’t.

       Affirming 20 N. Y. State Rep., 597.

   O’Brien, J.

The plaintiff sought, by this action, to compel the defendant, who is his wife, to convey to him certain real estate of which she holds the title, or to have a lien in his favor declared thereon. The courts below have held that he was entitled to the lien, but not to the conveyance, and as there is no appeal, except by the defendant, it is only necessary to examine the grounds upon which the right to such lien was based.

In the year 1868, the plaintiff was the owner of the real estate described in the complaint, and concerning which the relief was demanded. On the 21st of September, in that year, he conveyed it through a third party to the defendant, who has ever since held the title, though the plaintiff has managed it and collected the rents and applied what was not expended In the payment of taxes, insurance and necessary repairs to the support of the family. The consideration expressed in the deed is $25', but it is quite evident that it was a voluntary transfer of the property by the husband to the wife without consideration, and for the purpose of better securing its benefits to the family. The parties to this action have ever since resided upon the property as husband and wife, renting such portions of it as were not necessary for their own use.

It was found by the special term upon sufficient evidence that in the spring of 1879 the plaintiff informed the defendant, his wife, that he had some money in the bank drawing only three and a half per cent interest, and that by using it in building a block on a portion of the premises he could realize a larger income from this money. The defendant replied that it would be a good thing; that he could go on and build there, and that “ if he got anyw ays distressed in any shape or manner he had a right to sell the block; that it was at his disposal at any time.” The plaintiff replied that it was all right and that he would go on and build it. It is also found that relying upon this arrangement, the plaintiff, with .his own means, and at an expense of §4,500, constructed a brick block upon a portion of the land which enhanced its value to the extent of the sum so expended, and that the management of the property ever since by the plaintiff, the collection and receipt of the rents and the disposition made by him of the same, was with the defendant’s knowledge and consent. It was held that the plaintiff was entitled to have a lien declared upon the land for the sum so expended by him with interest thereon from March 1, 1887, the date when the plaintiff ceased to collect the rents in consequence, apparently, of some disagreement between the parties. We think that the judgment is correct. It would be contrary to equity to permit the defendant, under the circumstances, to hold the property without subjecting it as security, in some form, to the expenditures made upon it with her knowledge and consent. She was informed by her husband that he had money invested at low interest which could be used in improving the property in such way as to yield a much larger income to him. From what was said she is chargeable with knowledge of his intention to expend the money only for the purpose of making a more profitable investment, and with this knowledge on her part she permitted him to erect the building.

Unless the transaction gave him some claim or lien upon the property, he had, of course, no investment at all after he drew the money from the bank and used it in the construction of the block. The defendant had no right to understand from what was said that her husband intended to make a gift of the money to her by expending it upon the property. What was said and done amounted to an assent on the part of the wife that in case the husband used the money in constructing the block on the land, of which she was the owner, his money would, at least, be as safe to him as it was before. Her remark that he had the right to dispose of the block at any time in case he became in any way distressed has no point or significance, unless it is construed as an. assent on her part that he was to have a lien, and consequently a right to sell in virtue of thé expenditure which he contemplated making upon the property. The transaction was, in substance, an agreement on her part to give such a lien in case the expenditure was made.

Upon the findings made by the trial court the plaintiff, acting in. good faith, and in reliance upon this promise, expended his money and the defendant has the full benefit thereof, so that in equity she ought to pay for the same.

We do not conceive it to be necessary to quote at length from the elementary books upon equity jurisprudence, or from the adjudged cases, the language in which the principles are expressed that sustain the judgment in this case. A citation of these authorities is sufficient 1 Story Eq. Juris., § 388; 2 id., § 1237 ; 3 Pom. Eq. Jur., 233; King's Heirs v. Thompson, 9 Pet., 204; Chase v. Peck, 21 N. Y., 581; Freeman v. Freeman, 43 id., 34; Hale v. Bank, 49 id., 627 ; Husted v. Ingraham, 75 id., 255 ; Perry v. Board of Missions, 102 N. Y., 99; 1 N. Y. State Rep., 169.

It is urged in support of this appeal that the husband cannot invoke the power of a court of equity for the purpose of obtaining relief, until he first does equity by accounting to her for the rents received by him, and which were used for the support of the family, an obligation which the law imposes upon the husband alone. That point was not specifically raised at the trial, and for that reason alone should not now prevail to reverse the judgment. If does not appear, however, what sum, if any, remained of the rents after the payment of taxes, insurance, repairs and interest on the $4,500. That balance, whatever it was, is all that can be said to have been used by the husband for the payment of family expenses. It was the income of property that formerly belonged to the husband, and which he deeded to the wife without consideration, and it was accepted by her, evidently, with the tacit understanding on both sides that the income should be used as it had been before, and as it actually was used to some extent, for the benefit of the family. This is apparent from the conduct of the parties, for the husband, notwithstanding the conveyance, continued to manage the property and collect and use the rents as if the transfer had never been made, •and in this, so far as appears, the wife acquiesced. The wife having assented to the disposition which her husband made of the rents, cannot now change her position and ask him to account to her therefor. His application of some part of the rents to the support of the family was not, under all the circumstances, inequitable as against his wife, but her refusal to give him a lien or security for the .money expended in building upon the property was. This favorite maxim of equity does not, as it seems to us, apply to this case. An agreement to give a lien upon land to secure money to be expended in improving it, followed by an actual expenditure of the money, and the improvement contemplated, is so far performed that equity does not regard the statute of frauds as a defense to an action to enforce the agreement Freeman v. Freeman, supra; Burdick v. Jackson, 7 Hun, 488; Pom. Spec. Perf., § 30.

We think that the judgment is based upon correct principles, and that it should be affirmed, with costs.

All concur, except Ruger, Ch. J., and Finch, J., dissenting.