text:
    Francis S. Bangs and others, and Francis S. Bangs and John K. Bangs as trustees under the last will and testament of Francis N. Bangs, deceased, Plaintiffs v. Robert Hill, Defendant.

      (Supreme Court, General Term, First Department,

      Filed October 15th, 1886.)
    1. Will — Constbuction — Whetheb oe not a legacy is a chabge upon BEAL ESTATE IS TO BE DETEBMINED BY THE INTENTION OE THE TESTATOE.
    Whether or not a legacy isa charge upon real estate is to be determined by the intention of the testator, as derived from the terms of the will itself, and such charge will he adjudged according to the intention of the testator evidenced by the whole will in the absence of a particular direction in words making such charge.
    2 Same.
    In an action to compel the specific performance by defendant of a contract for the purchase by him from the plaintiff of certain real estate, the facts were as follow: The contract was made by Francis S. Bangs and J ohn B. Bangs, individually and as trustees under the will of Francis N. Bangs, and Mary A. Bangs of the first part, Mary A. Bangs joining in the deed only to cut off her dower. The deed tendered was by these persons and also by the executor of the last will and testament of Francis N. Bangs. The deed was refused upon the ground that the parties tendering' the deed, did not hold a good and sufficient title thereof. It was claimed that, by the terms of the will, the interest of Mary N. Bangs was made a charge upon the real estate, and therefore inalienable by her under the statute. (1. R. S., Part'2. Art. l,Chap. 1, §66.) After citing and commenting upon the various provisions of the will; Held, that the trust created by the fourth paragraph of the will, for the benefit "of Mary A. Bangs was not a charge upon the real estate of the testator, and that a deed of such real estate by Francis S. Bangs, and John K. Bangs individually, with a proper release of dower by Mary A. Bangs, would convey a valid and good title in free simple to the real estate.
    ACTION to compel tbe defendant specifically to perform a contract for tbe purchase, by bim, from tbe plaintiffs, of certain real estate in tbe State of New York. Tbe facts are agreed upon and submitted under tbe statute.
    Tbe contract for tbe sale of tbe lands was made by tbe plaintiffs, Francis S. Bangs and John K. Bangs individually and as trustees under tbe will of Francis N. Bangs, and Mary A. Bangs of tbe first part, Mary A. Bangs joining in tbe deed only to cut off ber dower. Tbe deed tendered, however, was by these persons and also by tbe executor of tbe last will and testament of Francis N. Bangs. Tbe contract for tbe consideration named therein was “ a proper deed for tbe conveying and assuring ” to tbe defendant the fee simple of tbe premises described, with a covenant against tbe individual acts of tbe grantors. Tbe defendant refused to accept tbe deed and pay the unpaid consideration, upon tbe ground that tbe parties tendering tbe deed did not bold a good and sufficient title thereof.

      Bangs & Stetson, for plaintiffs; Theodore Fitch, for defendant.
   Macomber, J.

Tbe defendant refused to complete bis contract by paying tbe consideration money and receiving tbe deed which was tendered to bim, upon tbe ground that tbe plaintiffs were not able to do and did not give bim, by tbe deed so tendered, a good and sufficient title to tbe premises. The objection so made relates to tbe interest of tbe plaintiff, Mary A. Bangs, not as bolding a dower interest in tbe premises, but as being a person whose interests m the premises under the will were, by tbe terms of tbe will, made a charge upon tbe real estate itself. He stands upon tbe statute of this State, which says : “ No person beneficially interested in a trust for tbe receipt of tbe rents and profits of lands, can assign or in any manner dispose of such interest, but tbe rights and interests of every person for whose benefit a trust for tbe payment of a sum in gross is created, are assignable.” (1 R. S., part 2, art. 1, chap. 1, § 65.)

It is claimed that by the terms of the will, tbe interest of Mary A. Bangs was made a charge upon tbe real estate, and therefore inalienable by her under this statute. Tbe question therefore is, whether tbe testator intended by his will to make tbe provision for bis wife a charge upon tbe real estate or not. Because, if be did, the deed tendered is obviously insufficient to convey a complete title, and if be did not, it is equally clear that the deed was all that tbe contract for tbe conveyance of tbe land called for.

By tbe second clause of bis will, tbe testator gave bis two sons, Francis S. Bangs and John K. Bangs, tbe sum of one bundred thousand dollars each. In case of the death of either before the death of the testator, leaving issue such share should go to his issue per stirpes. In case either should die without issue, then his share should go to his two brothers, and in case both should die leaving no issue, before the testator, their shares were given to the son, William N. Bangs, to be held by the testator’s executors in trust for him during his own life, “he to receive the interest and income thereof for and during his natural life, and they to invest and keep the same invested for and during his life, in such securities as ordinarily prudent and intelligent men invest their own funds in order to secure regular income.” There was a power also given to each of the three sons, by will, to devise and bequeath his share to such of the testator’s kindred as they might designate. By the fourth clause of the will, the rest, residue and remainder of his estate, real and personal, was divided into three portions. A desire was expressed by the testator that his wife should receive an annual income, after his death, amounting to twelve thousand dollars, including such income as she derived from her separate estate. One of the three portions was given in trust to Francis S. Bangs and John K. Bangs and the survivor of them, for and during her natural life, “ in trust to' invest and keep the same invested in such securities as ordinarily prudent men invest their own funds, in for the purpose of securing a steady income, and to receive the income and interest thereof for and during her natural life. After the expiration of twelve months from my decease, they are to pay her out of such income and within the limits thereof, such sum as may be necessary to make her total income during such twelve months, after taking into account the income which has accrued and become payable to her during such twelve months, from her own estate, belonging to her at the time of my decease and from reinvestments thereof and from any property settled upon her for her life or any shorter period, and from her dower in my real estate, such sums as will make the total of her income during such twelve months, up to the sum of $12,000, etc.,. “ And subject to the said trusts, the principal of said fund is given, devised and bequeathed to my said sons last named, in the same manner and upon the same terms, conditions, limitations and provisions as are expressed in the second clause of this will concerning legacies are given.” The other two parts were given respectively to his sons, Francis S. Bangs and John K. Bangs, upon and subject to the same terms, conditions, provisions and limitations which are expressed in the second clause of the will concerning the legacies there given. These two shares so given to Francis S. Bangs and John K. Bangs, were charged with annuities from the date of’the decease of the testator, which are particularly named. Thence follows this clause: “ These annuities are- not a charge upon the real estate, nor are they to restrict or encumber the transfer or alienation of the real estate, but they are a personal obligation upon my said two legatees equally and upon those who may succeed to their respective shares in my estate, in proportion to their interest.”

Counsel for the respective parties have each constructed an ingenious argument in favor of his contention, based largely upon a very proper assumption made by both, that the testator himself was a gentleman learned in the law and well skilled in the use of legal terms, and knew comprehensively the bearing of the different clauses and provisions of a will, one upon the other. One train of discussion which the arguments take leads quite inevitably to the conclusion that the testator did not intend the provisions for his wife to be a charge upon the real estate, and the other with almost equal positiveness maintains that such was in fact his intention.

There is, indeed, no room to doubt the legal proposition, that whether or not a legacy is a charge upon real estate is to be determined by the intention of the testator, as derived from the terms of the will itself, and such charge will be adjudged according to the intention of the testator evidenced by the whole will, in the absence of a particular direction in words making such charge, Hoyt v. Hoyt, (85 N. Y., 142).

It is contended by the plaintiff’s counsel that the circumstance that the testator left ample personal property, and more than sufficient to pay his debts, lias an important bearing upon the construction of this fourth clause of the will. It doubtless has some bearing upon it, though, manifestly, it would not be as important in determining the question as the intention sought from other sources, because, as is reasonably argued by the defendants’ counsel, what seems to be sufficient to-day for the payment of debts and legacies, may not be sufficient at some future time. And while it is fixed and certain that one of the testator’s strongest desires was to secure to his wife an ample income during her life, the intention of the testator must, as it seems to me, be ascertained from other facts than that.

The significant words in the clause of the will are that the trustees and the survivor of them were to hold the property “ in trust to invest and keep the same invested in such securities as ordinarily prudent men invest their own funds in, for the purpose of securing steady income and interest thereof for and during her natural life.” These are the words that one would naturally expect to follow a clause in the will permitting or directing the executors or trustees to sell real estate and hold the proceeds thereof in lieu of the real estate for certain purposes. These words do not mean the rents and profits of real estate, but are solely technical words and phrases which are commonly nsed in speaking of the earnings of personal property, as money loaned, held on mortgages, or in like investments. Furthermore, the will says: “ And subject to said trusts, the principal of said fund is given, devised and bequeathed “to the sons last named.” Here we have the same recognition of the property as personal property. He does not say “ subject to said trusts, the rents and income of said land is given,” but he calls it the principal of said fund.

On the other hand, it is contended by the counsel for the defendant that the difference in expression in the several parts of article four of the will indicates an intention that the lands should be subject to the trust, and therefore inalienable during the existence of the trust. It is true the testator does give the other two of the three equal parts of his. estate mentioned in item four, to Ms two sons, and directs in the final clause that the annuities charged thereon shall “ not be a charge upon the real estate, nor are they to restrict or incumber the transfer or alienation of the real estate, but they are a personal obligation upon my said two legatees equally, and upon those who may succeed to them respective shares in my estate in proportion to their interest.” It is contended that inasmuch as the testator specially declares that the four annuities shall not be a charge upon the real estate, which in part composes the two of the three portions devised and bequeathed to his sons, the absence of such a declaration in regard to the other of the three parts set aside for the benefit of his wife, would indicate a contrary intention in respect to the share which is so held in trust for her. This contention is the strength of the defendant’s case, and there would be much in it to overcome the intention as derived from the general scheme of the will except for this condition, namely, that the testator did not in terms charge the part so held in trust for his wife with the payment of any sum of money for her benefit, while in the case of the two other portions, stamped with the payment of four particular legacies, he in words says : “ But the shares in my estate hereby given to my said sons, Francis S. Bangs and John K. Bangs, I charge with annuities from the date of my decease as follows.” If that stood alone, without the special declaration that it should not be a charge upon the real estate, or should prevent the free alienation of the real estate, clearly these four annuities would be a burthen on such real estate during the life-time of the annuitants.

It follows that the trust created by the fourth paragraph of the will, for the benefit of Mary A. Bangs, is not a charge upon the real estate of the testator, and that a deed of such real estate by Francis S. Bangs and John K. Bangs, individually, with a proper release of dower by Mary A. Bangs, would convey a valid and good title in fee simple to the real estate.

Let judgment be entered accordingly.

DANIELS AND Brady, JJ., concur.


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    People of the State of New York ex rel. Daniel A. Skinnell v. Thomas B. Rand et al., composing a General Court-martial.

      (Supreme Court, General Term, First Department,

      Filed October 21, 1886.)
    1. Militaey Offehoes — State Military Code, § 205 — General Military' Peculations, § 135.
    The Military Code of the State provides that every commissioned officer, in. time of peace, may he punished among other things for un-officerlike conduct, and may be sentenced, cashiered and fined, etc. These provisions are supplemented by the General Government regulations of the military forces as follows: “Military Courts will also exercise jurisdiction upon the proper charges of un-officerlike conduct or disrespect to a superior officer, when the offence is committed by an officer wearing his uniform, or any part of it, though he may not be on duty. In the case of an officer of a regiment of the National Guard, who, while wearing his uniform, engaged in rifle practice with other members of the regiment, ¡yid by payment of money to the scorers, endeavored to procure a better record than that to which his performance entitled him. Held, that these acts constituted a military offense.
    2. Certiorari — When determination of a court not reviewable by.
    The relator was duly summoned before a General Court-martial, and served with copy of the charges and specifications accusing him in different forms of conduct unbecoming an officer and gentleman, and after trial found guilty and sentenced to a punishment of censure and fine. Held, that the court having jurisdiction of the subject-matter, and of the person of the accused, its determination could not be reviewed by a writ of certiorari.
    Heabing upon the return to a certiorari t.o review the proceedings, finding and sentence of a general Court-martial of the National Guard of the State of New York, whereby the relator, the Second Lieutenant of Company B, of the Ninth Begiment of the National Guard, was found guilty of conduct unbecoming an officer and a gentleman, and sentenced to be censured and to pay a fine of Fifty dollars.

      Thomas F. Byrne, for the relator; Henry L. Sprague, for the respondent.
   Macomber, J.

The relator, in April, 1885, was duly summoned before a general Court-martial, and served with copy of the charges and specifications accusing him, in different forms, of conduct unbecoming an officer and a gentleman, and prejudicial to the service. At the hearing before the Court-martial, the relator interposed a demurrer which was overruled, and thereupon the plea of not guilty was interposed.

The evidence established the fact that on the 24th day of October, 1883, the accused, while wearing his uniform as Second Lieutenant, induced one Blucber E. Hinrichs, a marker to the National Rifle Range, at Creedmoor, Long Island, by paying him the sum of fifty cents, to give to the relator a record of a score for rifle practice, to which he was not entitled. The witness Hinrichs testified that on the day named, the accused gave him fifty cents, and stated that he wanted to qualify, and then commenced to shoot, but not making good shots, stated that he wanted a score of twenty-six, and this witness immediately reported the fact, together with the money, to Mr. V'ose, an officer of the Rifle Association. Another witness was called by the name of Stephen F. Glover, also a scorer, who testified that on the same day, at another rifle range at Creedmoor, the accused came to him without a rifle and handed the witness a score card, and in answer to the scorer’s question whether he was going to shoot, stated that he was not, that he could not shoot, and gave the scorer fifty cents and said he wanted a score; that thereupon the witness gave him a score which was also reported, together with the money, to the same officer of the rifle association.

The evidence in behalf of the accused did not vary the fact recited by the other witnesses of the payment of the money to the scorer, but it had a tendency to establish the fact that, as was claimed by the accused, the money was paid for the purpose of securing fair and just consideration by the scorers to the men of the same regiment with the accused.

The Court-martial, however, acting upon what appears to us to be a preponderance of the evidence, found the accused guilty of paying to each of the scorers fifty cents, and of asking and receiving scores at the two ranges to which he was not entitled.

The court had jurisdiction of the subject-matter, and of the person of the accused, and consequently if there was any evidence in support of the charges and specifications, its conclusion could not be reviewed by a writ of certiorari. The People ex rel. Spahn v. Townsend, 10 Abb. N. C., 169. The People ex rel. Frey v. The Warden, 100 N. Y., 20.

By the 205th section of Military Code of the State, every commissioned officer, in time of peace, may be punished for disobedience of orders, neglect or ignorance of duty or unofficerlike conduct, or disrespect to a superior officer, or for neglect to comply with any of the requirements of that act, and may be sentenced to be cashiered, incapacitated from holding any military commission, fined in a sum not exceeding one hundred dollars, or reprimanded, or may be sentenced to all or either of such fines and penalties in the discretion of the court. The provisions of the military code are supplemented by general regulations for the government of the military forces of the State, which, by the statute as well as by the obligations taken by each officer when he enters the National Guard, are equally binding with the provisions of the military code itself. Section 135, of the general regulations of the military forces, is as for lows : “ Military courts will also exercise jurisdiction upon the proper charges of unofficer-lifce conduct or disrespect to a superior officer when the offence is committed by an officer while wearing his uniform, or any part of it, though he may not be on duty.” The finding of the Court-martial is, that the accused at the time of the commission of the alleged offence was in the uniform of his regiment, and was competing for the marksman’s badge: other than that, there is no evidence that the accused was in the performance of any specific duty. It may be conceded that the accused was not at the time of the acts complained of, in the performance of any duty which he owed to the State or to his superior officers. It appears that he was a member of the National Rifle Range Association, and was consequently subject to its rules and regulations. His practice with the rifle, even if a pastime, was in the direction of the service in which he had volunteered. It was a portion of his military training. He seems to have been visiting the grounds of the Rifle Association with many of the men of his regiment; and while technically not on military duty, he saw fit to wear the uniform which had been provided him while ostensibly engaged in a public competition for a medal. Being thus in his uniform, and desirous of acquiring a name for marksmanship, to which he was not entitled by merit, he unlawfully and corruptly, and in a public place, induced the scorers to give him a score card of a much higher rank than he could have obtained honestly. The offence may be likened somewhat to acts which have been from time immemorial condemned by the courts, and classed as misdemeanors at Common Law, such as using false weights and measures, playing with loaded dice, and marked cards, and other like cheats. Becoming publicly intoxicated while wearing military uniform, is a familiar instance of an offence against gentlemanly and officer-like conduct required in time of peace. Buying or obtaining corruptly a record as a marksman while so attired, and when attended by many comrades in a public place, must be deemed equally a military offence, as it brings scandal and disgrace upon the National Guard.

The judgment, findings and sentence of the Court-martial should be affirmed, and the writ of certiorari dismissed with costs.

Dakiels and Beady, JJ., concur.


text:
    Robert J. Dean et al., respondents, v. Horace K. Thurber, as assignee, etc., appellant.

      (Supreme Court, General Term, First Department,

      Filed October 21, 1886.)
    1. Acounting — Pledge — Propeety subject to lien fob duties — Accounting FOB PROCEEDS.
    The plaintiffs seek to procure an accounting of the defendent concerning certain property turned over by them to him, as assignee of H. & S. The assets were largely imported goods, stored in bonded warehouses, the receipts of which had been pledged to secure the firm’s notes to various banks in New York city. A number of these notes were accompanied by the written guarantee of the plaintiffs for payment of each upon the transfer of the note to them, and all right and title which the holders had to the collateral securities. These were paid by the plaintiffs, and the title to the collateral was transferred to them principally, though not wholly, after the appointment of the defendent as assignee. All of the goods pledged by H.S. were subject to the lien of the Government thereon for duty. The goods of ' the plaintiffs and other creditors were placed in defendant’s hands, and most ■of them sold before the bringing of this action. Before sale the defendant was obliged to pay the duties to the Government upon the goods that were in the bonded warehouses. No arrangement was made between these parties as to who should bear the sum payable to the Government for duties. Held, that when the defendant undertook to sell the property and answer Tor the proceeds, he undertook merely to convert it into cash after paying •all the necessary expenses thereof, and that one of the laigest items of expense would necessarily be the payment of the preferred debt to the Government. That the plaintiff had not the right to compel the defendant to account to them for the amount of the duties to the Government which the defendant had advanced.
    Appeal from judgment entered upon the report of a referee.

      Edward S. Hatch, for the resp’t.; More, Arlington More, and George S. Hunter for appl’ts.
   Macomber, J.

This action was brought to procure an accounting of the defendant concerning certain property turned oyer to him by the plaintiffs. The defendant is the assignee of the firm of Herron and Spencer. The assets of that concern consisted largely of imported goods which were stored in bonded warehouses, the receipts of which had been pledged to secure the notes of the firm to-various banks of the city of New York. There were, among these notes, eighteen, amounting to $96,600, reach of which was accompanied by the written guaranty of the plaintiffs in this action for its payment upon the transfer to them of the note and all right and title of the holders to the collateral securities. These notes were paid by the plaintiffs and the title to the collaterals was transferred to them principally, though not wholly, after the appointment of the defendant as assignee of the firm of Herron and Spencer. All the goods that were pledged by Herron and Spencer, including those to the plaintiffs, were subject to the lien of the Government thereon for duties. The original assignee of Herron and Spencer failed to . qualify, and the selection of this defendant in his place seems to have been the result, in part, at least, of an arrangement between the plaintiffs and him. One of the plaintiffs stated to the defendant that there was some difficulty about the original assignee’s giving security, whereupon the. defendant suggested that if the plaintiff’s firm would procure his appointment as assignee and put their goods in Ms hands, he would help them with money to take up the notes, and as he already had the matters of the Importers’ and Traders’ Bank in his hands, he had no doubt the Park Bank would also do the same thing, and thus the control of the goods would be concentrated in one person, and any serious sacrifice thereof would consequently be prevented. The defendant seems to have been appointed assignee under and in pursuance of such conversation and arrangement. The goods, both of the plaintiffs and of other creditors, were placed in the defendant’s hands, the most of which had been sold before this action was brought. Before, however, the defendant could take any active steps in converting any of the property into money, he was obliged to and did pay the duties to the government upon the goods that were in the bonded warehouses.

At the time of the arrangement spoken of above between the plaintiffs and the defendant, nothing was said directly as to who should bear the sum payable to the government for the duties. The result of the conversation was that the defendant should take these goods, with others, and account to the plaintiffs therefor. It was several months later, and not until the tlfird day of January, 1885, when the question was brought up whether the defendant, as the general assignee of Herron and Spencer, should bear the expense of the duties upon the goods wMeh had been pledged to the plaintiffs, or whether such duties should be deducted from the amount realized upon the sale of the goods by the defendant, made under the arrangement already stated. The defendant refused to recognize the claim, then for the first time distinctly made by the plaintiffs, whereupon it was arranged that the defendant should continue the sale of the goods without prejudice to the rights of the parties respectively.

The learned referee has charged against the defendant, and not against the goods of the plaintiffs, all duties winch the defendant had paid to the government prior to the third day of January, 1885, and has refused to charge him for any duties wlfieh he has paid subsequently thereto. He thus holds that the goods of the plaintiffs should not be answerable for the duties imposed upon them until after a time when the subject-matter was distinctly raised and disputed between the parties. The judgment seems to rest in part upon sections 3466 and 3467 of the Revised Statutes of the United States, wMch give a preference to the government for all duties imposed upon goods which are owned by all persons who subsequently make an assignment of the property, or whose property afterwards comes into the hands of their personal representatives. Nevertheless, the judgment does not seem to be founded wholly upon these provisions of the statute, or upon the ground that in this case it was the duty of the assignee to relieve the goods that were in the bonded warehouses from the government’s lien for duties in favor of the plaintiffs, because if that had been the decision, every consideration of logic would have led the referee to hold that the duties paid subsequently to the third day of January, 1885, as well as those paid before that date, should thus be a burthen upon the general funds of the assignee rather than be distributed or apportioned upon the different quantities and parcels thereof.

The referee has also found and also decides that the payment before the date mentioned, was a voluntary payment of the same, and that, therefore, he cannot now charge it over to the plaintiffs upon this accounting. And this brings up the principal, if not really the only serious question that exists in /the case. It stands as a conceded fact that though these goods came into the hands of the defendant as assignee of Herron and Spencer, yet they came charged with the previous rights of the plaintiffs in this action, and whatever interest the defendant, as such assignee, had in these goods so pledged to the plaintiffs, was subordinate to the title of the plaintiffs. What particular thing then did the parties contemplate at the time of the conversation between Mr. Dean and the defendant, preceding the taking by the defendant of these goods ? It must have been well understood that each knew the well-defined rights of the plaintiffs: that the defendant had no right to take the goods so pledged to the plaintiffs and sell them and distribute the proceeds thereof generally for the benefit of all the creditors. It was well enough understood that the value of the property so pledged to the plaintiffs was insufficient wholly to pay the amount of the $96,600 of the indebtedness represented by' the notes, after paying the duties which were due to the government. While, therefore, it may be true, that no words were spoken in regard to the advancing by the defendant of a sum sufficient to pay the duties to the government, yet, if the situation presented was such as impliedly would make it the duty of the defendant, undertaking to deal with these goods in this manner, so to advance the moneys to the government, the obligation to do so would be as binding upon him as though the required payment had been explicitly undertaken. The statement of the preliminary arrangement, which is borne out by all of the evidence in the case, is that the defendant was to take the' goods and sell them, and from what was realized therefrom was to pay the notes for which the plaintiffs were obligated, or so much thereof as such proceeds would enable them to do. We cannot read the testimony in the light that it was assumed, by either of the parties to the conversation, that the defendant, either individually or as the representative of all creditors of Herron and Spencer, was to mate a gratuity of twenty odd thousand dollars to the plaintiffs, for such would be the result of the findings of the referee. It is difficult to see what equity the plaintiffs would have in requiring the general funds of the insolvent firm to pay the duties upon this portion of the property under the circumstances, unless the plaintiffs turned over that property, freed from their own proprietary rights, for distribution among the creditors at large. When the defendant undertook to take the property, sell it and answer for the proceeds, he undertook to do only what was required to be done, namely, to convert the property into cash, after paying all necessary expenses thereof, and one of the largest items of expense would necessarily be the payment of the preferred debt to the government, without which he could not take any step whatever to possess himself of the subject matter of the contract, and without which he could not realize anything for the benefit of the plaintiffs. He appears to have been no more a volunteer than any agent would be who had undertaken to obtain certain property for his principal, dispose of it and account to his principal for the proceeds. There is no room, under the facts of this case, for the application against the defendant of the principle invoked by the learned referee, of voluntary payment. The circumstance that the defendant paid the amount of the duties out of the funds in his hands as assignee, and not out of his individual funds, is unimportant, because, under the terms of the contract itself, he was to convert the property pledged to the plaintiffs mto money, and to account to them therefor.

Under the facts appearing in the case, we think that the plaintiffs have not the right to compel the defendant to account to them for the $21,437.23, the amount of the duties for the government which the defendant has advanced, but that, on the contrary, the defendant had the right to deduct that sum from the proceeds of the 'property so pledged to the plaintiffs.

The judgment should be reversed and a new trial granted with costs to abide the event.

Daniels and Brady, JJ., concur.


text:
    Isaac Straus, Resp’t, v. William Heyenga, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed October 21, 1886.)
    1. PARTNERSHIP — ARBITRATION — PLEADINGS—COMPLAINT.
    The plaintiff and defendant entered into a co-partnership agreement, one of the clauses of which provided that in case of the dissolution of the firm, before a date specified, the plaintiff should receive the amount of capital contributed by him, and a proportion of the profits on all goods sold after a certain date. Business was entered upon and continued for a time, the firm being dissolved before tbe time concerning which the agreement was made. These matters were alleged in the complaint, and also that the differences of the partners were submitted to arbitration and an award made. This latter allegation was denied by the answer and no proof thereof given on the trial. The defendant claimed that this allegation having been made by the plaintiff, he was precluded thereby fx om obtaining the relief as in any ordinary action of accounting between the the partners. Held, that the plaintiff had alleged other matters sufficient to enable him to recover upon the contract alone.
    Appeal from a judgment entered upon tbe report of a referee. Tbe plaintiff and defendant, on tbe 21st day of July, 1881, entered into a written eopartnersbip agreement for tbe purpose of manufacturing,«buying and selling brier-wood, pipes. Among tbe provisions of said, contract was tbis: “ In tbe event of the firm not continuing after December 1,1881, then tbe said Isaac Strauss is to receive tbe amount contributed by him to the capital herein and one third of tbe profits on all goods sold by said firm after August 1, 1881.” The firm entered upon its business about tbe first day of August, 1881, and on or before tbe first day of December following tbe business was discontinued and tbe firm duly dissolved.
    Tbe plaintiff contributed to tbe. capital stock in all tbe sum of $2,150 and drew therefrom, from time to time, in small sums, amounting in tbe aggregate to tbe sum of $713.18, making a net contribution to tbe funds of tbe copartnership of $1,436,67.
    No profits were made during tbe continuance of tbe copart- . nership. Tbe referee found in favor of tbe plaintiff in tbe sum of $1,436. 67, with interest thereon from the first day of December, 1881, and judgment was accordingly entered against tbe defendant.

      Leonard Bronner, for the resp’t; Samuel Q-reenbaum, for tbe appl’t.
   Macomber, J.

Tbe findings of the fact made by tbe referee are in accordance with tbe evidence in tbe case. His construction of the written agreement between tbe parties is tbe only one that can be made. Indeed tbe instrument is so plain and unambiguous in its language and terms as to requffe no interpretation whatever. Tbe plain reading of it is, that tbe parties thereto entered into a limited, temporary and provisional partnership to continue certainly for four months, and, in a contingency, three years longer. Tbe. parties failed to make any arrangement for the continuance of tbe partnership beyond tbe first day of December, 1881, but on tbe contrary ended their business connection under the agreement. Tbe right of tbe plaintiff under the circumstances, as determined by tbe contract, was to require of tbe defendant a payment to him of tbe sum of money which be bad contributed to tbe partnership with interest thereon from tbe time tbe copartnership ceased.

Tbe counsel for tbe defendant contends that tbe plaintiff ought not to have the relief which has been given him by the referee, because his complaint was framed upon a different claim than the one which lies at the foundation of the judgment. His contention is that the plaintiff, having alleged that the differences between the partners had been submitted to arbitration, and an award made by the arbitrators in favor of the plaintiff and a judgment asked therefor by him, he is precluded from obtaining the relief as in an ordinary action of accounting between partners. It is true the complaint does allege the fact that such differences.were submitted to arbitration and an award was made, but tiffs is denied by the defendant in his answer. At the trial, no evidence was given of such arbitration or award, nor is there anything in the case which establishes the fact that such an arbitration was had. The plaintiff had, however, alleged in his complaint other matters sufficient to permit him to recover upon the contract alone. The complaint sets forth the agreement of the parties and that the plaintiff performed on his part fully, and paid in the sum of money alleged, and that the copartnership was dissolved in the month of November, 1881, in pursuance of the terms of the written agreement; It asks for a formal dissolution of the copartnership, the appointment of a receiver, an accounting and distribution of the assets, an injunction, payment to the plaintiff of what is due him, and for other relief. The complaint, therefore, is entirely sufficient, outside of the allegations touching the arbitration, to have enabled the referee to pronounce the judgment which has been entered. .

Inasmuch as there were no profits made in the business, the plaintiff was not entitled to any sum therefor, and inasmuch as the plaintiff had the right, under the agreement, to withdraw the amount of money which he had paid in, he was not in turn chargeable with any loss which may have accrued between the beginning of the business and its close in November.

It follows, therefore, that the judgment should be affirmed with costs.

DANIELS and Beady, J J., concur.


author: Daniels, J.

text:
    George W. Johnson, plaintiff, v. Henry Spicer et al., defendants.

      (Supreme Court, General Term, First Department,

      Filed October 21, 1886.)
    1. SURPLUS MONEYS — ARISING FROM MORTGAGE FORECLOSURE — AGREEMENT IN CONTEMPLATION OF MARRIAGE — WHAT CAN BE DISPOSED OF BY —What is not an expectant estate.
    This action was brought for surplus money arising out of a foreclosure sale. The property sold was purchased by G-eorge Spicer, July 1883, subject to the mortgage under which the sale was made. In July, 1884, he died intestate, leaving appellants and others heirs at law. His widow survived him until January-1885, when she died intestate without issue and leaving no known heirs. Prior to her intermarriage with Spicer, and in 1847, she entered into an antenuptial agreement with him by which it was covenanted and agreed that in the case of the decease of the party of the first part without leaving lawful issue by the contemplated marriage previous to the decease of the party of the second part, that then and in that case all the real and personal property he may die possessed of shall belong to and be the property of the party of the second part. After the decease of the widow an act of the Legislature was passed, releasing the right and interest of the State in the lands to the person to whom, by the order herein appealed from, the surplus money had been awarded. Held, that at the time when the agreement was made there was in the husband no expectant estate in it, as such estates have been defined' by the statute. That a mere possibility or contingency unconnected with any interest in or growing out of property cannot be made the subject of a valid sale or grant. That theState acquired no interest in the property upon which the act could be made to operate.
    2. Same — What is an expectant estate.
    If, at the time when the agreement was entered into, George Spicer had wned the real estate out of which the surplus money arose, then a contingent interest, title or estate in it would have vested in the other party to the agreement who subsequently became his wife.
    3. Same — When an agreement testamentary must be executed as a will.
    Whether the clause in the agreement is not altogether defeated by the fact that it was testamentary in its provisions and void, because not executed with the ceremonials prescribed for the execution of a will, Quaere.

    Appeal by Francis Spicer and Emeline A. Scarff from an order made directing the disposition of surplus moneys.

      David Thurston for defendants, applt’s; Edward F. Brown, for plaintiffs, resp’t.
   Daniels, J.

The moneys in controversy arose out of the sale under the foreclosure of a mortgage, of the premises known as 61 East 52d Street in the City of New York. The property was purchased and acquired by a deed executed and delivered to George Spicer, on or about the 3d day of July, 1883, subject to the mortgage under which the sale was made. In Juty, 1884, Spicer died intestate, leaving the appellants and others his heirs at law. His widow survived him until the 18th of January, 1885, when she died intestate without issue, and leaving no knoAvn heirs. Prior to her intermarriage with Spicer and on or about the 9th of June, 1847, she entered into an antenuptial agreement with bim by wbieli it was covenanted and agreed that in the case of the decease of the party of the first part without leaving lawful issue by the contemplated marriage previous to the decease of the party of the second part, that then and in that case all the real and personal property he may die possessed of, shall belong, and be the property of the party of the second part.

After the decease of the widow, Chap. 377 of the Laws of 1885 was enacted, releasing the right and interest of the State in the lands, to the persons to Avhom by the order appealed from, the surplus money has been awarded. The order seems to have proceeded upon the theory that, by this clause in the agreement, the title to the property vested in the widow of George Spicer at the time of his decease, and she having died without heirs, it became the property of the State and was released by this act to the persons held to be entitled to the surplus. And whether this direction was correctly made will depend upon the construction and effect of this clause of the antenuptial agreement.

If at the time when the agreement was entered into George Spicer had owned the real estate out of which the surplus moneys arose, then a contingent interest, title or estate in it would have vested in the other party to the agreement, who subsequently became his wife. Hathaway v. Payne 34 N. Y., 92-104-7; Long Island R. R. Co. v. Conkling, 29 N.Y., 572.

For, as an agreement between these parties contemplating marriage, it was an instrument legally binding upon each of them. Laws, 1849, chap. 375, sec. 3. Young v. Hicks, 27 Hun, 54; affirmed 92 N. Y., 235.

But at the time when the agreement was made, and also when the marriage itself was solemnized, neither of these parties had any right, title, or interest whatever to or in this property. There was accordingly in the husband no expectant estate in it as such estates have been defined by the statute, and no interest which by its provisions was made descendible, devisable or alienable. 2 R. S., 6th ed. 1103, Sec. 35. Pond v. Bergh, 10 Paige 140.

The effect of this part of the instrument is therefore to be determined by the settled principles of the common law, and by them a mere possibility, or contingency, unconnected with any interest in, or growing out of property, cannot be made the subject of a valid sale or grant. 2 Kent, 7th ed. 592—note.

A mere possibility is not the subject of a grant, although it may be released to the owner of the land. This subject was considered in Jackson v. Catling, 2 John 248, and the principle was reiterated by KeNT, C. J., delivering the opinion of the court that a mere possibility is not the subject of a grant, unless it be a possibility coupled with an interest. Id. 261, And that Avas deemed to be the settled law of the State by Senator Tracy, Avhose opinion Avas adopted by the Court of Errors, for the decision of the case of Jackson v. Waldron, 13 Wend. 178; Id. 222. The same principle was fully reviewed again by that court in Edwards v. Varick, 5 Denio 664, and it was there held to be part of the settled law of the State. Id. 692-3. What Spicer had, if he can be said to have anything whatever, at the time when the agreement was made, was no more than the barest possibility that he would acquire the title to this property as he did by the conveyance made to him in the year 1883. As a grant, therefore, the agreement in no manner operated upon it, or conveyed any interest in it to the person who became his wife. But this portion of the agreement was at most executory in its character, entitling her to its specific performance after the period of his own decease. And agreements for the transfer or conveyance of a possible interest afterwards accrueing in property have been so considered and enforced by Courts of Equity. This subject was very fully and exhaustively examined in Stover v. Eyclesheimer, 46 Barb. 84, aud this conclusion was considered to be the effect of the authorities.

Under these principles the extent of the right of the widow in this property upon the decease of her husband was that of maintaining an action at law for damages or in equity for the specific performance of tins part of the agreement. The title was in himself at the time of his decease, and it necessarily descended to his heirs subject to this right of the widow, to a specific performance, if the clause in the agreement is not altogether defeated by the fact that it was testamentary in its provisions, and void for the reason that it was not executed in compliance with the provisions of the statute directing the ceremonials to be observed for the legal execution of a will. Certainly the State acquired no interest in the property upon which the Act of 1885 could be made to operate. And as the widow took no proceedings to compel the specific performance of the agreement, the legal title to the property since her decease continuéd to be vested in the heirs of the husband, until the foreclosure and sale of it were made. And being seized of that title, they legally owned the surplus arising out of the foreclosure sale which took place after the decease of the widow. The order made should be reversed, and an order entered directing this surplus to be distributed among the heirs at law of George Spicer, but without costs against the respondents.

Brady and Churchill, JJ., concur.


author: Daniel, J.

text:
    Matter of the judicial settlement of the accounts of David Paton, trustee, etc.

      (Supreme Court, General Term, First Department,

      Filed, October 21st, 1886.)
    1. Wile — CONSTRUCTION op
    By the testator’s will it was provided, “ Ninth, I order and direct that after the decease of my said wife, and my youngest child shall arrive at the age of twenty-one years, my executor hereinafter named, or such person or persons as may then legally represent my said estate, and the interests of my said children, shall dispose of all such property as may then remain of my said estate within eighteen months thereafter, either at public auction or at private sale, as such executor, person or persons, may in his or their judgment deem most advantageous and beneficial to my children, and out of the proceeds thereof, after deducting all necessary expenses, divide the same, together with all other properly belonging to my estate, equally among the children I may then have or those who may be legally entitled thereto. ” The testator died in 1863, leaving him surviving his widow and two sons. The widow died in 18S3, and the decease of one son preceded that event. The deceased son left him surviving two sons and a widow. Both of testator’s sons had reached the age of twenty-one prior to the death of the widow. Held, that the grandchildren are each of them entitled to one fourth of the .proceeds of testator’s estate which remained at tbe death of the widow; that the widow of the deceased son was not entitled to any of said proceeds.
    2. Administrator — When his commissions are determined — When not ENTITLED TO COMMISSIONS.
    Both executors being dead, a trustee was appointed by the Supreme Court, and by the Surrogate’s Court to carry out these directions and an administrator of the estate was also appointed by the Surrogate. The esta te of testator was sold by the concurring action of these two persons, and upon the hearing before the Surrogate the administrator claimed to be entitled to commissions. Held, that it could not be determined whether he was entitled to them until his accounts as administrator were presented and settled. That the sale of the real estate was the execution of" a power vested in the trustee and that the administrator was not entitled to compensation.
    Appeal from a decree of tbe Surrogate of the County of New York, directing tbe distribution of tbe funds of the estate.

      Thomas Fenton Taylor, for Trustee and others; Jesse K. Furlong, for John B. Kurst.
   Daniel, J.

The chief controversy presented to the Surrogate for his decision, arose under the ninth paragraph of the will of John Kurst deceased. This will was executed in February 1858, and the testator died on the 28th of January, 1863. At the time, the will was executed he had three children, a daughter and two sons. The daughter died on the 21st of January 1863, and at the decease of the testator he left him surviving his widow-and two sons. The widow died on the 29th of October 1883, and the decease of the son, Charles H. Kurst, preceded that event. This deceased son left him surviving two sons, who have appealed from the decree made by the Surrogate. At the time of the decease of the widow, as both the testator’s sons had previously attained the age of twenty-one years, the period had arrived for the sale of the testator’s property and the distribution of the proceeds as that had been directed by him. These directions were made by the following portion of the will : NINTH: I order and direct that after the decease of my said wife, and my youngest child shall arrive at the age of twenty-one years, my executor hereinafter named, or such person or persons as may then legally represent my said estate, and the interests of my said children, shall dispose of all such property as may then remain of my said estate, within eighteen months thereafter, either at public auction or at private sale, as such executor, person or persons, may in his or their judgment deem most advantageous and beneficial to my children, and out of the proceeds thereof, after deducting all necessary expenses, divide the same, together with all other property belonging to my estate, equally among the children I may then have, or those who may be legally entitled thereto.” And as but one of the children had survived, the Surrogate considered him to be entitled to the entire proceeds of the property. This construction was contested by the two sons of the testator’s deceased son, who claimed to be entitled to participate in the division of the proceeds of the estate. And that they were so entitled seems to follow from the language of this portion of the will; for, as but one of the testator’s children at the time survived, no division of such proceeds could by any possibility be made equally among the children then living. This was an impossibility, as all the children at the time were deceased, except the testator’s son John B. Kurst. The contingency had in this manner arisen, which was provided for, in case of the inability to divide the property among the children, and the directions were explicit, if a division among the testator’s children could be made, that then it should be among those who might be legally entitled thereto. And it was under this direction of the will, and not that immediately preceding, that the division of the proceeds of the estate was required to be made. This was not only the literal reading of the will itself, but as the facts existed at the time of the testator’s decease, it was probably what he in point of fact designed and intended, in the event that but one of his children should be living at the time when the proceeds were to be divided. For at that time he contemplated the possible oceurrence’of such a change in his family affairs prior to the decease of his widow, as might vest his estate in the descendants of his.children, or other relations becoming entitled to it, under the statutes of the State, and the language employed by him was selected to provide for this contingent change in the state of his family. In no event did he contemplate or provide for the entire estate vesting in one of his children alone, unless he should be legally entitled to it under the last of the two directions given by him, for a single surviving child would not answer the requirements of the preceding direction, that the proceeds of the property should be divided equally among the testator’s children. When that direction could be followed then the intention of the testator would be capable of being executed by literally complying with this language. But if not, then it was the intention that it should not be followed, but that the estate should be divided among, “ those who maybe legally entitled thereto.” This, under the circumstances, became the mandatory direction to be observed in the division of the estate, and it entitled the surviving son to one-half of the proceeds, and the two sons of the testator’s deceased son Charles H. to the remaining moiety of the estate, to be divided equally between them.

A similar result will be reached by so enlarging the ordinary signification of the word “ children,” as to include the testator’s grandchildren. And that would not be inconsistent with the intention indicated by the will. For in no event does it appear to have been the purpose of the testator to disinherit, or deprive of his estate, the surviving children of either of his own children, who might be deceased at the time designated when the division of the estate was directed to take place. And such an enlargement of the term may be made to carry into effect what shall appear to have been the intention of the testator. This subject was considered in Matter of Brown, 29 Hun, 412, and authorities bearing upon the subject were there collated. In either view the grandchildren cannot legally be excluded from participation in the testator’s estate, but the proceeds should be so distributed as to give to each of them one-fourth of the amount, which will effectuate the purpose of the testator of dividing his property equally among his children.

The widow of the testator’s deceased son, Charles H. Kurst, also presented a claim for a part of these proceeds, but that claim was disallowed by the Surrogate, and the view adopted by him is well sustained by the fact that the grandchildren derived their right to these shares in the proceeds under the will of the testator and not through their deceased father. They were given directly to the persons designated in this part of the will by the testator himself. It was not until the decease of the widow that the persons to whom the proceeds were given could be ascertained, and it Avas to the individuals who came within the description contained in this part of the will at the time of her decease, that the testator’s bequests were made. And as the widow of tins son was in no event provided for, or included among these persons, she had no legal claim to any part of such proceeds.

After the decease of both persons named as the executors in the will, David P-aton was appointed a trustee by this court, as well as the Surrogate’s Court, to carry these directions contained in it into effect, and John B. Kurst was also appointed administrator of tbe estate by tbe Surrogate of tbe County of New York. Tbe estate of tbe testator was sold by tbe concurring action of these two persons, and upon the bearing before tbe Surrogate tbe administrator claimed to be entitled to commissions. But tbe claim was rejected for tbe time being by the Surrogate and deferred until bis accounts as administrator should be presented and settled. And that direction was an appropriate one to be given, for it could not be determined prior to that, time what bis right to commissions might be. To sell tbe real estate was tbe execution of a power in trust vested alone in tbe trustee, and for that service the administrator was not entitled to compensation. And tbe agreement which was made by him prior to tbe time of bis appointment seems to have contemplated that be should not claim commissions for concurring and participating in tbe sale of tbe real estate. Tbe decree of tbe Surrogate should be so far modified in its directions as to restrict the right of John B. ICurst to one-half tbe proceeds of tbe estate and direct the other half to be divided equally between tbe two sons of tbe deceased brother, and as so modified tbe decree should be affirmed without costs to either party.

Brady and Macomber, JJ., concur.


author: Barnard, P. J.

text:
    Clara B. Atkinson, respondent, vs. John A. Bowman, appellant.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)
    Titee — Real property — Tbust.
    In 1651, E. and H., bought of the Indians a tract of land on Long Island, now the town of East Hampton. James Duke of York owned the entire island by grant from Charles II. Nichols, Governor General under James Duke of York, ratified the purchase, the patent reciting that the town is in possession of “ several freeholders and inhabitants,” who have purchased the land and confirms the purchase unto the purchasers, and to a Justice of the Peace and six others named “ as patentees for and in behalf of themselves, and their associates, the freeholders and inhabitants of said town, their heirs, successors and assigns.” The “ said patentees and their associates were granted,” all the privileges belonging to a town within the government. The patent of Nichols was given in 1666, and in 1686, Dongan,Captain-General under James Duke of York, then King of England, granted a charter to the same persons named in the Nichols patent. This charter also recited that the patentees were acting “ for and in behalf of themselves and their associates the freeholders and inhabitants of the town of East Hampton.” The charter creates a board of trustees including the patentees under the Nichols patent and others, and conveys the lands of the town to them as “trustees of the freeholders and commonalty of the town of East Hampton and their successors.” Feld, that allotment of the land granted by the charter by the trustees of the freeholders and commonalty of the town of East Hampton rested on sound title, and that the lands unallotted continued to belong to the town, and that a title to such lands derived by the defendant from the town was the only valid title.
    Appeal from judgment entered on referee’s report in tbe Supreme Court in Suffolk County.

      Tbe action was for tbe possession of a certain lot of upland in tbe town of East Hampton, Suffolk County.
    Tbe plaintiff claimed title from tbe original proprietors, tbeir beirs and assigns. The defendant claimed title under a quit claim deed from the. trustees of the town of Easthampton. The referee found for tbe plaintiff.

      Edward M. Atkinson, for appellant; Henry C. Platt, for respondent.
   Barnard, P. J.

The facts in this case are undisputed. Eaton & Hopkins brought a tract of land in 1651 of tbe Indians. This tract is now tbe town of East Hampton.

James Duke of York, owned tbe entire island by grant from King Charles II.

The Governor-General, Nichols, under James Duke of York, ratified tbe purchase. This patent recites that tbe town is in possession of “ several freeholders and inhabitants,” who have purchased tbe land, and confirms tbe purchase mito the purchasers, to a Justice of tbe Peace, and six others, named “as patentees, for and in behalf of themselves and their associates, the freeholders and inhabitants of the said town, their heirs, successors, and assigns.”

By the same charter, the said patentees and their associates were granted “ all the privileges belonging to a town within the Government.” The patent or charter of Nichols was given in 1666, and in 1686, Captain General Dongan, under James Duke of York, who had then become King of England, granted a charter to the same persons as were named in the Nichols patent. This Dongan charter also recites that the patentees were acting “ for and in behalf of themselves and their associates, the freeholders and inhabitants of the town of East Hampton.”

A board of trustees is created by the charter.

This board included the patentees under the Nichols charter, and adds others and conveys all the lands of the town to the new board, as “ Trustees of the Freeholders and Commonalty of the town of East Hampton and their successors.”

This grant was one to the freeholders and inhabitants of the town. It was to be in trust for the use of the inhabitants of the town. Trustees of East Hampton v. Kirk, 68 N. Y. 459. Same case, 84 N. Y. 216.

Whatever use or possession was made of what are termed the proprietors from the charter, was entirely useless for any purpose. The allotments, made in severalty, rested on a sound basis of title. This was the grant from the Crown to the town, and the town allotment to the individuals, who thereafter held in severalty. The unallotted lands continued to belong to the town, and the defendant’s title thereto from the town is the only title.

The Montauk bill is an entirely different one. It bad not been acquired by the town at the date of the Dongan charter, and the town was authorized to get a title. Subsequently, no doubt, one was obtained, and it had been used as private property for the purpose of pasturage for very many years.

This was an allotment to individual uses to all legal intents and purposes. ■

The judgment should therefore be reversed and a new trial granted, costs to abide event.

Dykman & Pratt, J J., concur.


author: Pratt, J. Barnard, P. J.

text:
    John Anderson, as surviving, executor, of Isaac DeMott, deceased, vs. Robert A. Davison.

      (Supreme Court, General Term, Second Department,

      Filed December, 14, 1886.)
    1. Will — Construction of — Powek of sale contained in will — When IMPERATIVE.
    A power to sell contained in a will, though described in words necessarily empowering the executor to do so, is imperative when the purposes of the will require a sale.
    2. Same — Not inconsistent with devise in fee to residuabt legatee.
    If a power of sale given by a will can be executed when the fee is devised to residuary legatees, the power is not inconsistent with the devise.
    Case submitted on a statement of facts agreed upon.
    The will is as follows :

      First. — -I give and bequeath to my wife, Jane DeMott, the use of the choice of two rooms of my dwelling honse, during her natural life, and also the use of ten thousand dollars to be paid to» her annually, by my executors herein named, during her natural life, to be accepted and received by her in lieu of dower.

      Secondly. — I give and devise to my grandchildren, Laura DeMott and Theodore DeMott and Julius DeMott and Lydia DeMott and Walter DeMott, the sum of four thousand dollars to be paid to each of them as soon after my decease as they arrive at twenty-one years of age.

      Third. — And I hereby give and bequeath to my only son, Charles S. DeMott, and lastly as to all the rest, residue and remainder of my real and personal estate, goods and chattels of what kind and nature soever.

      Fourth. — I do hereby nominate and appoint my son Charles S. DeMott and my brother Daniel DeMott and John Anderson to be the executors of my last will and testament, hereby revoking all former wills by me made.

      Fifth. — I hereby empower my said executors to sell all my real estate, private, or public sale as to the best advantage.
    The facts are sufficiently stated in opinion.

      A. M. Welles, for plaintiff; Robert A. Davison, defendant, in person.
   Pratt, J.

The question in this case is whether plaintiff as executor has the power to sell lands of his testator.

The will of plaintiff’s testator contains a power of sale, coupled with no trust. Before the creation of the power, the testator had devised to his son all of his real estate. There is no direction in the will as to what disposition shall be made of the proceeds of the sale. But there are a number of specific legacies, amounting in the aggregate to $80,000. The personal property left by testator amounted to $20,000, and there were debts to amount of about $3,000.

The residuary clause to the will seems to blend the real and personal property in one fund. There is no specific devise of real estate, but the legacies are made payable out of the whole estate without distinction, so far as any language in the will is concerned. It is plain from reading the whole will that the testator intended the legacies to be charged upon the realty. Hoyt v. Hoyt, 85 N. Y., 142; Scott v. Stebbens, 91 N. Y., 605.

The clause conferring the power is ■ as follows: (first,) I hereby empower my executors to sell all my real estate, private or public sale, as to the best advantage.

It will be observed that the language is clear, and emphatic, and leaves no room for conjecture. Nothing can be more manifest than the fact that the testator intended to authorize the executors to sell his real estate. The surrounding circumstances all show such an intention. The giving of legacies far beyond the amount of his personal property, and the direction to set apart ten thousand dollars, and invest it for the use of his widow, make the will inconsistent with any other theory.

Such a power can be upheld by authority. Crittenden v. Fairchild, 41 N. Y., 289; Scott v. Stebbens, supra; Kinnear v. Rogers, 42 N. Y., 537.

A judgment should be entered for the plaintiff upon the case submitted, requiring the defendant to accept the plaintiff’s deed, and to pay the consideration without costs.

Dykman, J., concurs.

Barnard, P. J.

The intent of the will seems to be plain that the entire estate, real and personal, is charged with the payment of the debts and the legacies named in the will.' It is only the “rest residue of my real and personal estate ” which is given to the son, Charles. If this be the true construction of the will, the sale is imperatively ordered. A power to sell, although described in words necessarily empowering the executor to do so, is imperative when the purposes of a will require a sale. Mott v. Ackerman, 92 N. Y. 539.

If tbe power of sale was imperative, a sale could be made even by tbe administrator, with tbe will annexed. Cooke v. Platt, 98 N. Y. 35.

A power of sale given by will can be executed when the fee is devised to residuary legatees. Tbe power is not inconsistent with tbe devise. Crittenden v. Fairchild, 41 N. Y., 289.

Tbe facts in this case show a necessity of tbe sale for tbe purposes of tbe execution of the provisions of tbe will. By its terms, $10,000 was to be invested to produce an annual income to tbe widow for life, and $20,000 was given absolutely to four grandchildren. There was never enough of the personal estate to raise these sums after tbe debts were paid, and tbe residuary legatee, who was tbe acting executor, has in some way lost it. The infant grandchildren should not be held responsible for tbe mismanagement of tbe executor. Tbe title is- therefore good .and tbe defendant should take tbe same.


author: Pratt, J.

text:
    Mary Burns, respondent, vs. James Bostwick, Jr., appellant.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)
    MASTER AND SERVANT — INJURIES TO SERVANT RY DEFECT IN FLOOR OF LAUNDRY — When known to servant there can be no recovery.
    Where a servant sustains injury through defective machinery or conveniences furnished by his employer, if he have the same knowledge of the defects as his employer he cannot sustain an action for such injury.
    Appeal from judgment entered upon the verdict of a jury rendered in favor of plaintiff at tbe Green County Circuit.
   Pratt, J.

This action was brought by tbe plaintiff to recover damages against tbe defendant for personal injuries alleged to have been received .by the plaintiff in tbe laundry of tbe defendant, where tbe plaintiff was employed as a starcher, •or to attend tbe starching machine. Tbe plaintiff claimed to have received her injuries by slipping her left foot into a hole in the floor, which was near tbe whizzer, and from which whizzer .she was obtaining or loosening goods to put in the starcher. Upon the floor, where defendant was required to be in doing her work, there was a wooden grating, similar to those used in horse cars. The hole in the floor was used for sweeping refuse and waste water into.

The business was such that the floor was necessarily wet and ¡slippery, and the plaintiff must be deemed to have taken the risk of slipping upon the floor, as incident to the employment.

The floor had become somewhat rotten in places, but the hole where the accident occurred was used as above stated, and was, ■as much a necessary part of the machinery of the business, as the starcher or any other devise in constant use in the work. The hole had either been made, or left in the condition it was in, because it was useful, and had been appropriated to the purpose before stated. The defendant had a right to have a hole in his floor, so long as his employees were as well informed of the danger as himself, and it is immaterial how the hole came to be there, so long as it was adopted as a useful devise in the business, and was in constant use. Nobody ever heard of a tanner being required to fence his vats, to keep his employees from slipping or falling into them. The case is parallel.

The proximate cause of the injury was slipping upon the wet floor, and it is a pertinent inquiry how any reasonable man, before the accident, could have anticipated such an occurrence, and taken precaution to guard against it.

The familiar principle is, that where a servant sustains injury through defective machinery or conveniences furnished by his employer, if he has the same knowledge of the defects as his employer, he cannot sustain an action for such injury. Wright v. N. Y. C. R. R., 25 N. Y., 56; Marsh v. Chickering, 101 N. Y., 398.

The plaintiff knew of this hole as well as the defendant if it is regarded as being a defect in the floor, and the case last cited announces the principle that should govern.

It may well be doubted, whether the hole could be called a defect, as it was used in connection with the business. There was nothing secret or occult about it, and nothing that required warning or other precaution to prevent plaintiff from falling into it.

In any view of the facts, the plaintiff ought not to have been permitted to recover.

Judgment reversed.

Pratt J., concurs; Barnard, P. J., not sitting.


author: Dykman, J.

text:
    George Cox, respondent, vs. William A. Baeder et al. appellant.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)
    Contract — Breach of — Evidence — Estoppel.
    The plaintiff claimed that he was employed by the defendants for one year at salary agreed upon, and that he was wrongfully discharged, before the year had elapsed. The defendants denied the employment for the year, and claimed that it was from week to week. The testimony of the plaintiff suppported the contract as set up in the complaint, and it was strengthened by an entry made by him in the books of the defendants which came under the notice of one of them to the effect that he was hired at a stated salary for one ye'ar. The defendants and one other witness testified that the plaintiff was hired by the week. The case was submitted to the jury, and verdict rendered for the plaintiff. Held, that the verdict was supported by evidence sufficient if true to sustain it, and that there was no inherent improbability in it, also that when the defendant saw the entry in his book, his silence and failure to raise objection to its correctness was a tacit admission that it was right.
    Appeal from judgment entered on a verdict rendered in fa-,. yor of plaintiff at tbe King’s County Circuit and from an order denying a motion for a new trial on the judge’s minutes.

      David Van, for appl’ts ; William L. Whiting, for resp’t.
   Dykman, J.

This is an action for the recovery of damages for a breach of a contract. The plaintiff claims that he was employed by the defendants as a book-keeper for one year from the twenty-third day of March, 1885, at a salary of twelve hundred dollars a year, and that he was wrongfully discharged in November of the same year.

The defendants denied the employment for a year, and claimed that the plaintiff was employed by the week.

The plaintiff testified to the contract, as he set it up in his complaint, and his testimony was strengthened by an entry which he made in the books of the defendant, and which came under the notice of'one of them, to the effect that he was hired as a-book-keeper, at twelve hundred dollars a year, and commenced Monday, March 23d, 1885.

The defendants and one witness besides, testified that the contract was not for a year, but that the plaintiff was hired by the week.

So the case went to the jury without any exception to the charge, and the plaintiff received the verdict, which is supported by evidence sufficient to sustain it if it was true, and we cannot say it is not. There is no inherent improbability in the testimony of the plaintiff, and when the defendant saw the entry in the book, his silence and failure to raise objections to its correctness, was a tacit admission that it was right.

The result of the trial is not very satisfactory, but we do not find sufficient to justify the interference of an appellate court, and the judgment should therefore be affirmed, with costs.

Barnard, P. J., and Pratt J., concur.


text:
    Ann C. Clark vs. The Brooklyn Elevated Railroad Company.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)
    ATTORNEY AND CLIENT — COMPENSATION EOR SERVICES.
    Where an order to show cause why an attorney should not enter an order of discontinuance in an action, or permit it to he entered, or why another attorney should not be substituted in his place, was opposed by the attorney on the ground that on the settlement of the suit, a sum of money was paid to his client by the other side, a certain portion of which was designated to be applied to the compensation of the attorney, the Special Term who heard the motion, finding that the proof did not bear out the claim, and thatthere existed between the attorney and client no agreement as to the compensation of the attorney, determined upon the value of the services rendered. Upon appeal to the General Term. Held, that the proof did not justify the interference of the appellate tribunal with the determination.

      Appeal by plaintiff’s attorney from an order of the Special Term fixing the compensation of said attorney.

      Samuel P. Potter, for the motion; T. C. Cronin, opposed.
   Dykman, J.

The plaintiff in this action, procured an order requiring her attorney to show cause why he should not enter an order of discontinuance or permit such order to be entered, or why another attorney should not be substituted in his place.

On the motion, the real controversy seemed to cluster about the compensation of the attorney. He had received one hundred dollars, and the judge, at special term, awarded him the sum of three hundred dollars in addition.

It is the claim of the attorney, that the defendant paid the plaintiff seven hundred dollars for his counsel fee on the settlement of the suit, and that she holds that money for him ; but the proof does not bring the case up to this demand.

As there was no special contract between the plaintiff and her lawyer, respecting the payment for Ms services, he relied upon the implication of the law to raise a contract in Ms favor for the payment of their value.

Such value has been ascertained and determined as a question of fact by the judge who decided the motion, and the proof does not justify the interference of an appellate tribunal, with that determination.

The order should be affirmed, with costs and disbursements.

Babkabd, P. J., and Pbatt, J., concur.


text:
    Thomas Doyle, appellant vs. The Rector etc. of Trinity Church Corporation of the City of New York, respondent.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)
    1. Conteact — Master and Servant — Liability of master foe damages RESULTING FROM NEGLIGENCE.
    Plaintiff’s assignor contracted with defendants to sink an artesian well, and upon the completion of the work was to be paid a price per foot agreed upon. The well had been sunk the requisite depth when oneE., employed by the contractor as an accountant and not in any way connected with the work on the well, suggested to defendants the explosion of a torpedo in the well, which suggestion was acted upon and injuries to the well resulted. Defendants refused to pay plaintiff’s assignor what he had already earned unless he repaired the damage. Held, that to render a principal liable for the negligance of his servant, the act complained of must be within the limit of the servant’s employment. Held, that an act which might otherwise be regarded as a waiver of right, will not be so regarded when done under compulsion. That the plaintiff’s assignor was entitled to compensation for the work done by him under the contract, and also for the repairing, the defendants having not only requested but compelled the performance of the latter.
    2. Debt, payment of debt of another without authority does not CREATE A LIABILITY IN FAVOR OF THE PARTY SO PAYING.
    The defendants having assumed to pay a bill owed by plaintiff’s assignor and deduct the amount thereof from payments made to him. Held, that they were not entitled to credit for the same.
    Appeal from a judgment entered on a verdict rendered in favor of defendant at the Queen’s County Circuit, and from an order denying a new trial on the judge’s minutes.

      L. A. Fuller, for appellant; S. P. Nash, for respondent.
   Pratt, J.

Tlie only question to consider is whether the contractor is entitled to recover the $580 for making repairs upon the well.

It is not denied that he performed the work upon the requirement of defendants, nor is its value questioned, but it is argued for defendants, that he was bound to make those repairs at his own expense, for the reason that the injuries to the well which rendered the repairs necessary, were occasioned by the negligent act of the contractor’s servant.

The contract is set out at length in defendants’ answer and' recites that the contractor is to be paid- “ upon the completion of the work; ” six dollars for each foot of pipe driven.

The work referred to is described as being to sink an eight-inch pipe as far as necessary to furnish a sufficient supply of water, the contractor also agreeing to test the well for water when so required.

The well had been sunk the requisite depth, and tested, and sufficient water found, and the contractor’s machinery was left standing at the place, for the convenience of defendants-, when one Foth, who was an agent of one Seagul for the purpose of procuring contracts to explode dynamite in Artesian wells, suggested to defendants to have a torpedo exploded in the well.

After discussion the suggestion was agreed to, the explosion had, and injuries to the well occurred, rendering necessary the repairs to recover for which this action is brought.

Foth was also in the employ of the contractor as accountant he made out bills, and sometimes received payments, and had been often seen around the works and defendants erroneously supposed him to represent the contractor in his general business.

For these reasons defendants claim that the contractor is responsible for the act of Foth in exploding the torpedo, and that plaintiff cannot recover.

It is not contended that the act of Foth was within the limits of any authority which he possessed from Button. His employment was in clerical work requiring no skill in practical affairs.

Nor is it shown that Button had any knowledge that Foth had ever assumed to exercise any authority around the works.

The authorities cited by respondents to sustain the judgment are all cases where tbe negligent act of the agent, for which his principal was held responsible, was within the limits of his authority. In 64 N. Y., 137, cited by defendants, the court says, “ It is conceded that the removal of the plaintiff from the car was within the scope of the authority conferred upon the brakeman.”

In 85 N. Y., 214, it was the superintendent of the boiler factory who applied the dangerous pressure that caused the explosion. In 87 N. Y., 535, it was the negligence of those in charge of the ferry-boat in directing its course that rendered the owner of the boat responsible for the collision.

It is evident that these authorities do not afford support to the claim made here, that a principal can be made responsible for the act of a servant wholly outside of his employment.

To render a principal liable for his servant’s negligence, the act complained of. must be within the actual limit of the servant’s employment.

It may also be mentioned that no suggestion is made that the opinion of Foth upon which defendants acted, was not given in good faith. The explosion was not the act of Foth but of Seagul.

And it is not shown, unless by argument from the unfortunate result, that Seagul was guilty of any negligence.

The testimony of Cruger “ that he was informed the torpedo was exploded a short distance below the surface of the rock ” was objected to as hearsay, and the exception to its admission must be sustained.

It remains to be considered whether Button waived his right to compensation, by making the repairs under a statement that if he did not make them the defendants would not pay him what he had already earned, and would themselves make the repairs at his expense.

We. see no evidence of waiver. The work was done at the instance of defendants and for their benefit.

That ordinarily renders the benefited party hable ; we do not see that his liability is diminished by the fact that he not only requests the work to be done, but compels it.

The money due the contractor was in the defendant’s hands, and when they refuse to pay, except upon unreasonable terms, the act is analogous to that of a carrier who refuses to deliver goods except upon the payment of more money than is due.

The consignee can in such case pay the demand as made, and have his action to recover back the overplus of freight paid. The doctrine is that the holder of the goods takes an unjust advantage of the situation, and that the party yielding to the pressure is not bound by his act.

The waiver being in a sense compulsory, he is not bound by it. See also 91 N. Y., 401.

It seems that Button failed to pay a bill of 118.07. wbieh defendants assumed to pay and deduct from tbe amount due bim, by wbat authority does not appear.

It results from tbe foregoing views, that, in addition to tbe $128.70, which plaintiff was allowed to recover, tbe verdict ordered in bis favor should have been larger by tbe value of tbe extra work with interest, and also by the sum of $18.07. which defendants were erroneously allowed to deduct.

Judgment reversed, new trial ordered, costs to abide event.

Babeabd P. J., and Dykman J., concur.


author: Dykman J.

text:
    William Biggs, resp’t, v. Martin Schultz et al., appl’ts.

      (Supreme Court General Term, Second Department,

      Filed December 14th,1886.)
    False Impeisonment — Veedict — Motion foe new teial — Excessive DAMAGES.
    In an action to recover damages for false imprisonment, a verdict was rendered for the plaintiff, a motion having heen made upon the judge’s minutes for a new trial upon the ground that the damages found by the jury were excessive. On an appeal from the order, the General Term Seld, that the cause of action was fully discussed on the trial, and the jury instructed upon the question of damages and that there being no misapprehension or mistake, although the verdict might he larger than they themselves would have made it, yet as it was not so large as to indicate passion or prejudice, they would not set it aside.
    Appeal from a judgment entered upon a verdict in an action for false imprisonment.
    Tbe eviden ce disclosed tbe following facts:
    In July, 1885, tbe defendant, The Knickerbocker Steamboat Company, was the lessee, under a lease from James S. Remsen and Margaret Wainwright, of a dock at Rockaway Beach, at which its steamboats landed their passengers; and bad an exclusive right to tbe whole of said dock, except so much of it as was occupied by a restaurant or chowder-house, situated near tbe centre of tbe dock. Tbe defendant Hoffmire was tbe President of said company, and tbe defendant Shultz was tbe dock-master. Tbe cbowder-bouse was occupied by tbe firm of Bros-nan & Tierney, under a lease from tbe same lessors. Their lease was made several months subsequently to that tbe steamboat company, and, in express terms, excluded tbe dock. Prior to the time next mentioned, Brosnan & Tierney sublet to plaintiff tbe privilege ‘of vending crabs at a stand inside the chowder-house. Plaintiff subsequently claimed that they also granted bim tbe privilege of selling crabs outside the chowder-house, on the dock, and he accordingly took a position outside between the cbowder-bouse and the landward end of the dock, and directly in the line of passage of the patrons of the Steamboat Company between their boats and tlie beach, and there sold his crabs from day to day. Against this invasión of their rights the officers of the Steamboat Company protested. They repeatedly told plaintiff he had no right there, and endeavored to persuade him to respect their rights, and to return to his own place within the chowder-house. Brosnan & Tierney also spoke to him about it and forbade his vending crabs outside of the chowder-house. But he heeded neither. Then they attempted to remove him and his basket of crabs and he resisted. This was about Thursday, the 9th of July. The next day ( Friday), the president of the Steamboat Company, the defendant Hoff-mire, expostulated with him, when he promised that if allowed to sell on the dock what crabs he had there that day, he would then go away He was allowed to remain and close out his stock, but the next day he was there again. Mr. Hoffmire then, acting under mistaken legal advice, instructed the dockmaster to have plaintiff arrested if he came there again and persisted in trespassing on the dock. On Sunday morning, July 12, at about 10.30 o’clock, plaintiff landed on the dock from the Canarsie boat with his basket of crabs. The dockmaster told him he had orders not to allow him to sell any crabs on the dock outside of the chowder-house, and asked him to go to his place inside, and told him if he didn’t he would get into trouble. To this plaintiff replied insolently and defiantly, and said he wouldn’t leave the dock until arrested. The dockmaster pleaded with him not to make trouble, but without avail. Plaintiff declared that he would sell his crabs in spite of Shultz, and that he wanted to be arrested. Mr. Remsen, one of the owners and lessors of the dock, also expostulated with him, and sought to persuade him to leave the dock. Shultz then called Mr. Carpenter, a police officer, and told him he wanted that man off the dock. Carpenter said, “Biggs, you will have to stop selling or I will have to arrest you,” to which Biggs replied, “ That is just what I want.” Carpenter then arrested him, and turned him over to Timothy Jones, a Hempstead constable, who took him to Long Island City and locked him up until the next morning, when he was taken before a magistrate, where Shultz made a charge against him of “malicious trespass.” The magistrate allowed Biggs to go on his own recognizance until the following Friday, when the case was dismissed. Upon these facts the jury gave Biggs a verdict for $1,000. The defendants moved for a new trial upon the minutes on the ground that the verdict was excessive, which motion was denied, and an order denying the same was duly entered. The defendants in due time appealed from the judgment and from the order denying said motion.

      William H. Graynor, for respondent; Blair, Snow, & Rudd, for appellants.
   Dykman J.

This is an action for false imprisonment, and the jury rendered a verdict for the plaintiff for one thousand dollars. The defendants have appealed and seek a reversal of the judgment, solely because the verdict was excessive.

The cause of action was fully disclosed on the trial and the jury was instructed upon the question of damages, and there was neither misapprehension nor mistake.

Although the verdict may be larger than we would make it, yet we cannot say it was excessive. We cannot say that its size shows, or evinces passion or prejudice, and so we cannot tear it down.

The judgment and order denying the motion for new trial should be affirmed with costs.

Barnard P. J. and Pratt, J., concur.


text:
    Amos Bryan, Resp’t, v. George Wilson et al., Appl’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)
    Evidence — New Trial — Vebdict — Contrary to evidence.
    In this action the plaintiff’s claim was upheld only by his testimony, which was of an improbable nature. Opposed to this was the testimony of the defendant and corroborating witnesses. A verdict having been rendered in the plaintiff’s favor, and defendant’s motion for a new trial on the judge’s minutes denied, on appeal to the General Term, the order of the trial judge was reversed and new trial granted.
    Appeal from a judgment of the County Court of Duchess County, entered upon a verdict and from an order denying a motion for a new trial upon the judge’s minutes: n

      A. M. § G. Caw, for app’lts; George C. Titus, for resp’ts.
   Dykman, J.

A perusal of the testimony upon which the verdict in this action was made, leaves a strong and abiding impression that the result of the trial was a miscarriage of justice

The action is for the recovery of damages for a breach of an agreement for the manufacture of a number of fanning mills.

The plaintiff was his own and only witness to prove the contract, and his testimony is substantially this: he says he had a written contract with one Platt, by which the latter agreed to manufacture for him fifty fanning mills for eighteen dollars each, which he sold for thirty-five. That Platt abandoned the contract or failed in its performance and paid him one hundred and fifty dollars for a release therefrom. Then he says that Wilson, one of these defendants, who understood these machines and who knew that Platt claimed he was losing money by their construction, and was aware of the settlement he made with the plaintiff and the money he paid to secure his release, and that he had agreed to build the mills for seventeen dollars below their value, in the full possession of all this knowledge assumed tbe contract of Platt and agreed to manufacture the same number of mills in the same manner and for the same price.

In view of these surrounding facts and circumstances the testimony of the plaintiff is sufficiently startling and improbable to require an endowment of extraordinary credulity for its reception. Weakened as it was by inherent improbabilities, it was substantially destroyed by the testimony on the part of the defendants.

Wilson, with whom the plaintiff claims he made the contract, denies the same absolutely, and the testimony of Platt, the original contractor, shows that Wilson was not present, and that the defendant Eaton and the witness Barry were present.

The defendant Eaton testified that the conversation was with him and that after the cancellation of the Platt contract the plaintiff “steps forward and says, ‘Now we can make our contract.’ “ No, Mr. Bryan, I have seen enough of your contracts, I will make no contract with you; all I will do will be to go on and finish these mills the best I can.”

That evidence was corroborated by the testimony of David Barry with great precision and accuracy, and coheres so naturally and is so consistent and so much in accordance with the position that Eaton might be expected to assume, that it commands credibility and belief.

Aside from the testimony of the plaintiff himself the teaching of the evidence is in opposition to the formation of any specific contract on the part of the defendants.

We reach the conclusion without hesitation that the verdict was against the evidence and should be set aside.

The judgment and order' denying the motion for a new trial should be reversed, and a new trial granted with costs to abide the event.

Barnard P. J., and Pratt J., concur.